IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 155 of 2000. Decided on : 31.5.2010. Mast Ram …Appellant. Versus Vidya …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. Ashwani K. Sharma, Advocate. For the respondent : Mr. V.S.Chauhan, Advocate. Kuldip Singh , Judge (Oral) The defendant has come in second appeal against judgment, decree dated 11.6.1999 passed by the learned District Judge, Mandi in Civil Appeal No. 69 of 1995 affirming judgment, decree dated 20.6.1995 passed by the learned Sub Judge 1st Class, Joginder Nagar in Civil Suit No. 155-1 of 1992. 2. The facts, in brief, are that respondent had filed a suit for permanent prohibitory injunction against the appellant on the grounds that she is owner in possession of land comprised in Khasra No. 337, Khewat No. 6 min, Khatauni No. 10 min, measuring 1537-4 square yards situate at Joginder Nagar / 396. The further case of respondent is that appellant has no right, title or interest over the suit 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 land and he is threatening to interfere in peaceful possession of the respondent. 3. The appellant contested the suit by filing written statement. He asserted his own possession on the suit land for the last 40 years and he claimed adverse possession on the suit land. It has been alleged that appellant had been coming in possession of the suit land from the time of the husband of the respondent who was big landlord. The respondent is permanent resident of Mandi town and never visited Joginder Nagar. The respondent was having knowledge of hostile possession of appellant. The replication was filed in which the case projected by the respondent was reiterated and defence set up by the appellant was denied. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the defendant is causing interference over the suit land, as alleged? OPP 3. Whether the defendant has perfected his right over the suit land by way of adverse possession, as alleged? OPD. 4. Relief. The issues No.1 and 2 were answered in affirmative and issue No.3 in negative and the suit was decreed on 20.6.1995. The appellant filed appeal against judgment, decree dated 20.6.1995 which was dismissed by the learned District Judge on 11.6.1999 , hence second appeal by the appellant which has been admitted on the following substantial questions of law:- 3 1. Whether the procedure adopted by the learned trial Judge in recording the entire evidence of the defendant without recording the evidence of the plaintiff on the issues for which burden of proof was on the plaintiff is in consonance with the prescribed procedure and whether such procedure adopted has resulted into mis-trial of the suit on account of prejudice caused to the defendant ? 2. Whether in the absence of the option exercised by the plaintiff reserving right to lead evidence on all the issues, the plaintiff is entitled to lead evidence in rebuttal after completion of the evidence of the defendant? 3. Whether on the basis of the evidence adduced on record, the adverse possession of the defendant is established and proved on record? 5. I have heard Mr. Ashwani K. Sharma, Advocate, learned counsel for the appellant and Mr. V.S.Chauhan, Advocate, learned counsel for the respondent and I have also gone through the record. It has been submitted on behalf of the appellant that the procedure adopted by the trial Court in recording the evidence has caused serious prejudice to the appellant. The respondent practically had led no evidence in affirmative and whatever evidence was led by the respondent that was led in rebuttal to the evidence of appellant. He has submitted that the respondent has proved his adverse possession on the suit land. The document Ex.P-3 is a suspicious document, it does not support the case of the respondent. He has submitted that the two courts below have not appreciated the material on record and have erred in rejecting the evidence of the appellant. The learned counsel for the respondent has submitted that the burden on certain issues was on respondent and similarly burden of issue No.3 was on appellant. He has submitted that the appellant had 4 projected a positive case of the adverse possession on the suit land, therefore, in affirmative, the respondent was not required to lead any evidence regarding interference. In affirmative, the respondent had led evidence by tendering jamabandi for the year 1988-89 Ex.P-1 and rest of the evidence she led in rebuttal to the issues burden of which was on the appellant. He has submitted that no fault can be found with the finding of fact recorded by the two courts below. The appellant has miserably failed to prove possession what to talk of adverse possession on the suit land. 6. The substantial question of law No.3 is taken up first for consideration. The learned counsel for the respondent has drawn my attention to paragraph 9 of the impugned judgment wherein the learned counsel for the appellant specifically represented before the learned lower appellate Court and had not disputed the finding recorded by the learned trial Court regarding adverse possession. The appellant through his counsel had virtually given up the plea of adverse possession by making such statement before the learned lower appellate Court. In these circumstances, the plea of adverse possession is not now available to the appellant in second appeal. DW-1 Mast Ram in his statement has stated that his father used to give share of crop to the owners to the extent of 1/4th which used to be collected by one Kharku Kuthiala. He has further stated that his father has died in the year 1984.. The suit was filed on 19.10.1992. The statement of appellant makes it clear that during the life time of his father he (father) used to cultivate the land and he used to pay share of the crop to the owner. In these circumstances, it cannot be said that appellant is claiming adverse possession on the suit land 5 since the time of his father. The father of appellant died in the year 1984 and the suit was filed in 1992, therefore, there is no question of appellant being in adverse possession of the suit land when the suit was filed. In the facts which have come on record Ex.P-3 has nothing to do with the claim and counter claim of the parties regarding adverse possession. The substantial question of law No.3 is decided against the appellant. 7. The substantial questions of law No.1 and 2 are inter- connected, therefore, both of them are taken up for consideration collectively. There were in all four issues including issue No.4 of relief. Thus practically there were three issues the onus of two issues was on the plaintiff and onus of issue No.3 was on defendant. The respondent had tendered in evidence jamabandi Ex.P-1 in support of her case. In jamabandi for the year 1988-89 Ex.P-1 husband of respondent is recorded owner in possession of the suit land. The appellant had taken the plea of adverse possession on the suit land and therefore, appellant was claiming possession on the suit land. The respondent closed her evidence in affirmative after tendering jamabandi Ex.P-1 in evidence. Rule 3 of Order 18 CPC gives an option to the party starting with the case to lead his entire case in one go if the issues are on the both parties or to lead the evidence first in affirmative and then in rebuttal to the issues the onus of which is on the other side. The procedure adopted by the trial Court in this case cannot be said in violation of CPC in view of Rule 3 Order 18 CPC. In view of the burden on various issues, the respondent had right to lead evidence twice and same procedure has been adopted by the trial Court. In these circumstances, it cannot be 6 said that by giving chance twice to the respondent to lead evidence the trial Court has committed any error of procedure. In these circumstances, there is no merit in the submission of the learned counsel for the appellant that trial court has adopted wrong procedure in recording the evidence and that error has not been rectified even by the learned lower appellate court. The two courts below have recorded a finding of fact, the substantial questions of law No. 1 and 2 are decided against the appellant. 8. No other point was urged. 9. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 31, 2010. (GR)