IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.58 of 1997 Decided on: 6.4.2010 Sia Ram and others …Appellants Versus Beli Ram and another …Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellants: Mr. S.S. Mittal, Senior Advocate with Mr. Dev Raj Dev, Advocate. For the Respondents: Mr. Karan Singh. Kanwar, Advocate, for respondent Beli Ram. Mr. Aman Sood, Advocate for respondent Ram Chand. Surjit Singh, Judge (oral) This Regular Second Appeal by the plaintiffs is directed against the judgment, dated 4th July, 1996, of learned Additional District Judge, whereby accepting the appeal of the appellants-plaintiffs, judgment and decree, dated 20th August, 1990, of the trial Court, i.e. the Court of Sub Judge, Paonta Sahib, has been reversed and the suit of the appellants-plaintiffs has been dismissed. 2. Facts that need to be noticed for the disposal of appeal are as follows. Plaintiffs and their brother Amar Singh, (now deceased and represented by his son Ram Chand proforma respondent herein) owned the suit land bearing Khasra Nos. 549, 550 and 628/554, situate in Mouza Dewra, Whether reporters of the local papers may be allowed to see the judgment? …2… jointly. However, Amar Singh, the third brother of the plaintiffs, was in exclusive possession of the said land. He allegedly handed over the possession of the land to respondent-defendant Beli Ram, in the year 1972, and on being asked by the plaintiffs (his two brothers), as to how Beli Ram came into possession of the suit land, he told them that he had created mortgage for a sum of Rs.400/- in favour of Beli Ram. Plaintiffs then filed a suit for redemption of mortgage. Beli Ram contested that suit and took the plea that he had purchased the land for Rs.2000/- from Amar Singh. Trial Court concluded that plaintiffs’ plea of mortgage was not proved. Consequently, the suit was dismissed. However, it was observed that plaintiffs could file a suit for possession. Appeal was filed against that decree of trial Court, which was dismissed. 3. After the dismissal of the appeal, appellants- plaintiffs filed the suit, out of which this appeal has arisen, for possession of the suit property, claiming that they were joint owners of the suit land with Amar Singh. Besides respondent Beli Ram, Amar Singh was also impleaded as a defendant. Only Beli Ram contested the suit. He took the plea of adverse possession, claiming that he had been in possession of the suit land for the last 16-17 years, when the possession was delivered to him, pursuant to the alleged sale for a consideration of Rs.2000/-. 4. Trial Court held that the plaintiffs were owners and entitled to possession of the suit land. Defendant’s plea that …3… suit land had been sold to him by Amar Singh did not find favour with the trial Court. Consequently, the suit was decreed and a decree for possession of the suit property was passed in favour of the plaintiffs-appellants. 5. Defendant Beli Ram filed appeal in the Court of District Judge. That appeal has been accepted by the District Judge, vide impugned judgment and decree dated 4.7.1996. So, the appellants-plaintiffs have come in appeal to this court. 6. Appeal was admitted on the following substantial questions of law:- “1. Whether a person can claim adverse possession of land from the day he is put in possession of the same in consequence of an agreement of sale where only a part of the consideration is paid in the first instance? 2. If the answer to first question is in the negative, from which day the adverse possession can be said to have commenced in the facts and circumstance of the present case? 3. Whether the respondent is entitled to the protection of Section 53 of the Transfer of Property Act in view of the fact that appellants 1 and 2 were never a party to the alleged agreement of sale although they were owners of the suit land alongwith Amar Singh who is alleged to have entered into the oral agreement of sale and received only a part of the sale consideration? 7. I have heard the learned counsel for the parties and gone through the record. …4… 8. In the present case, defendant’s plea is that he had paid the entire sale consideration of Rs.2000/- to Amar Singh, before he was put in possession of the suit land. Respondent Beli Ram appeared as DW-3 and testified that he had paid the entire sale consideration of Rs.2000/-. Amar Singh did not enter the witness box to controvert the testimony of respondent Beli Ram. Therefore, it cannot be said that this is a case of payment of only a part of the consideration. Hence, substantial question of law No.1 does not call for answering. 9. Coming to the next substantial question of law, defendant Beli Ram’s plea is that he had paid the entire sale consideration in the year 1970 and the possession was delivered to him in that very year. There was no written agreement between the parties and, therefore, plea under Section 53 of the Transfer of Property Act, is not available to respondent-defendant Beli Ram. However, he being in possession of the suit property, pursuant to oral sale, which is not permissible under the law, he can claim that his possession is adverse from the very day of delivery of possession to him, pursuant to the illegal sale transaction. So, it is held that respondent Beli Ram has been in adverse possession of the suit land since 1970. 10. However, this finding cannot bind the appellants- plaintiffs as they were neither party to the alleged transaction of sale nor did they deliver the possession of the suit land to the respondent-defendant Beli Ram and also because …5… respondent-defendant Beli Ram, has stepped into the shoes of Amar Singh, who was only a co-sharer, with exclusive possession. He has not taken the plea of ouster of the plaintiffs-appellants. 11. So far as substantial question of law No.3 is concerned, in view of what has been stated, while dealing with substantial question of law No.2, it is held that finding of adverse possession given in favour of respondent-defendant Beli Ram by the District Judge, does not affect the plaintiffs- appellants and they being joint owners with Amar Singh, are entitled to a decree for joint possession of the suit property. 12. In view of the above findings, appeal is partly accepted and a decree for joint possession of the suit property to the extent of 2/3rd share is passed in favour of the plaintiffs and against respondent-defendant Beli Ram, in view of the entry in Jamabandi for the year 1984-85, copy Ext.D5, in which Amar Singh and the plaintiffs are recorded as joint owners in equal shares of the suit property. Decree sheet be drawn accordingly. Appeal stands disposed of. April 6, 2010(ss) (Surjit Singh), J