IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 206 of 2000. Date of decision: 28.5.2010. Yashpal & anr. ….. Appellants. Vs. Smt. Urmila Devi & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. H.K.Bhardwaj, Advocate. For the Respondents : Mr. R.K.Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. Kuldip Singh, Judge (Oral). Om Parkash alias Parkash Chand predecessor-in- interest of respondents had filed a suit for permanent prohibitory injunction and in alternative for possession against the appellants. The suit being Civil Suit No. 92/87 was decreed by the learned Sub Judge Ist Class, Court No.2, Amb on 12.10.1993. The learned Addl. District Judge (1), Kangra in Civil Appeal No. 220/93 (RBT No. 235/94) vide judgement, decree dated 6.1.2000 has affirmed the judgement, decree dated 12.10.1993 of the trial court. The second appeal has been filed by the defendants. 2. The facts in brief are that Om Parkash alias Parkash Chand had filed a suit for permanent prohibitory injunction restraining the appellants from interfering in his possession and raising any Whether the reporters of the local papers may be allowed to see the Judgment? …2… construction over land comprised in khasra No. 1216, measuring 2 Kanals 14 marlas, village Kalroohi, Tehsil and District Una. In alternative, a prayer for possession and demolition of construction raised during the pendency of the suit was also made. 3. The further case of Om Parkash alias Parkash Chand was that land comprised in khasra No. 1216, measuring 2-14 Kanals was in possession of Om Parkash alias Parkash Chand and Dev Raj previously as tenants at will. On commencement of H.P. Tenancy and Land Reforms Act, they have become owners of the said land. The appellants have no right, title or interest in the land. The appellants in connivance with Dev Raj had threatened to interfere, raise construction and dispossess Om Parkash alias Parkash Chand from the suit property. In these circumstances, the suit was filed. 4. The suit was contested by the appellant on several grounds, such as, maintainability, estoppel. They took the plea that suit land had been in exclusive possession of the appellants as Hissadar owners and their abadies were existing on the suit land. The abadi was earlier in possession of Mahanti Devi, who gifted the same alongwith other property to appellants and their brothers about 27 years ago. At that time, the appellants were minor and their father Dev Raj and uncle Om Parkash in connivance with the revenue staff had procured wrong and illegal entry in the column of possession as tenant under appellants and other co-sharers. They were never inducted as tenants. Dev Raj had separated 12 years ago from his sons. The suit land had fallen to the shares of the appellants. They …3… have improved the suit property by spending about Rs.25,000/-. They have inducted even some tenants in the residential portion. 5. The replication was filed in which defence of appellants was denied. On the pleadings of the parties, the following issues were framed:- 1. Whether Om Parkash and Dev Raj were tenants at will of the suit land, and became owners? OPP. 2. Whether plaintiff is entitled to relief of injunction? OPP. 3. Whether suit land was gifted by Mahanti Devi to defendants No. 1 and 2, and Om Parkash and Dev Raj were never inducted as tenants? OPD. 4. Whether entries in name of Om Parkash and Dev Raj as tenants at will are collusive and wrong? OPD. 5. Relief. 6. The trial court under issue No. 1 has held that Om Parkash and Dev Raj are co-tenants but had not acquired any proprietary rights. The issue No. 2 was answered in affirmative, under issue No. 3 it was held that Mahanti Devi had gifted the suit property to appellants alongwith their brothers, the issue No. 4 was answered in negative and the suit was decreed by the learned Sub Judge on 12.10.1993. In appeal, on 6.1.2000 the learned Addl. District Judge has affirmed the judgement, decree dated 12.10.1993. …4… The defendants have filed the second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act apply to the land in dispute in which abadi has been constructed? 2. Whether in view of the above situation the suit of the plaintiff was maintainable? 3. Whether the Courts below have misinterpreted and misread the documentary and oral evidence adduced by the parties? 7. I have heard the learned counsel for the parties and have also gone through the record. Mr. Bhardwaj, learned counsel for the appellants has submitted that the two courts below have misconstrued, misinterpreted the evidence on record. The view taken by the two courts below does not emerge from the evidence on record. He has prayed for setting-aside of the impugned judgement, decree and dismissal of the suit. Mr. R.K.Gautam, learned Senior Advocate has submitted that no fault can be found with the impugned judgement, decree. The two courts below have recorded a finding of fact, which is based upon the evidence on record, more particularly, the judgement rendered by the High Court in RSA No. 97/78 Ex. P 7. He has submitted that even if it is admitted that Mahanti had gifted some property to appellants that will not make any difference inasmuch as the appellants will step into the shoes of Mahanti Devi and status of Om Parkash alias Parkash Chand and his successors will not change. …5… 8. The aforesaid substantial questions of law No. 1 to 3 are interconnected, therefore, all of them are taken up collectively for disposal. Dasaundhi predecessor of Om Parkash alias Parkash Chand and Dev Raj has been recorded as tenant in jamabandi for the year 1946-47 Ex. P-3. In the jamabandi for the year 1955-56 Ex. P 4 Om Parkash alias Parkash Chand and Dev Raj are recorded as tenants under Mahanti Devi after the death of her husband Jallah. In misal hakiyat for the year 1961-62 Om Parkash and Dev Raj are again recorded as tenants over khasra No. 1216, which was carved out from khasra No. 1089/2 measuring 2 kanals 14 marlas. 9. It has come on record that earlier Om Parkash alias Parkash Chand had filed a suit against Dev Raj and others seeking permanent prohibitory injunction regarding the same land on the grounds that Om Parkash and Dev Raj are joint tenants, but Dev Raj wanted to oust him from the land in question. The suit was dismissed, but in appeal the learned District Judge vide judgement dated 18.9.1978 had reversed the judgement, decree of the trial court and decreed the suit. Om Parkash was declared tenant alongwith Dev Raj on the land in question and a decree for permanent prohibitory injunction restraining Dev Raj from ousting Om Parkash forcibly from the land in question was granted. The matter was carried in RSA No. 97 of 1978, but High Court vide judgement dated 9.5.1989 Ex. P 7 dismissed the appeal. In these circumstances, the right of Om Parkash alias Parkash Chand plaintiff on the suit land was unequivocally established by judgement Ex. P 7. The substantial question of law No. 1 loses significance in view of judgement Ex. P 7. …6… 10. The two courts below have rightly considered the oral and documentary evidence on record. There is no perversity in the impugned judgement. The learned counsel for the appellants has failed to point out any misconstruction and misinterpretation of oral and documentary evidence. There is no merit in the appeal. The substantial questions of law No. 1 to 3 are decided against the appellants. 11. No other point has been urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed. May 28, 2010. ( Kuldip Singh ), (Hem) Judge.