JUDGMENT : Tarlok Singh Chauhan, J. Cmp No. 7860 of 2017 By medium of this application, the applicant/plaintiff has sought amendment of the written statement to the counter claim filed by defendants/ respondents whereby he sought to add following paragraph in reply to para 1 of the written statement after the words "the recovery of alleged rent". "That the claim of the defendant for recovery of the possession of the shop is based on the plea that the same was let out to the plaintiff. The plaintiff submits that the shop was not rented out to the plaintiff as claimed by defendant, still the tenancy of the plaintiff in the shop having not been determined in accordance with law, the suit is not maintainable. The plaintiff also submits that the shop had collapsed five years back and as such the claim for recovery of rent ever since the shop has collapsed is not maintainable and in any event the plaintiff is prepared to compensate the defendant by giving the adjoining land out of his own adjoining land along the side of the shop in dispute on which collapsed shop exists and as such to end the dispute." 2. The respondents have contested the application by filing reply wherein preliminary objections regarding estoppel, limitation etc. were raised. On merits, it has been averred that the double storeyed structure of the shop regarding which the counter claim has been filed is still existing on the spot and the photographs appended with the applications are not pertaining to the shop in question and are of some other structure or accommodation owned and possessed by the defendants. 3. The right to amend the pleadings especially after the amendment in the Code is not an indefeasible right. The suit in the instant case was instituted on 05.06.2002 whereas the present application is moved after a lapse of 17 years. No doubt the applicant/plaintiff would claim that the cause of action has arisen as the structure has collapsed when the proceedings were pending in the learned first appellate Court. However, this fact is disputed by the defendants, even otherwise not substantiated by any material on record. The amendment is not necessary for the just and proper decision of the case. 4. However, this fact is disputed by the defendants, even otherwise not substantiated by any material on record. The amendment is not necessary for the just and proper decision of the case. 4. Lastly, the plaintiff has failed to show any due diligence in filing of the application and the same has been filed only with the clear intent of delaying the outcome of the lis and, therefore, merits dismissal and is accordingly dismissed as such. RSA No. 362 of 2015 5. The plaintiff is the appellant, who after having lost before both the learned Courts below, has filed the instant regular second appeal. 6. The parties hereinafter shall be referred as were before learned trial court. 7. Briefly stated facts of the case are that Shri Rajinder Prashad and his wife Kamlesh Kumari as plaintiffs filed a suit for possession by way of partition and injunction with respect to land comprised in Khata No. 23, Khatoni Nos. 45, 46, 47, Khasra Nos. 455, 456, 458, 459, 457, 450 kita 6 measuring 0-16-06 hectares situated in tika Fastey, Tappa Saproh, Tehsil Nadaun, District Hamirpur (HP) as per Missal Hakiat Bandobast for the year 1994- 95 (to be hereinafter referred as suit land/property) with averments that the same is jointly owned and possessed by the parties and as yet has not been partitioned by regular process of law. Due to jointness, the plaintiffs are unable to make best use of the share of their land and further there always remains a dispute qua share and possession. The suit land is in the shape of Gair Mumkin Abadi, gohad etc. The land comprised in Khatoni No. 47, Khasra No. 450 measuring 0-02-36 hectares in the column of possession has been shown in the name of HPPWD without any legal status and the plaintiffs reserve their right of possession to that efect. Hence the present suit. 8. Defendants No. 1 in a separate written statement averred that the suit land though is joint but the column of possession of Missal Hakiat does not carry true position. The parties are in separate possession at the spot. There exists a shop double storeyed 20x20 feet slateposh alongwith a room adjoining to the same which is in exclusive ownership of defendant No. 1. The shop measuring 20x20 feet double storeyed was given on rent to plaintiff on 23.03.1999 on monthly rent of Rs.300/-. The parties are in separate possession at the spot. There exists a shop double storeyed 20x20 feet slateposh alongwith a room adjoining to the same which is in exclusive ownership of defendant No. 1. The shop measuring 20x20 feet double storeyed was given on rent to plaintiff on 23.03.1999 on monthly rent of Rs.300/-. A rent deed was executed to this efect. Further averred that HPPWD is necessary party and this court has no jurisdiction as major part of suit land is comprised of cultivated land. 9. Defendants No. 2 and 3 in their separate written statement while raising no objection for partition of the suit land/property as per their shares alleged that they are in exclusive possession over Khasra No. 457 measuring 0-00-84 hectares by way of construction of their Abadi and the same be allotted to them. 10. In replication, the plaintiffs while controverting the case of defendant No.1, reasserted their case as set out in the plaint. 11. Defendant No. 1 Janak Singh (now deceased) filed a counter claim with respect to suit land/property by seeking relief of declaration with respect to entries in the column of possession of the revenue record and further for possession and recovery of rent. It is averred that there exists a shop 20x20 feet double storeyed slateposh along with a room 8x16 feet adjoining to same over the suit land which have been constructed by him. On the request of plaintiff Rajinder, the said shop double storeyed slatepost was given on rent to him vide rent deed dated 23.3.1999 at monthly rent of Rs.300/-. The plaintiffs with ulterior motive and in league with settlement staf got the revenue entries in the column of possession changed in their favour without his knowledge. The plaintiff Rajinder was served with a notice to pay the rent as per agreement dated 23.03.1999 and to vacate the shop but in vain. He was also requested to get the entries changed but to no avail. Hence, this counter claim. 12. The plaintiffs contested the counter claim and filed written statement raising preliminary objections of maintainability, estoppel and that of limitation. On merits averred that the said shops and room are owned and possessed by them and as such there arises no question of creation of tenancy as well as the payment of rent. Hence, this counter claim. 12. The plaintiffs contested the counter claim and filed written statement raising preliminary objections of maintainability, estoppel and that of limitation. On merits averred that the said shops and room are owned and possessed by them and as such there arises no question of creation of tenancy as well as the payment of rent. The notice issued was based upon false allegations as such there was no necessity to answer the same. The prayer was made for the dismissal of the counter claim. 13. In replication by defendant/counter claimant Janak Raj, the case made out in the counter claim was reasserted. 14. The learned lower court on going through pleadings of the parties framed following issues on 25.04.2009 :- "1. Whether the plaintiffs are entitled for possession of their shares in the suit land by way of partition? OPP 2. Whether the plaintiffs are entitled for possession of the suit land by way of demolition of super-structure, as alleged? OPP 3. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 4. Whether the plaintiffs have no cause of action to file the present suit? OPD 5. Whether the plaintiff are estopped from filing the present suit by their own acts and conduct? OPD 6. Whether the suit is barred by the principle of res-judicata? OPD 7. Whether the entries appearing in the record of rights pertaining to the year 1994-95 in the column of possession in respect of land of Khata No. 23, Khatauni Nos. 45 and 47, Khasra Nos. 455, 456, 458, 459, 457, 450 area measuring 0-16-06 hectares, are wrong and illegal? OPCD 8. Whether the counter plaintiffs are entitled for possession of their shares by way of partition, as prayed for? OPCP. 9. Whether the counter plaintiffs are entitled for recovery of rent at the rate of Rs.300/- per month, as prayed for? OPCP 10. Whether the counter plaintiffs estopped from filing the present counter claim by their own acts and conduct, as prayed for? OPCP 11. Whether the counter claim is time barred? OPCD 12. Relief." 15. The learned lower court on going through the pleading and evidence on record decreed the suit of the plaintiffs by passing a preliminary decree of partition. Whether the counter plaintiffs estopped from filing the present counter claim by their own acts and conduct, as prayed for? OPCP 11. Whether the counter claim is time barred? OPCD 12. Relief." 15. The learned lower court on going through the pleading and evidence on record decreed the suit of the plaintiffs by passing a preliminary decree of partition. The counter claim of defendant Janak Raj was also decreed with respect to correction of entries qua his structure contained in site plan Ext.DW1/A and for recovery of possession as well as rent with respect to said shop. 16. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiffs preferred an appeal before the learned first Appellate Court, however, the same came to be dismissed vide judgment and decree dated 08.05.2015, constraining the appellants to file the instant appeal. 17. It is vehemently argued by Mr. K. D. Sood, Senior Advocate, duly assisted by Mr. Ramakant Sharma, Advocate, that the findings recorded by the learned Courts below are totally perverse and, therefore, deserve to be set aside. Whereas on the other hand, Mr. G. D. Verma, Sr. Advocate, duly assisted by Mr. B.C. Verma, Advocate, would argue that findings arrived at by the learned Courts below are pure finding of facts and, therefore, immune from interference in the Second Appeal. I have heard learned counsel for the parties and have gone through the records of the case. 18. At the outset, it needs to be noticed that plaintiff as PW1 in his examination-in-chief while seeking partition claimed that the disputed shop belongs to him. However, during cross-examination, he specifically stated that he had purchased a part of suit land in the year 1974-75 from defendant No. 1 Janak Raj and his brother Rattan Singh. He was given an opportunity to produce the said sale deeds on record but despite this he failed to produce the same. Obviously, an adverse inference has to be drawn against him. After all, it is the duty of the party to lead the best evidence in his possession, which can throw light on the issue in controversy and in case such material evidence is withheld the court may draw adverse inference under Section 114 (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce such evidence. (Vide: Murugesam Pillai vs. Gnana Sambandha Pandara Sannadhi, (1917) AIR PC 6; Hiralal & Ors. vs. Badkulal & Ors., (1953) AIR SC 225; A. Raghavamma & Anr. vs. A. Chenchamma & Anr., (1964) AIR SC 136; The Union of India v. Mahadeolal Prabhu Dayal, (1965) AIR SC 1755; Gopal Krishnaji Ketkar vs. Mohammed Haji Latif & Ors., (1968) AIR SC 1413; M.s Bharat Heavy Electrical Ltd. vs. State of U.P. & Ors., (2003) AIR SC 3024; Musauddin Ahmed vs. State of Assam, (2010) AIR SC 3813; and Khatri Hotels Pvt. Ltd. & Anr. vs. Union of India & Anr., (2011) 9 SCC 126 . 19. The plaintiff during his further cross-examination has stated that he is running a shop of Karyana, hardware and as cloth merchant since 1985-86 and claimed that he had constructed a shop in dispute. However, when this version putforth by the plaintiff is read with the evidence of the contesting defendants and the tone and tenor in which the cross-examination of the witness has been conducted, it can safely be said that there is no merit in the said claim and the version putforth by the plaintiff is false. 20. Dw6 Rattan Chand, who is the brother of defendant Janak Raj has specifically stated that his father had constructed two storeyed slateposh shops alongwith Verandah by its side over the suit land. There was a common staircase in between the said shop. The shop on the northern side of the staircase falls to his share which as per sale deed Ext. DW4/B was sold by him in favour of plaintiffs. The other shop measuring 20x20 feet alongwith verandah was owned and possessed by Janak Singh, who had let out the same to the plaintiff Rajinder Parshad on rent. He further stated that plaintiff Rajinder Parshad has constructed new shop about 2 years back which were near to disputed shop. 21. In cross-examination, this witness denied that after the sale by defendant Janak Raj, the land alongwith disputed shop, staircase and verandah came in possession of the plaintiff. The plaintiff himself has suggested to DW6 that the disputed shop was earlier owned by Janak Raj, which clearly evinces the fact that the shop was in existence prior to the sale of the land of his share in the suit land by defendant Janak Raj in favour of the plaintiffs. The plaintiff himself has suggested to DW6 that the disputed shop was earlier owned by Janak Raj, which clearly evinces the fact that the shop was in existence prior to the sale of the land of his share in the suit land by defendant Janak Raj in favour of the plaintiffs. Rather this witness is very specific that the shops as shown in site plan Ext.DW1/A had been constructed by his father and electricity meter in the said shop was also in his name. The site plan as well as photographs, which were duly exhibited on record, clearly show that the shop in question was joint structure which fact finds support not only from the statement of DW6 but also from the sale deed Ext. DW4/B. There is nothing on record to show and prove prior entitlement of the plaintiffs, which clearly belies and falsify the claim of the plaintiffs that the disputed shop was constructed by them. 22. The other evidence of contesting defendant also establishes the fact that the disputed shop had been constructed by Shri Mehar Singh. DW2 Naresh Kumar stated that the shop alongwith Verandah had been constructed by Mehar Singh, who was father of defendant Janak Raj and Rattan Chand. The plaintiff Rajinder Parshad had purchased the Abadi adjoining to staircase from Rattan Chand. In cross-examination this witness suggested that the disputed shop was constructed by Kangru Ram the father of plaintiff Rajinder Parshad, however, such suggestion was denied. 23. Apart from the above, it would be noticed that the plaintiffs themselves are not sure about the stand as they have taken, rather they taken a contrary stand about the construction of the shop. They somewhere alleged that the shops were constructed by them and at the same time they also alleged that these were purchased as such from defendant Janak Raj. 24. Dw3 Jagtar Singh and Mukhtiar Singh have also corroborated the version put-forth by DW2 and DW6 regarding the disputed shop having been constructed by Mehar Singh and the same having been let out to plaintiff Rajinder Parshad by defendant Janak Raj. 25. Moreover the contesting defendants have placed on record rent deed dated 23.03.1999 (Ext. DW2/A), which indicates that the shop was given on rent at the rate of Rs.300/- for 11 months by defendants Janak Raj to plaintiff Rajinder Parshad. 25. Moreover the contesting defendants have placed on record rent deed dated 23.03.1999 (Ext. DW2/A), which indicates that the shop was given on rent at the rate of Rs.300/- for 11 months by defendants Janak Raj to plaintiff Rajinder Parshad. DW4 Deep Kumar as its scribe and Naresh as its witness have supported the fact that this document was executed between the parties in the manner as depicted therein. The document was entered at Serial No. 180, dated 23.03.1999, as is evident from the extract of the Register Ext.DW4/A. 26. The findings recorded by the learned Courts below are pure finding of fact, therefore, warrant no interference and cannot normally be interfered by this Court in exercise of its jurisdiction. 27. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.