IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 461 of 1998. Reserved on: 31.3.2009. Decided on: 2. 4.2009. __________________________________________________ Shri Nikka … Appellant. Versus Smt. Hardei and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. For the Respondents : Ms. Devyani Sharma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge (Oral). This regular second appeal has been directed against the judgment and decree dated 13.8.1998 passed by the learned District Judge, Bilaspur in Civil Appeal No. 4/91. Brief facts necessary for adjudication of this regular second appeal are that the plaintiff-respondent (hereinafter referred to as the plaintiff for convenience sake) filed a suit for declaration and injunction that she was owner in possession of the land comprised in Khasra Nos. 104, 223, 237, 242/2, measuring 26-16 Bighas, situated at village Kahli, Pargana Rattanpur, Tehsil Sadar, District Bilaspur. She further alleged that the change in the revenue record whereby the defendant-appellant (hereinafter referred to as the defendant for convenience sake) has been 1 Whether reporters of the local papers may be allowed to see the judgment? 2 recorded as non-occupancy tenant on payment of Rs. 20/- as annual rent was wrong, void and illegal. She has challenged the revenue entries incorporated in favour of the defendant and she also prayed for restraining the defendant from interfering for peaceful possession. The suit was contested by the defendant by filing written statement. The plaintiff filed the replication. The learned Sub Judge decreed the suit on 30.11.1990. The defendant preferred an appeal before the learned District Judge, Bilaspur. He dismissed the appeal on 13.8.1998. This regular second appeal was admitted on the following substantial questions of law: 1. Whether in the facts and circumstances of the case the court below was justified in assuming that the presumption attached to the revenue records and the orders of the Asstt. Collector II Grade Ex. P-3 stood rebutted? 2. Whether in the facts and circumstances of the case, the plea of adverse possession was properly pleaded and proved and the defendant/appellant was entitled to succeed on the said plea? 3. Whether in the facts and circumstances of the case the defendant has established himself to be the tenant in the property and it could be assumed that the possession of the plaintiff was only permissive and not adverse as found by the court below? Mr. Rajnish K. Lal has strenuously argued that the judgments and decrees passed by both the learned Courts below are not sustainable. He has strongly relied upon order Ext. DA 3 passed on 27.2.1979 by the Assistant Collector II Grade, whereby defendant was recorded as non-occupancy tenant under the plaintiff on payment of rent at the rate of Rs. 20/- per annum. He then contended that his client had proved his possession for more than 40 years on the suit land. Ms. Devyani Sharma has supported the judgments and decrees passed by both the learned Courts below. I have heard the learned counsel for the parties and have perused the record carefully. All the substantial questions of law are being taken up together for adjudication to avoid repetition and for convenience. The plaintiff had appeared as PW (R)-1. She has categorically deposed that the defendant was never inducted as tenant by her. She has further deposed that she had not received rent of Rs. 20/- per annum ever from the defendant. PW (R)-2 Shri Roshan Lal has also deposed that defendant was never inducted as tenant by him or by the plaintiff. It was contended by the defendant that he had been continuing as non-occupancy tenant since the last 20 years on payment of rent of Rs. 20/- per annum before the order was passed by the Assistant Collector II Grade on 27.2.1979. There is no entry in favour of defendant as non-occupancy tenant from 1959 to 1979. In the Misal Hakiat Ishtemal, possession of the plaintiff has been shown. The defendant has not produced on record any receipt obtained from the owner towards the rent. The order dated 27.2.1979 (Ext. DA) has been passed by the Assistant Collector II Grade. The necessary orders under Section 104 of the H.P. Tenancy and Land Reforms Act 4 conferring the proprietary rights can only be passed by the Assistant Collector Ist Grade. The order passed by the Assistant Collector II Grade on 27.2.1979 was without jurisdiction and is a nullity. In fact, the defendant has admitted that the revenue entries regarding tenancy were not coming in his favour in the revenue record. The defendant has also claimed ownership by way of adverse possession. He has stated that he was in possession of the suit land for the last 40 years and his possession was open and hostile. The defendant had admitted that he had been inducted as tenant on payment of Rs. 20/- by the plaintiff. Since the defendant had admitted the ownership of the plaintiff and in absence of any hostile animus, plea of adverse possession cannot be accepted. He has also not given the date from which his possession has become adverse. He has only deposed that he was in possession of the land for the last over 20 years. In view of the observations made hereinabove, it is evident that the defendant has failed to prove his tenancy as well as adverse possession over the suit land. Since the order passed by the Assistant Collector II Grade on 27.2.1979 is a nullity and the revenue entries based on this order are also nullity. Both the learned Courts below have correctly appreciated the documentary and ocular evidence. There is no substantial question of law involved in this regular second appeal. Accordingly, the regular second appeal is dismissed. No costs. (Rajiv Sharma), J. April 2 ,2009. (cr)