IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 426 of 2006 Date of decision: 26.06.2008 Biasan Devi ... Appellant Versus Smt. Soma Devi … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. B.K. Sood vice Mr. K.D. Sood, Advocate. For the respondent: Mr. Ashok Sharma, Advocate. V.K. Ahuja, J. (Oral): This is a Regular Second Appeal filed by the appellant against the judgment and decree of the Court of learned Additional District Judge(Fast Track Court), Hamirpur, dated 22.6.2006, vide which the appeal filed by the appellant against the judgment and decree of the Court of learned Sub Judge Ist Class, Hamirpur, dated 10.1.2003, for possession was affirmed. Briefly stated the facts of the case are that the respondent as plaintiff filed a suit for possession as against the appellant who was impleaded as a defendant alleging that the defendant has encroached upon the suit land measuring 3.92 Sq. Meters comprised in Khasra No. 1831/1. It was alleged that while reconstructing, the shop the defendant encroached upon the suit land by raising construction despite protest by the husband of the plaintiff who is now dead and has been succeeded by the plaintiff. The 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 plaintiff further alleged that her husband during life time requested the defendant to hand over the vacant possession by removing the structure thereon, but the defendant failed to deliver the possession. Hence, the suit for vacant possession of the suit land by demolition of the structure raised by the defendant. The defendant took up various preliminary objections qua limitation, estoppel, valuation and non-joiner of necessary parties. On merits, the defendant pleaded that she is in possession of the suit land by way of construction of shop since 1960-61 and this construction was open, hostile to the knowledge of the plaintiff and as such, the defendant has become owner by way of adverse possession. The learned trial Court framed various issues including the issue as to whether the defendant has become owner of the suit land by way of adverse possession. On conclusion of the trial, the learned trial Court held that the defendant has failed to prove her adverse possession over the suit land and accordingly, the relief of possession was granted in favour of the respondent. The findings were affirmed by the learned first Appellate Court. I have heard the learned counsel for the parties and have gone through the record. The first submission raised by the learned counsel for the appellant during the course of argument was that the defendant has specifically pleaded that the suit was not within time but no issue was framed by the learned trial Court or by the learned first Appellate Court and as such, the appeal is liable to be accepted and the case deserves to be remanded to the learned trial Court for framing of issue in regard to limitation and give its finding fresh. A perusal of the written statement filed by the defendant shows that she had taken preliminary objection wherein she alleged that 3 the suit was time barred and no other reason is given as to how the suit was time barred. A perusal of the record shows that when the issues were framed on 20.9.1993, no issue in regard to the plea as to whether the suit was time barred was framed by the learned trial Court. It was mentioned by the learned trial Court that no other issue arises or claimed. A perusal of the record shows that no application was filed by the defendant under Order 14 Rule 5 C.P.C. for framing of additional issue in regard to plea of limitation though the suit remained pending before the learned trial Court for about seven years and was decided on 10.1.2000. Thereafter, when the appeal was preferred by the appellant, she took up plea in the ground of appeal that no proper issues have been framed by the Court and the findings are liable to be reversed being perverse and unreasonable. It was not specifically alleged that no issue in regard to limitation as claimed by the defendant in her written statement was framed by the Court and as such, the said issue be framed and the case be remanded back. Once the defendant did not object at any stage and never prayed for framing of additional issue in regard to the plea of limitation, though the case remained pending for seven years before the learned trial Court, it shall be deemed that the said issue was not pressed for and as such, no case is made out for framing of said issue or remanding the case on this ground. Coming to the submissions made by the learned counsel for the appellant on the merits of the case, it was submitted that the copy of Missal Hakiyat 1983-84 Ext. D-4 was not considered by the learned trial Court as well as by the learned first Appellate Court. It was also submitted that there are other documents which prove the adverse possession of the defendants, namely, Ext. DW1/E site plan/sanction order and the receipts issued by the Municipal Committee. Coming to the first plea in regard to Ext. D-4, copy of Missal Hakiyat 1983-84, which is same as Ext. P-4. A perusal of the 4 judgment of the learned trial Court shows that this document was duly considered by the learned trial Court at Page No.7 of its judgment though referred as Ext. D-5. A perusal of the judgment of the learned first Appellate Court shows that it had discussed the same document in para 18, though the same was mentioned as Ext. P-4, but it was similar to Ext. D-4, which were both copies of Missal Hakiyat 1983-84. Thus, it is clear that this document was duly considered by the learned trial Court who came to the conclusion that for the first time, the defendant was recorded in possession by way of construction of shop in this Khasra No. which proved her possession only from this year and not from the year 1960-61 as pleaded by the defendant in her written statement. Coming to the other document Ext. DW1/E, the same has duly been discussed by the learned trial Court at Page No. 7 of the judgment and these documents have also been discussed by the learned trial Court apart from the receipts Ext. D-1 to D-11 in Para-9 of the judgment. Thus, from the above discussion, it is clear that the appellant has failed to show as to which of the documentary evidence or oral evidence was not considered by the learned trial Court or by the learned first Appellate Court, which calls for re-appraisal of the evidence by this Court sitting in second appeal. The substantial questions of law as framed at the time of filing of the appeal is at Page No. 7 of the file, in which, the substantial question of law has been framed mainly whether the findings of the Courts below are perverse based on misreading and misconstruction of oral and documentary evidence and that the damages was an adequate relief. However, no such substantial question of law arises as per the arguments raised during the course of arguments. Coming to another plea raised by the learned 5 counsel for the appellant that the defendant was entitled to compensation in the alternative, he has placed reliance upon the following decisions:- The decision in Krothapalli Satyanarayana Vs. Koganti Ramaiah and others, AIR 1983 Supreme Court 452, shows that suit for declaration was filed by the plaintiff. It was observed by the Apex Court that there was failure of plaintiff to approach the Court for 9 years and the prayer was made after 4 years for removal. The Court declined to direct its removal as the plaintiff was held guilty of acquiescence. The decision in R.S. Muthuswami Gounder Vs. A. Annamalai and others, AIR 1981 Madras 220, shows that it was observed as under: “Suit for vacant possession based on title and for mandatory injunction directing demolition of construction made by defendant on suit land. Held, plaintiff could have come to know in time about defendant putting up construction on suit land had he cared to find out. Principle of acquiescence applied and plaintiff was entitled only to decree for compensation.” Both the above decisions are not attracted to the present facts because they are based upon the facts involved in those cases where the plea of acquiescence was specifically taken by the defendant but here it was pleaded that the plaintiff is estopped by her act and conduct from filing the suit, nor it was proved that the plaintiff or her husband acquiescence to the construction when it was raised by the defendant. No plea was raised by the defendant in the alternative that the plaintiff was only entitled to compensation, if so, to what extent and no such findings were given by the Courts below on this point. The third decision relied upon by the learned counsel for the appellant in Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 6 Punjab 528, is mainly in regard to rights and liability of the co-owner, the question of ouster and the question of adverse possession by a co-owner. A plea was also raised by the learned counsel for the appellant during the course of arguments that Article 135 of the Limitation Act applies since the relief claimed was for mandatory injunction and, therefore, the suit should have been filed within three years. A perusal of the plaint filed by the plaintiff shows that she has filed suit for possession by demolition of super structure raised by the defendant and no relief of mandatory injunction by way of demolition of super structure was claimed by the plaintiff and as such, this Article is not attracted to the present fact and as such, the plea is repelled being devoid of any merit. In view of the above discussion, there is no merit in the appeal, which is dismissed accordingly. The parties are left to bear their own costs. CMP No. 807 of 2006: In view of the dismissal of the main appeal, this application has become infructuous and the interim order stands vacated. ( V.K. Ahuja ), June 26, 2008 Judge (BSS)