IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.288 of 1999 Judgment reserved on : 29.10.2009 Date of decision : 15.12.2009 ____________________________________________________ Jai Singh and others …Appellants. Versus Shiv Dei alias Shivi …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellants : Mrs. Ranjana Parmar, Advocate. For the Respondent : Mr. Lovneesh Kanwar, Advocate Kuldip Singh, Judge The appellants were defendants and are aggrieved by judgment, decree dated 16.12.1998 passed by learned Addl. District Judge, Mandi in Civil Appeal No.5 of 1997, reversing judgment, decree dated 9.12.1996 passed by learned Sub Judge Ist Class, Sarkaghat , Distt Mandi in Civil Suit No.155/1995. 2. The facts in brief are that respondent Shiv Dei had filed a suit for permanent prohibitory injunction against appellants and one Shankru that the suit land measuring 0-3-55 Hects in village Hawani/555 Illaqua Hatli, Tehsil Sarkaghat, is owned and possessed by her and other co-sharers. The appellants have no right, title and interest over the suit land. The appellants had started digging the suit _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? 2 land with an intention to raise forcible construction over it, which acts of the appellants are illegal. 3. The suit was contested by appellants wherein preliminary objections of maintainability, cause of action and non-joinder of necessary parties were taken. On merits, the appellants took the stand that the respondent is neither owner nor in possession of the suit land, the entries showing respondent as owner in possession of the suit land are wrong. The appellants are in possession of the suit land since May, 1950 when they had constructed the cowshed and courtyard on the suit land. The possession of the appellants is continuous, open, hostile and to the knowledge of the respondent. Therefore, appellants have become owners in possession of the suit land by virtue of adverse possession. The land was earlier owned by State of Himachal Pradesh prior to the year 1988 when it was sanctioned to respondent and other co-sharers as nautor. The respondent and other co-shares were not put in possession by the State. 4. In replication the respondent had controverted the stand taken by the appellants. The following issues were framed in the suit:- 1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for?OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no cause of action ?OPD 3 4. Whether the suit is bad for non-joinder of necessary party? OPD 5. Whether the defendants have become owner in possession of the suit land by virtue of adverse possession? OPD 6. Relief. The issues No.1,3,4 and 5 were answered in negative and issue No.2 in affirmative. The suit was dismissed by learned Sub Judge on 9.12.1996. In appeal learned Addl. District Judge has set aside the decision dated 9.12.1996 and decreed the suit, the appellants were restrained from interfering in the ownership and possession of the respondent and other co-sharers on the suit land. In these circumstances, the appellants have filed the appeal. The appeal has been admitted on the following substantial questions of law:- 1. Whether the presumption of truth can be attached to Jamabandi when the defence taken by the party in the civil suit is that of adverse possession? 2. Whether the Lower Appellate Court below has misread, misconstrued and misinferred evidence on record and has reversed the judgment of the Lower Court below without any justification? Smt. Shankru appellant No.1 died during the pendency of the appeal and her name was deleted as her legal representatives were already on record. 4 5. I have heard Mrs. Ranjana Parmar, learned counsel for the appellants and Mr. Lovneesh Kanwar, learned counsel for the respondent and have also gone through the record. Mrs. Ranjana Parmar has submitted that the learned lower Appellate Court has erred in reversing the judgment, decree dated 9.12.1996 passed by learned Sub Judge Ist Class, Sarkaghat. Issue No.5 in para-5 of the judgment of the trial Court has been answered in negative but in fact while discussing issue No.5, the learned trial court at the end of para- 15 of the judgment has clearly answered issue No.5 in affirmative and found the appellants owners in possession of the suit land and has rightly dismissed the suit. The learned lower Appellate Court has misread, misconstrued the evidence on record and therefore, erred in reversing the well reasoned judgment of the learned trial Court. 6. The learned counsel for the respondent has submitted that learned lower Appellate Court after due appreciation of evidence on record has recorded a finding of fact which requires no interference in second appeal. He has submitted that no substantial question of law is involved in the appeal. The learned counsel for the respondent has supported the impugned judgment, decree. 7. The aforesaid two substantial questions of law are interconnected and therefore both of them are being taken up together for consideration and disposal. The respondent had filed a suit for permanent prohibitory injunction, claiming herself to be owner in possession of the suit land alongwith other co-sharers vide jamabandi for the years 1991-92. The appellants in the written statement have denied the ownership and possession of the 5 respondent and other co-sharers. They have taken the objection of identification of the suit property and that suit is bad for want of necessary parties. The appellants have also taken the plea of adverse possession on the suit land since May 1950 by pleading that the appellants had constructed a cowshed on the suit land and courtyard in front of the cowshed. The appellants have taken plea that nautor land was granted to respondent and her co-sharers behind their back, but they were never put in possession of the suit land. Ex.PW-1/A is the jamabandi for the year 1991-92 showing the respondent and her co-sharers owners in possession of the suit land. Ex.DW5-A is the tatima prepared on 15.12.1995 indicating that on khasra No.505 there is a cowshed and courtyard. 8. PW-1 Shiv Dei has stated that she is owner in possession of khasra No.505 along with her sons, one and half years ago appellants forcibly tried to raise temporary shed on the suit land. In cross-examination it was suggested to her that appellants have constructed their cowshed on the suit land in the year 1950. It was not put to her that appellants are in adverse possession on khasra No.505. The appellants gave suggestion to respondent in cross examination that suit land is one biswa. PW-2 Sukh Ram has supported the case of the respondent and has stated that respondent and her sons are owners in possession of the suit land. He has stated that he remained member of the Panchayat. In cross- examination he has denied that respondent was not put in possession of the suit land. This witness was put suggestion in cross examination that land is one biswa and not nine biswas. The 6 appellants to this witness also did not put the suggestion that they are owners of the suit land by way of adverse possession. PW-3 Sant Ram has stated that the suit land is nine biswas and respondent is owner in possession of the suit land. In cross-examination he has stated that he had never seen possession of appellants on the suit land. 9. DW-1 Parkash Chand has stated that appellants are in possession of the suit land since May 1950, there is a cowshed on the suit land. The suit land is one biswa. DW-2 Nand Lal has stated that appellants are in possession of the suit land and they had constructed a cowshed thereon. In cross-examination he has stated that the suit land is about one biswa. The settlement was carried in the years 1967-68 and in the settlement even unauthorized possessions were recorded. DW-3 Dilbar Singh has stated that since the time of his ancestral he has seen the possession of appellants on the suit land. In cross-examination he has stated that in the year 1988 Patwari and Kanungo came to deliver possession to respondent but he does not know when the possession was given. DW-4 Surat Ram has stated that he has seen the possession of appellants on the suit land. He has seen cowshed for the last 40-50 years. In cross-examination he has stated that in settlement the persons who were found in possession were recorded as such in the record. DW-5 Diwan Chand Patwari has proved tatima Ex.DW-5/A. He has shown his ignorance that cowshed was constructed by Parkash Chand. In cross-examination he has stated that jamabandi 7 Ex.PW-1/A is correct. He has ultimately stated that he does not know who had constructed the cowshed. 10. The appellants have taken the plea of adverse possession on the suit land since May 1950. DW-1 Parkash Chand one of the appellant has stated about the possession of the appellants on the suit land since May, 1950. The statement of DW-1 was recorded on 22.6.1996 and on that date he has given his age 26 years, therefore, how he can say that appellants are in possession of suit land since 1950. The possession howsoever long is not adverse unless other ingredients of adverse possession such as hostile animus and continuity is possession against true owner for over 12 years are established. The appellants even to the witnesses of respondents have not put the case of hostile animus of appellants on the suit land. The oral evidence of the appellants is not of the nature so as to rebut the presumption of truth attached to jamabandi for the year 1991-92 PW-1/A which shows respondent and other co-sharers owners in possession of the suit land,. The appellants are claiming adverse possession on the suit land since May 1950 but they have not given any explanation why their names were not recorded in the revenue record even though DW-2 Nand lal and DW-4 Surat Ram have stated that during settlement even the unauthorized possessions of the persons were recorded. DW-2 has stated that settlement took place in the year 1967-68. In jamabandi Ex.PW-1/A respondent has been recorded as owner in possession of the suit land with other co- sharers. 8 11. The appellants in the written statement have taken the plea of adverse possession on whole of the suit land but later on during evidence have projected the case that they are in possession of land measuring 1 biswa to 1 ½ biswas. The appellants have thus taken a different stand in the evidence to the stand taken by them in written statement, this also negates the plea of adverse possession of appellants on the suit land. 12. The appellants have also taken the objection that suit is bad for want of necessary parties. The suit has been filed by the respondent against appellants on the ground that appellants are threatening to interfere in possession of the respondent and other co- sharers. The respondent never put forward the case that she is exclusive owner in possession of the suit land. A co-owner has right to file a suit for injunction against stranger. The plea of the appellants that suit is bad for want of necessary parties is thus rejected. 13. The learned lower Appellate Court has rightly appreciated the material on record. The learned counsel for the appellants has failed to make out a case for interference. The substantial questions of law No.1 and 2 are accordingly decided against the appellants and in favour of the respondent. 14. No other point was urged. 15. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. December 15, 2009 (Kuldip Singh), (sks) Judge.