1. Instant Regular Second Appeal lays challenge to the judgment and decree dated 21.2.2014, passed by the learned Additional District Judge, Hamirpur, District Hamirpur, H.P., in CA No. 91 of 2012, RBT No. 28/2013, affirming the judgment and decree dated 10.9.2012, passed by the learned Civil Judge ( Jr. Div.), Court No.4, Hamirpur, H.P., whereby civil suit having been filed by the respondent/plaintiff (herein after referred to as “the plaintiff”) under Section 9, 26 Order 7 Rule 1 CPC read with Sections 38 and 39 of Specific Relief Act, 1963, and under Section 106 of Transfer of Property Act for possession, came to be decreed.

2. Briefly stated facts of the case as emerge from the record are that plaintiff filed a suit for vacant possession of slateposh house measuring 35’x12’ and cowshed measuring 10’x8’ situate over land comprised in khata No. 161 Min, Khatauni No. 190, Khasra No. 495, area 1K-08M situate at Tika Kanjian, Mauza Bamson, Tehsil Bhoranj, District Hamirpur, H.P., as per Jamabandi for the year, 2002-03 (in short “the suit land”). Besides above, plaintiff also filed suit for permanent prohibitory injunction restraining the appellants/ defendants (in short “the defendants”) from changing the nature of the suit land/property and also for recovery of use and occupation charges @ Rs.1000/- per month for the preceding three years till handing over the vacant possession of the premises to the plaintiff.

3. Plaintiff averred in the plaint that as per copy of Jamabandi for the year, 2002-03 pertaining to the suit land, plaintiff is shown to be gairmarusi tenant over half share under shamlaat right holders Rajender Dev etc. He alleged that his father constructed slateposh house as well as chowshed over the suit land 80 years ago, which was rented out to Sh. Khazana Ram, predecessor-in-interest of the defendants for Rs100/- per month. He alleged that after death of Sh. Khazana Ram, appellants-defendants being his LRs have been coming in possession over the suit property. He alleged that now since he has retired from his service, he is in bonafide need of the aforesaid house. Since despite there being several requests, defendants failed to vacate the suit property and threatened to demolish the house and construct a new house over the suit land, plaintiff approached the Civil Court by way of suit as detailed herein above.

4. Aforesaid claim came to be refuted by the defendants, who in their written statement, besides taking preliminary objections of maintainability and locus standi claimed on merit that they are owner in possession of the suit property. While specifically denying the claim of the plaintiff qua the ownership of the suit land, defendants submitted that plaintiff has no concern with the suit property. While admitting factum with regard to existence of the house over the suit land, defendants claimed that same is owned by them. They further claimed that plaintiff lives in District Mandi and neither he has paid any house tax nor electricity meter in his name at Village Kanjian. Defendants also denied that the abadi comprising of house and cowshed was given on lease to their predecessor-in-interest Khajana Ram, by predecessor- in-interest of the plaintiff. They also denied the payment of any rent to the plaintiff. On the basis of aforesaid pleadings adduced on record by the respective parties, court below framed following issues:

“1. Whether plaintiff is entitled to the relief of vacant possession of the suit land, as alleged ..OPP

2. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for OPP.

3. Whether the plaintiff is entitled for relief of mandatory injunction, as prayed for ...OPP

4. Whether the suit is not maintainable OPD

5. Whether the plaintiff has no cause of action to file the present suit as alleged OPD

6. Whether the plaintiff is stopped to file the present suit, as alleged …OPD.

7. Whether the suit is bad for mis-joinder of necessary parties, as alleged OPD.

8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged OPD.

9. Relief.”

5. Subsequently, on the basis of pleadings as well as evidence led on record by the respective parties, learned trial Court, vide judgment dated 10.9.2012 decreed the suit of the plaintiff for possession of the slateposh house measuring 35’x12’ and cowshed measuring 10’x8’ situate over the suit land with consequential relief of permanent prohibitory injunction restraining the defendants from changing the nature of the suit property. Learned trial court also directed the defendants to handover the peaceful possession of the property to the plaintiff.

6. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, defendants- appellants filed an appeal in the court of learned Additional District Judge, Hamirpur, which also came to be dismissed vide judgment dated 21.2.2014. In the aforesaid background, defendants-appellants have approached this Court in the instant proceedings, praying therein to set- aside the impugned judgments and decrees passed by the courts below.

7. Vide order dated 17.10.2014, appeal came to be admitted on the following substantial questions of law:

“i). Whether the findings recorded by the learned Courts below are the result of mis-reading , misinterpreting and misconstruing of oral as well as documentary evidence available on record

ii). Whether the judgments and Decree passed by Learned Courts below are sustainable in the eyes of law in view of the fact that Learned Courts below have failed to give its findings specifically in not arraying as necessary parties to Rajender Dev, Bada Ram and Longu Ram which are also shown to be non occupancy tenants

iii). Whether the Learned Courts below have erred in holding that the notice under 106 of Transfer of Property Act has been duly served upon the appellants/defendants

iv). Whether the findings of learned Courts below are correct to the extent of holding that in the absence of lease deed the impugned judgments and decrees cannot be sustained in the eyes of law

v). Whether the findings returned by the Learned courts below are sustainable in the eyes of law in view of the fact that since the plaintiff has failed to prove his holding over the suit land as required under the provisions of section 2 (17) of Himachal Pradesh Tenancy and Land Reforms Act, 1972.”

8. I have heard the learned counsel for the parties and gone through the records of the case.

9. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the judgment and decree passed by the learned first appellate Court, this Court finds no merit in the submissions of the learned counsel for the appellants/defendants that both the courts below have failed to appreciate the evidence in its right perspective, rather this court finds that both the courts below very meticulously have dealt with each and every aspect of the matter and as such, no scope is left for interference.

10. Mr. Poswal, learned counsel appearing for the appellants/defendants with a view to prove his aforesaid submissions made this Court to peruse the evidence led on record by the respective parties to state that it has come in the evidence that after a certain point of time, no rent was paid by the defendants. He further argued that since suit land was in the name of number of hissedarans and plaintiff not made all of them as party, suit filed by him ought to have been dismissed for non-joinder of necessary parties. Mr. Poswal, further contended that no evidence ever came to be led on record at the behest of the plaintiff to show that his predecessor-in-interest was owner of the property and same was given to the predecessor-in-interest of the defendants on rent and they were tenant on the same. He further submitted that there is overwhelming evidence suggestive of the fact that defendants were in possession of the suit property and electricity connection as well as water supply connection were in their names and house tax was also being paid by them.

11. Mr. Vijay Bhatia, learned counsel appearing for the respondent/plaintiff while supporting the impugned judgment and decree passed by the learned first Appellate Court argued that though in the case at hand, defendants were able to prove their possession over the suit property, but since they failed to lead evidence, be it oral or documentary with regard to ownership, suit of the plaintiff for possession rightly came to be decreed. Mr. Bhatia further submitted that since plaintiff was shown to be exclusive owner of khasra No. 495 in revenue record, there was no occasion for him to implead other hissedarans as party respondents. He further submitted that though suit land was entered under the tenancy of the plaintiff, but same stood abandoned due to non-cultivation. He further submitted that material available on record clearly reveals that suit land is coming in the ownership of the plaintiff from the time of his ancestors and forefathers over which there exists slateposh house and cowshed, which were constructed by his father and were given on lease to Shri Khazana Ram, predecessor-in-interest of the defendants on monthly rent of Rs.100/-. He submitted that though defendants after the death of their father are coming in possession of the leased property, but since they did not pay the rent of the premises after December, 2000, he terminated the lease deed vide notice dated 27.5.2005 and as such, there is no occasion, if any, for the defendants being predecessor-in-interest of Khajana Ram to remain in possession of the suit property. Lastly, Mr. Bhatia, submitted that this Court while exercising power under Section 100 CPC has very limited jurisdiction to re-appreciate the evidence, especially on account of concurrent findings recorded by both the courts below.

12. I have heard the learned counsel for the parties and perused the material available on record.

13. Since this Court is required to examine the entire evidence as well as pleadings adduced on record to explore the evidence to the aforesaid substantial questions of law framed by this Court and all the substantial questions of law are interlinked, same are being taken up together for consideration.

14. As per claim of the plaintiff, he is shown to be gairmarusi over the suit land to the extent of half share under its tikadharans Rajender Dev etc., as per Jamabandi for the year 2002-03. With a view to prove aforesaid claim, plaintiff examined three witnesses including himself as PW1. He deposed that house was constructed by his father 80-90 years ago and same was leased out to Sh. Khazana Ram, predecessor-in-interest of the defendants. He further deposed that after the death of Sh. Khazana Ram, defendants are in possession of the suit land. He also stated that defendants did not pay any rent for the last three years.

15. PW2 Sh. Kartar Chand while corroborating the aforesaid version of the plaintiff, categorically stated that plaintiff is owner in possession of the suit land and same was leased out by the plaintiff’s predecessor-in-interest to the predecessor-in-interest of the defendants. PW3 Sh. Ishwar Dass proved on record the site plan Ext.PW3/A.

16. Defendants with a view to rebut the claim of the plaintiff, examined six witnesses in his defence including himself. While deposing as DW1, he reiterated his version made in the written statement that defendants are owner in possession of the house and cowshed situate over the suit land. He deposed that house was constructed by Sh. Khazana Ram, predecessor-in-interest of the defendants. He also deposed that defendants are paying the house tax of the suit property and there is electricity meter in the name of Khajana Ram, predecessor-in-interest of the defendants.

17. DW2 Balam chand, Pardhan, Gram Panchayat, Kanjayan, DW-3 Pawan Kumar, Panchayat Secretary, Gram Panchayat, Kanjyan, DW-4 Manohar Lal, JE HPSEB, Sub-Division, Bhoranj and DW5 Karmi Devi, UP Pardhan, Gram Panchayat Kanjyan also proved on record house tax receipts and electricity bills of meter No. KJ-99.

18. DW6 also corroborated the version putforth by DW1. Careful perusal of Jamabandi Ex.P1 placed on record reveals that nature of the land is shamlaat tika and plaintiff is shown to be gairmarusi tenant over the same to the extent of half share under its tikadharans Rajender Dev etc. Over remaining half share, Bada Ram and Longu Ram are shown to be gairmarusi tenants. Though defendants have claimed themselves to be owner in possession of the suit land, but such fact has been specifically denied by the plaintiff. Plaintiff has though admitted possession of the defendants over the suit land, but apart from above, there is nothing on record to prove ownership of the defendants on the suit land. Though evidence led on record by the defendants proves that they are in possession of the cattle shed and house, but there is no document adduced on record on their behalf to prove their title. No doubt, electricity bill as well as house tax receipts are in the name of the defendants, but these documents nowhere prove ownership, if any, of the defendants over the suit land.

19. On the other hand, evidence led on record by the plaintiff especially revenue record clearly establishes ownership of the plaintiff over the suit land and as such, court below rightly held him entitled to relief of permanent prohibitory injunction, restraining the defendants from changing nature of the suit property and raising construction thereon. Mr. J.R. Poswal, learned counsel for the defendants- appellants, argued that tenancy in favour of the plaintiff had come to an end on account of non-cultivation of the land. However, there is no material worth credence available on record with regard to abandonment of occupancy right by the predecessor-in-interest of the plaintiff or the plaintiff himself. No doubt, evidence ocular as well as documentary placed on record by the plaintiff proves possession of the defendants over the suit property, but ownership of the defendants cannot be proved merely on the basis of oral evidence. Interestingly, legal notice dated 27.5.2005 issued by the plaintiff to the defendants terminating the lease and calling upon them to vacate the premises, establishes factum with regard to ownership of the plaintiff, to which defendants never responded, as a consequence of which, lease stands terminated by virtue of the notice dated 27.5.2005.

20. Having carefully perused entire evidence available on record, this Court finds no illegality and infirmity in the impugned judgments and decrees passed by the courts below and as such, no interference is called for. At this stage, Mr. Bhatia, learned counsel, contended that this court has very limited jurisdiction to re-appreciate the evidence in the instant proceedings, especially in view of the concurrent findings of facts and law recorded by the courts below. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by the Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264, [LQ/SC/2015/94] relevant para whereof reads as under:-

“16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.”

21. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned courts below cannot be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by the learned courts below, rather same are based upon correct appreciation of evidence and as such, same deserve to be upheld.

22. In the facts and circumstances discussed above, this Court is of the view that findings returned by the trial Court below, which were further upheld by the first appellate Court, do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appear to be based on correct appreciation of oral as well as documentary evidence. Substantial questions of law are answered accordingly. Hence, the appeal fails and dismissed accordingly. There shall be no order as to costs.