IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.223/2002 Reserved on: 3.11.2011 Decided on: 8.11.2011 _____________________________________________ Bhagat Ram. …Appellant. Versus Nanak Chand. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Onkar Jairath, Advocate. For the Respondent: Mr. Himmat Negi, Advocate vice Mr. Ajay Sharma, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 25.2.2002 rendered by the learned District Judge, Una in Civil Appeal No.56 of 1999. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent- plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for permanent injunction 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 against the appellant-defendants (hereinafter referred to as ‘defendants’ for convenience sake) restraining them from interfering or cutting and removing cattle feeding leaves from the trees standing over the land measuring 1-33-34 hectares comprised in Khewat No. 25 min, Khatauni No.34, Khewat No.31, Khatauni No.40 bearing Khasra Nos. 333, 328 and 331. In the alternative, plaintiff prayed for mandatory injunction. It is also alleged that the suit land is owned and possessed by the plaintiff and the defendants have no right or interest in the suit land. Defendants were threatening to remove the cattle feeding leaves from the trees standing over the suit land forcibly for which they have no right to do so. 3. Suit was contested by the defendants. According to the defendants, plaintiff was never the owner nor in possession of the suit land. They were coming in possession of the land since long time as owner. The suit property was purchased by the defendants from the custodian and since the time of sale, the defendants were coming in possession as owner. The replication was filed by the plaintiff. Learned Sub Judge (II), Una decreed the suit on 26.2.1999. Defendants were permanently restrained from interfering or cutting and removing the branches of the trees standing over the suit 3 land. Defendant Bhagat Ram preferred an appeal before the District Judge, Una. He dismissed the same on 25.2.2002. Hence, the present Regular Second Appeal. It was admitted on the following substantial question of law: 1. “Whether the documentary evidence namely Jamabandis Exts.P-1 and P-3 have been misread and misinterpreted by the courts below whereby the respondent-plaintiff has been found having valid and legal title over the suit land? 4. Mr. Onkar Jairath has strenuously argued that both the courts below have misread and mis- appreciated the oral as well as documentary evidence led by the parties. 5. Mr. Himmat Negi has supported the judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the pleadings carefully. 7. Plaintiff has appeared as PW-1. According to him, the suit land is ancestral, which is situated at a distance of 1½ KMs from his house. Abadi of the defendant, namely, Bhagat Ram, was situate near the suit land. The suit land is about 40-45 Kanals. Defendant used to cut the branches of the trees and also raised illegal threats. They removed shesham tree. In 4 his cross-examination, he denied that the suit land was the evacuee property. He has shown his ignorance about the evacuee property being purchased by Bhagat Ram. He has denied that the suit land was in possession of the defendants. PW-2 Rikhi Ram has supported the version of PW-1. 8. DW-1 Bhagat Ram has stated that the suit land was about 78 kanals, which was in his possession. Plaintiff was not in possession of the suit land. The sale deed was executed qua this land when the same was purchased. He did not know on which date the sale deed was executed. He did not know how much land was purchased from the custodian. He did not know the khasra number of the house. 9. DW-2 has corroborated the version of DW-1. However, in his cross-examination he has admitted that his house is at a distance of 3 KMs from the suit land. He owns no land in the village. He has also admitted that defendant Bhagatu used to cut the branches of the trees. 10. DW-3 Basanta has deposed that Bhagat Ram was in possession of the suit land since 1962. He has planted popular trees and other mango trees over the suit land. According to him, Nanak Chand was not in 5 possession of the suit land. He has admitted his litigation with the plaintiff. 11. Plaintiff has proved on record document Ex.P-1 and P-2. According to Ex.P-1, plaintiff is in possession of the suit land comprised in Khasra No. 333. According to Ex.P-2, the copy of Khatauni, khasra Nos. 328 and 331 were owned and possessed by Nanak Chand plaintiff and Smt. Kailasho Devi. In Ex.P-3, Missal Haquiat Bandobast Jadid Sani for the year 1991-92, the same position is recorded as contained in Ex.P-1 and P-2. 12. Plaintiff has conclusively proved that he is owner in possession of the suit land. Defendant has never purchased the suit land from the custodian. He has not led any tangible evidence on record to prove that he has purchased the suit land. Defendant No.1 has given contrary statement. In his cross-examination, he has stated that he has not purchased the suit land and on the same breath he has stated that he has purchased the suit land. He did not know how much land was purchased from the custodian. He has admitted that DW-2 does not belong to the same village. There was litigation between plaintiff and DW-2. Thus, his statement cannot be relied upon. Plaintiff has led 6 tangible evidence to establish that he is exclusive owner of the suit land over Khasra No. 333 and co-owner in possession of Khasra Nos. 328 and 331. Both the courts below have correctly appreciated the oral as well as documentary evidence, including Ex.P1- to P-3. 13. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 8.11. 2011 *awasthi*