IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.300 of 2006 Reserved on: 22.08.2023 Date of Decision:11.09.2023 Mohinder Singh H ....Appellant Versus Gurbax Singh (since deceased) through his LRs o ...Respondents.

Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 Yes For the Appellant: Mr. Ajay Sharma, Sr. Advocate with Mr. Ajay Thakur, Advocate.

For the Respondents: Mr. Aman Sood, Advocate.

Rakes h Kainthla, Judge The present appeal is directed against the judgment & decree passed by the learned District Judge, Una vide which the appeal filed by the respondents (legal representatives of the original defendant before the learned Trial Court) was allowed and the judgment and decree passed by learned Civil Judge (Junior Division), Court No. 1, Amb, District Una, H.P. were set aside.

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking the possession by removal of supper structure/Malwa over the land comprised in Khewat No. 99 min, Khatouni No. 222 min, Khasra No. 2282/1 measuring 0-00-92 Hectare situated in Up-Mohal Kaloh, Mouja Kaloh, Tehsil Amb, District Una, H.P as entered in the copy of Jamabandi for the year 1995-1996. (hereinafter referred to as the suit land). It was asserted that the plaintiff was a co-sharer in possession of the suit land. The defendant took forcible possession of the suit land in April 2000 without any right, title or interest. The plaintiff requested the defendant to deliver the possession, but in vain. Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability & cause of action, the plaintiff having not come to the Court with clean hands and the suit being bad for non-joinder of necessary parties. The contents of the plaint were denied on merits. It was asserted that the suit land is owned and possessed by the plaintiff along with other co-sharers, but the same is in exclusive hissedari possession of the father of the plaintiff-Jaspal Singh. The plaintiff, his brother and mother are in exclusive hissedari possession of the suit land after the death of Jaspal Singh. The suit land adjoins the land of the defendant. The defendant raised his residential Abadi over Khasra No. 2282 in the presence of the plaintiff, his father and other co- sharers. He is in peaceful possession of the Abadi constructed over part of the suit land bearing Khasra No. 2282. The old Khasra Number of adjoining land of the defendants were 3413, 3414 and 3416. The plaintiff concealed these facts from the Court. Hence, it was prayed that the suit be dismissed.

4. No replication was filed.

5. The following issues were framed by the learned Trial Court on 06.01.2003:-

1. Whether the suit land was owned and possessed by the plaintiff along with other co-

sharers as alleged? OPP

2. Whether defendant has dispossessed plaintiff and other co-sharers from the suit land in an illegal manner in the month of April, 2000?

OPP

3. Whether plaintiff is entitled for decree of possession? OPP

4. Whether suit is not maintainable in present form? OPD

5. Whether plaintif f has no cause of action to file suit? OPD t

6. Whetuher suit is bad for non-joinder of necessary parties? OPD

7. Relief.

6. The parties were called upon to produce the hevidence and the plaintiff examined Satya Devi- his Power of Attorney (PW-1) and Roshan Lal (PW-2). The defendant examined himself (DW-1).

7. Learned Trial Court held that the plaintiff is the co-owner of the suit land. The version of the plaintiff was made probable by the report of demarcation and the oral evidence. The defendant had no right to retain the possession, hence, the learned Trial Court answered issues no. 1 to 3 in the affirmative, issues no. 4 to 6 in the negative and decreed the suit.

8. Being agg