HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 160 of 1999 Reserved on: 23.12.2010 Decided on: 6.1.2011 Purshotam Lal and ors. ……Appellants. Versus Nand Lal and others ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the appellants: Mr. Shrawan Dogra, Advocate For the respondents: Mr. K. D. Sood, Advocate for respondents No. 2, 3, 4(a) to 4(e) and 6 to 12. V.K. Ahuja, J. This is a regular second appeal filed by the appellants/plaintiffs (hereinafter referred to as the plaintiffs) under Section 100 of the Code of Civil Procedure against the judgment and decree, dated 1.2.1999 of the court of learned District Judge, Bilaspur, H.P., vide which he has allowed the appeal of the respondents/defendants (hereinafter referred to as the defendants) and the judgment and decree, dated 29.4.1989 passed by the learned Sub Judge, Ghumarwin decreeing the suit of the plaintiffs was set aside. - 2 - 2. Briefly stated, the facts of the case are that the plaintiffs filed a suit for declaration and permanent injunction against the defendants. It was alleged by the plaintiffs that they and proforma defendants No. 9 to 19 are owners in possession of the land comprised in Khasra No. 77 measuring 1- 01 Bigha, as detailed in the plaint. It was alleged that defendants No. 1 to 8 are owners in possession of the land comprised in Khasra No. 76 measuring 0-16 Bigha, which is just adjoining to Khasra No. 77. It was alleged that the suit land was wrongly shown as part of Khasra No. 76 during consolidation operation and the plaintiffs along with proforma defendants were put in possession over Khasra No.77 measuring 1-01 Bigha by the consolidation authorities in the year 1962-63. It was further alleged that on 21.6.1985, the defendants threatened the plaintiffs to dispossess them forcibly and they have not been allowed to do so, as on some portion of the land, a cow shed of the plaintiffs was standing and the remaining portion of the land in question is used by the plaintiffs for keeping dry grass etc. It was alleged that Khasra No. 76/1 is a part of Khasra No. 77, of which the plaintiffs are owners in possession and the plaintiffs learnt about mischief of the defendants when they got Tatima from Halka Patwari. It was alleged that there was a mistake of revenue agency at the time of preparation of village map and the plaintiffs may be declared as owners in possession of the suit land by way of adverse possession since their possession over the land in dispute is peaceful, open and hostile since 1962-63. Hence, the plaintiffs are entitled to the relief of declaration and permanent injunction in their favour. - 3 - 3. Defendants No. 1 to 8 took the preliminary objections in regard to maintainability, non-joinder of necessary parties etc. On merits, they pleaded that defendants No. 1 to 8 are owners in possession of the land in suit comprised in Khasra No. 76, measuring 16 Biswas. It was alleged that the land of defendants is adjoining to Khasra No. 77. It was denied that the land comprised in Khasra No. 76/1 has wrongly been shown in Khasra No. 76 by mistake. They denied that the plaintiffs were ever put in possession of the land comprised in Khasra No. 76/1 by the consolidation authorities. It was further pleaded that Smt. Jiuni, previous owner, was put in possession during consolidation and land comprised in Khasra No. 76/1 measuring 16 Biswas was sold to Mahant Ram and defendants No. 1 to 8 purchased this land from Mahant Ram vide sale deed, dated 18.11.1970 for a sale consideration of Rs. 23,000/- and since then, the defendants are in possession of the suit land. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether the plaintiffs and proforma defendants are owners in possession over the suit land as alleged? OPP. 1A. Whether the plaintiffs have become owner in possession over the suit land by virtue of adverse possession in alternative as alleged? OPP. 2. Whether the revenue entries qua suit land are wrong and illegal as alleged? OPP. 3. Whether the defendants are interfering over the suit land as alleged ? OPP. 4. Whether the suit is not maintainable as alleged. OPD. - 4 - 5. Whether the suit is not properly valued as alleged ? OPD. 6. Whether the suit is bad for non-joinder of necessary parties as alleged ? OPD. 7. Whether the suit is time barred as alleged ? OPD. 8. Whether the plaintiffs are estopped to file the suit as alleged ? OPD. 9. Whether this court has no jurisdiction as alleged ? OPD 10. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment and decree, decreed the suit of the plaintiffs by holding that they have become owners in possession of the suit land by virtue of adverse possession and the revenue entries in favour of the defendants are wrong and illegal. On appeal, those findings were reversed by the learned First Appellate Court allowing the appeal and setting aside the judgment and decree passed by the trial court. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. A perusal of the records shows that the appeal was admitted on the following substantial question of law:- “Whether the appellants-plaintiffs could establish their right of adverse possession over the suit property in the absence of documentary evidence based upon oral evidence if so whether the Courts below are contrary and perverse based upon the evidence led by the parties?” - 5 - 8. The submissions made by learned counsel for the plaintiffs were that the suit was rightly decreed by the learned trial court by holding that the plaintiffs have been proved to be in possession of the suit land by way of adverse possession. However, it was submitted that the learned First Appellate Court did not refer to the testimony of the plaintiffs’ witnesses in detail, but by making an oblique reference to the evidence of the plaintiffs, it wrongly concluded that the adverse possession set up by the plaintiffs was not proved, which findings are contrary to the record and are, therefore, liable to be reversed. It was also submitted that there is statement of PW4, Patwari, Milkhi Ram, who had submitted that there was a cow-shed on Khasra No. 76/1 and the learned First Appellate Court had not appreciated the evidence in its right perspective. It was also submitted that inconsistent pleas can be taken by the plaintiffs that they are owners in possession of the suit land and in the alternative, they are owners in possession of the suit land by way of adverse possession and these inconsistent pleas can be taken and these were rightly taken by the plaintiffs in the plaint. On the other hand, the learned counsel for the defendants had supported the impugned judgment passed by the learned First Appellate Court and submitted that the learned First Appellate Court had come to a right conclusion by holding that the plaintiffs have failed to prove their adverse possession and, as such, those findings do not call for an interference by this Court. 9. A perusal of the record shows that the learned trial court had considered the evidence in regard to the adverse possession under Issue No.1A, which was framed in this regard. A perusal of the findings given - 6 - under issues No. 1A and other issues show that the learned trial court had only referred to the fact that there was statement of PW1 Gian Chand, one of the plaintiffs, which has been further corroborated by the statement of PW2 Bansi Ram, who deposed that there was a cow-shed of the plaintiffs over the suit land, which was demolished and defendants used to cultivate the suit land for the plaintiffs for the last about 20-25 years. Only reference was made to the statement of the plaintiff as to since when they are in adverse possession, but nothing as to when their adverse possession started to the knowledge of true owners. Only reference was made to the statement without reproducing as to what the plaintiff had stated in this regard. A perusal of further discussion shows that the learned trial court observed that PW3, Arjun Singh has also deposed that there was a cow-shed of the plaintiffs over the suit land, which was demolished by the defendants and the plaintiffs were in possession of the suit land for the last about 39 years. The plaintiffs in the plaint had claimed themselves to be owners in possession of the suit land and in the alternative, they had claimed that they are in adverse possession of the suit land since 1962-63, but the facts as to in what manner and on which particular date they came in possession of the suit land and their possession became adverse were not alleged specifically in the plaint. A perusal of the statement of PW1 Gian Chand, one of the plaintiffs, shows that he did not specify that he was in adverse possession of the suit land and in what manner, though he only stated about his long possession over the suit land for the last about 30-35 years. He stated firstly that the land in dispute was common and thereafter, they took demarcation and learnt about - 7 - land, which was in their possession. The statement of the plaintiff himself was not sufficient to prove the case for adverse possession set up by him and there was no revenue entry in favour of the plaintiffs in regard to the suit land. PW2, Bansi Ram, has stated that there was a cow-shed, which had been demolished by the defendants, which was raised about 6-7 years earlier. He do not state since when the cow-shed was there and when it was demolished. He further stated that prior to construction of cow-shed he was cultivating the land for the plaintiffs for the last about 20-25 years and then stated that the cow-shed was demolished four years ago. In case, cow-shed had been raised by the plaintiffs, which would have been a notice to the defendants that the possession of the plaintiffs have become adverse to the rights of the defendants, which is not so in the present case. Since the cow- shed is already existed, which was allegedly demolished by the defendants four years prior to the filing of the suit, the statement of PW4 to the effect that their exists a cow-shed cannot be stated to be material, since Patwari is not expected to have a personal knowledge about possession of the parties and there is no documentary evidence to substantiate his statement. 10. On the other hand, the evidence had been led by the defendants, which has been discussed by the learned trial court as well as by the learned first Appellate Court that the defendants purchased the suit land vide sale deed, Ext. DW2/A for a total consideration of Rs.23,000/-. The learned First Appellate Court had also referred to documentary evidence in this regard that Khasra No. 76, measuring 16 Biswas is owned and possessed by the defendants, which was purchased by them from one Mahant Ram, DW2. - 8 - The learned First Appellate Court, therefore, had rightly concluded that it is not clear as to how the plaintiffs are claiming the ownership and possession over Khasra No. 76/1 measuring 5 Biswas since their claim was adverse. According to the plaintiffs, the land was allotted to them during consolidation and their possession was open and hostile, which matured into adverse title as against the defendants. The learned first Appellate Court had rightly observed in para No. 13 of the judgment that the plaintiffs had failed to prove the starting point of adverse possession and have also failed to prove that it was effective, adequate, in continuity and in publicity, which ingredients were found missing in the case in hand. 11. I have referred to the evidence led by the parties and learned First Appellate Court had also referred to the evidence, but it cannot be said that it had not referred to the evidence in detail and had reversed the findings without there being any material. On the other hand, findings of the learned Sub Judge itself show by making a brief reference to the evidence it had wrongly concluded that the case of the adverse possession set up by the plaintiffs stood proved, which findings were rightly reversed by the learned First Appellate Court. 12 In view of above discussions, I accordingly hold that there is no merit in the appeal filed by the plaintiffs, which is dismissed accordingly. The parties are left to bear their own costs. January 6, 2011. (V.K. Ahuja), (pankaj) Judge.