RSA/42/2010 on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

RSA No.: 42 of 2010.

Decided on: 29.12.2010. __________________________________________________________

Mohinder Singh and others.

… Appellants.

Versus

Mast Ram and others.

… Respondents.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, J.

Whether approved for reporting?1 No.

For the Appellants : Mr. Neel Kamal Sood, Advocate.

For the Respondents : Mr. Romesh Verma, Advocate.

Rajiv Sharma, J. (Oral):

This regular second appeal is directed against the judgment and decree dated 3.11.2009 rendered by the learned District Judge, Hamirpur in Civil Appeal No.8 of 2007.

2. Material facts necessary for adjudication of this appeal are that the appellants/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had instituted a suit against the respondents/ defendants (hereinafter referred to as the defendants) for permanent prohibitory injunction with the averments that the land detailed in plaint is owned and possessed by them alongwith their brothers. It is averred that the defendants are strangers to the suit land and they have no right, title or interest over the suit land. The respondents/defendants have started 1 Whether the reporters of Local Papers may be allowed to see the judgment? No.

unauthorized interference over the suit land. The suit was contested by the defendants. It is averred on merits by the defendants that the land in dispute is in their exclusive possession since the time of their ancestors which is cultivable one and Dofasli and Nehari Abbal. The trial Court framed the issued on 27.9.2000. The trial Court dismissed the suit on 30.9.2006. Plaintiffs preferred an appeal before the learned District Judge, Hamirpur. The same was dismissed by the learned District Judge on 3.11.2009. Hence, the present regular second appeal.

3. Mr. Neel Kamal Sood, learned counsel for the appellants has strenuously argued that the judgments and decrees passed by both the Courts below are contrary to the principles of law. According to him, both the learned Courts below have misread and misappreciated the evidence, oral as well as documentary. According to him, the plaintiffs have proved their possession over the suit land. Mr. Romesh Verma, learned counsel for the defendants has supported the findings recorded by both the courts below.

4. I have heard the learned counsel for the parties and gone through the judgments and decrees passed by both the courts below carefully.

5. Plaintiff, Mohinder Singh has appeared as PW-1. According to him, the suit land is about 7½ kanals which was owned and possessed by him. According to him, the defendants have nothing to do with the suit land nor have they ever remained in possession of the same. He further stated that the defendants have started interfering in their peaceful possession in the month of June, 1996. In cross-examination he has stated that earlier the land was owned by Raja of Nadaun. He has purchased the land in 1993. He has further stated that earlier the land was in the shape of Khad, however, now it is cultivable. He has also admitted that the defendants have also purchased the land in 1996. He has categorically admitted that the land was owned and possessed by the defendants. He has produced Shri Kuldip Chand in rebuttal as PW-2. PW-2 has deposed that plaintiff, Mohinder Singh was owner of the suit land and he was cultivating the same. He has stated that the suit land was never demarcated in his presence. He has shown his ignorance as to who used to cultivate the land of Raja of Nadaun.

6. Defendant, Mast Ram has appeared as DW-1. According to him, the defendants were in possession of the suit land since the time of their ancestors. He has stated that he had purchased the land from Raja of Nadaun in 1995. He also admitted that the plaintiffs have also purchased land prior to their purchase of land in the same khata. According to him, the plaintiffs have never remained in possession over the suit land. The statement of DW-1 has been duly supported by DW-2 Kishore Chand and DW-4 Shri Bhim Singh, who was posted as Kanungo (Settlement). He has proved on record his report DW-4/A. He has also proved on record the statements of the parties Ex.PW-4/B and Ex. PW-4/C. He has denied specifically that the plaintiffs were in possession of the suit land. DW-5 and DW-6 have also supported the version of the defendants. Plaintiffs have failed to establish by any tangible evidence that they are owners in possession of the suit land, rather, PW-1 Mohinder Singh has admitted that the defendants were in possession of the suit land. Since the plaintiffs are out of possession, they are not entitled to injunction. The defendants are in possession of the suit land. The plaintiffs have neither produced the sale deed nor any tatima to establish sale of the land.

7. Accordingly, there is no substantial question of law arising in this regular second appeal. The findings recorded by both the courts below are on correct appreciation of evidence, oral as well as documentary. Consequently, there is no merit in this regular second appeal and the same is dismissed. The records of the courts below be sent back.

(Rajiv Sharma),

Judge. December 29, 2010. (sck).