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2012 DIGILAW 19 (HP)

Jati Ram v. Partap Singh

2012-01-05

KULDIP SINGH

body2012
ORDER : Kuldip Singh, J. The defendants are in second appeal against judgment, decree dated 16.5.2002 passed by learned District Judge, Sirmaur, District at Nahanj in Civil Appeal No. 44-CA/13 of 2001, affirming judgment, decree dated 10.1.2001 passed by learned Senior Sub Judge, Sirmaur, District at Nahan in Civil Suit No. 184/1 of 2000. 2. The brief facts of the case are that respondent had filed a suit for permanent prohibitory injunction against the defendants regarding land comprised in Khasra No. 1282/1131/18/2, measuring 5 bighas situate in village Lana Cheta, Tehsil Renuka Ji, District Sirmaur, H.P. It has been alleged that on 1.6.1979 mutation No. 427 was sanctioned in favour of Nihal Singh, father of the respondent and after the death of Nihal Singh, the respondent is coming in peaceful physical possession of the suit land. 3. Balak Ram and Surtu filed a complaint against the father of respondent for cancellation of patta which was allowed and the patta was cancelled after the death of Nihal Singh. The respondent was minor, he was not aware of this. He had filed a review petition before Sub Divisional Collector, Nahan. The possession of the suit land remained with the respondent to the knowledge of State Government. It has been stated that the suit land has been made cultivable by respondent by spending huge amount. The appellants have no right, title or interest over the suit land. In the first week of April, 2000, the appellants threatened to interfere in the possession of the respondent with a view to raise construction. In these circumstances, the suit was filed. 4. The suit was contested by appellants by filing joint written statement in which preliminary objections of maintainability, concealment of material facts, cause of action, the appellants are in possession of the suit land as non-occupancy tenants, non-joinder of necessary parties and ambiguities in the plaint were taken. On merits, the appellants have pleaded that they are non-occupancy tenants over the suit land for the last several years. It has been stated that State of Himachal Pradesh is owner of the suit land after coming into force of H.P. Village Common Land Vesting and Utilisation Act, 1974. 5. It has been pleaded that State Government allotted patta of suit land in favour of Nihal Singh father of the respondent. It has been stated that State of Himachal Pradesh is owner of the suit land after coming into force of H.P. Village Common Land Vesting and Utilisation Act, 1974. 5. It has been pleaded that State Government allotted patta of suit land in favour of Nihal Singh father of the respondent. The appellants raised objection against the allotment and Sub Divisional Collector on 27.3.1981 cancelled the patta of Nihal Singh. The suit land was ordered to be recorded in the name of State of Himachal Pradesh. It has been pleaded that appellants continued in possession of the suit land as non-occupancy tenants. The revenue entries showing contrary possession are wrong. 6. It has been denied that respondent has made the suit land cultivable. They have asserted that a pucca house has been constructed by appellants on a portion of the suit land about 5/6 years ago. The respondent or his father never remained in possession of the suit land. Therefore, there is no question of interference by appellants in the alleged possession of respondent over the suit land. The State of Himachal Pradesh has not been impleaded as party in the suit. 7. On the pleadings of the parties, the following issues were framed:- (i) Whether the plaintiff is coming in peaceful physical possession of the suit land? OPP. (ii) Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? OPP (iii) Whether the suit is not maintainable? OPD. (iv) Whether the plaintiff has no cause of action to file the suit? OPD (v) Whether the suit is bad for non-joinder of necessary parties? OPD. (vi) Whether the defendants are in possession of the suit land? OPD (vii) Relief. The issues No. 1, 2 were answered in affirmative, issues No. 3, 4 were held to be redundant, issue No. 5 was not pressed, issue No. 6 was held in negative. The learned Senior Sub Judge decreed the suit on 10.1.2001 as per operative part of the judgment. In appeal learned District Judge on 16.5.2002 upheld the judgment, decree dated 10.1.2001, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the trial Court below has wrongly rejected the application of the appellants under Order 26 Rule 9 and Order 18 Rule 18 of CPC ? 2. In appeal learned District Judge on 16.5.2002 upheld the judgment, decree dated 10.1.2001, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the trial Court below has wrongly rejected the application of the appellants under Order 26 Rule 9 and Order 18 Rule 18 of CPC ? 2. Whether the Courts below have wrongly and illegally decided the issue No. 5 i.e. 'whether the suit is bad for non-joinder of necessary parties'? 8. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that the Court below has erred in not allowing the application of the appellants under Order 26 Rule 9 and Order 18 Rule 18 CPC. The issue No. 5 of non-joinder of necessary parties has wrongly been decided by the Courts below against the appellants. The prayer has been made for allowing the appeal and setting aside the impugned judgment, decree. The learned counsel for the respondent has supported the impugned judgment, decree and has submitted that no interference is required in the second appeal. 9. The substantial question of law No. 1 is taken up first for determination. The appellants had filed application dated 11.8.2000 under Order 18 Rule 18 read with Order 26 Rule 9 and Section 151 CPC. In the application, it has been stated that in order to arrive at just conclusion as to which party is actually in possession of the suit land, it is necessary that Court should inspect the spot, in alternative a request was made that Local Commissioner be appointed in order to ascertain whether there existed a house of appellants over any portion of the suit land. 10. The suit is to be decided on the basis of evidence on record and not on the basis of Local inspection carried out by the Court. The local inspection in a given situation may be necessary to evaluate the evidence but local inspection cannot substitute the evidence. The appellants have taken the defence that they have constructed house over a portion of the suit land. This defence of the appellants is required to be proved by evidence and for that purpose inspection by the Local Commissioner is not necessary, more particularly, when the appellants have not raised boundary dispute. 11. The appellants have taken the defence that they have constructed house over a portion of the suit land. This defence of the appellants is required to be proved by evidence and for that purpose inspection by the Local Commissioner is not necessary, more particularly, when the appellants have not raised boundary dispute. 11. The request made by the appellants for spot inspection and appointment of Local Commissioner cannot be considered favourably in view of controversy involved in the present case. The evidence has been considered by the two Courts below and the Courts below have not found any boundary dispute nor felt difficulty in identifying the suit land or deciding the lis between the parties, therefore, it was not necessary for the Courts below to inspect the spot or appoint Local Commissioner to visit the spot. 12. The appellants have failed to make out a case for inspection of the spot by the Court or appointment of Local Commissioner for local inspection. It is not the case of the appellants that any material evidence has been ignored by the Courts below or inadmissible evidence has been considered by the two Courts below while giving relief to the respondent. The substantial question of law No. 1 is decided against the appellants. 13. The substantial question of law No. 2 has also no merit. The suit has been filed on the basis of possession by the respondent. The appellants pleaded their possession over the suit land as non-occupancy tenants but they have failed to prove their possession on any part of the suit land. The respondent in the suit has pleaded interference by the appellants and none other. In these circumstances, except appellants no other was required to be impleaded as party in the suit. No relief has been prayed against State of Himachal Pradesh, therefore, State of Himachal Pradesh is not a necessary party. The decision in the suit filed by respondent is not binding on State of H.P. In addition, the appellants in the trial Court did not press the issue No. 5 of necessary party which is clear from the judgment of the learned trial Court. Thus, seen from any angle there is no merit in support of substantial question of law No. 2 which is decided against the appellants. 14. No other point was urged. 15. The result of above discussion, the appeal fails which is accordingly dismissed.