IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 354 of 1995 Decided on: 20.7.2011 Sadhu Ram …Appellant. Versus Vinay Chand and others. …..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. Balwant Singh, Advocate vice counsel. For the Respondents : Mr. Ajay Sharma, Advocate, for respondent No.1. Respondents No. 2 to 7 and 10 to 16 exparte. Kuldip Singh, Judge(oral) This appeal is directed against the judgment, decree dated 18.9.1995, passed by the learned Additional District Judge-1, Kangra at Dharmshala in Civil Appeal No. 26-P/94, reversing the judgment, decree dated 16.4.1994, passed by the learned Sub Judge(I), Dharmshala in Civil Suit No.78 of 1989. 2. The facts, in brief, are that the respondents No. 1 to 14 had filed a suit for possession against the appellant, in which respondents No. 15 and 16 were also impleaded as proforma defendants. The pleaded case of respondents No. 1 to 14 is that they and proforma respondents No. 15 and 16 are owners of the suit land more specifically described in the plaint. They were 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 dispossessed by the appellant in April 1986. The respondents No. 1 to 14 objected to the wrongful act of the appellant as he started proclaiming himself as tenant on the suit land. He was never inducted as tenant on the suit land either by respondents No. 1 to 14 or respondents No. 15, 16. In these circumstances, the suit was filed for recovery of possession on the basis of title alongwith recovery of Rs.2000/- as damages for use and occupation of the suit land from August 1986 to June 1989. 3. The suit was contested by the appellant by filing a written statement in which he took preliminary objections of maintainability, non-joinder of necessary parties, locus-standi and limitation. On merits, he denied that he took forcible possession of the suit land in April, 1986. He claimed tenancy on 3 Kanals 15 Marlas of land over which he claimed ownership in view of H.P. Tenancy and Land Reforms Act. On the rest of the land he pleaded his possession for more than 30 years and claimed ownership by way of adverse possession. The appellant denied the claim of damages of respondents No. 1 to 14. The respondents No.15 and 16 did not put in appearance and they were proceeded against exparte. The replication was filed and on the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owner of the suit land, as alleged? OPP. 2. Whether defendant No.1 has forcibly occupied the suit land in April, 1986, as alleged? OPP 3. Whether the plaintiffs are entitled for damages, as claimed by them? OPP. 3 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the suit is bad for non-joinder of necessary parties? OPD. 6. Whether a previously instituted suit between the same parties regarding the same land on the same cause of action has been dismissed by the civil court and, therefore, the plaintiff are precluded from bringing the present suit? OPD. 7. Whether the plaintiffs are the non-residents of H.P. for the last several years and are settled at Jammu and Delhi respectively and they have not filed the suit. Their signatures on the plaint and on Vakalatnama are false and procured and the present suit has been instituted on their behalf by some interested persons with ulterior motive? OPD. 8. Whether the plaintiffs have no locus-standi to sue, as they had no right, title or interest in the land? OPD. 9. Whether the suit is barred by limitation? OPD. 10. Whether defendant No.1 has become owner of the suit land by way of adverse possession, as alleged? OPD. 11. Whether the defendant No.1 is tenant of the suit land to the extent of 3 kanals 15 marlas as claimed? OPD. 12. Relief. The issues No. 1, 3 and 9 were answered in affirmative, issues No. 2, 4 to 6, 8, 10 and 11 in negative, issue No.7 was not pressed and the suit was dismissed on 16.4.1994. In appeal, the learned Additional District Judge set aside the judgment, decree dated 4 16.4.1994 and decreed the suit of respondents No. 1 to 14 hence, the Second Appeal, which has been admitted on the following substantial questions of law:- 1. Whether suit of the plaintiff was within limitation and the case was covered by Article 142 of the Limitation Act? 2. Whether the plaintiff was out of possession and a clear case of ouster for more than 12 years before filing of the suit was made out? 3. Whether the appellant has acquired ownership by way of adverse possession or in any event acquired the limited right of tenancy by adverse possession as the appellant was in open, continuous, hostile possession as of right for more than 12 years before the filing of the suit? 4. I have heard learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the appellant that the appellant is in adverse possession of the suit land and he has become owner of the suit land. In alternative, it has been submitted that the appellant has acquired limited right of tenancy by way of adverse possession. Learned counsel for the respondents has submitted that no substantial question of law is involved in the appeal inasmuch as the learned lower Appellate Court has recorded a finding of fact that respondents No.1 to 14 are owners of the suit land and the plea of adverse possession of the appellant has been rejected. The findings recorded by the learned lower Appellate Court are based upon facts. In Second Appeal re-appreciation of evidence is not 5 possible. He has submitted that no fault can be found with the impugned judgment, decree. 5. The aforesaid substantial questions of law No. 1 to 3 are inter-connected, therefore, all of them are taken up collectively for determination. I have gone through the plaint, the suit is based upon title. The respondents No. 1 to 14 have pleaded that they were dispossessed wrongly by the appellant in April 1986. The appellant in the written statement has denied that he dispossessed respondents No. 1 to 14 as claimed by them. He has asserted that his possession on the suit land is more than 30 years. On 3 kanals 15 marlas he claimed tenancy and also projected his case that in view of H.P. Tenancy and Land Reforms Act he has become owner of 3 kanals 15 marlas of land and on rest of the suit land he has become owner on the basis of adverse possession. 6. There was earlier round of litigation between the parties. In Ext.P-4 judgment dated 27.12.1988 passed in Civil Appeal No. 180 of 1985 the learned Additional District Judge has recorded a finding that the appellant is in possession of the entire land but not as a tenant. In view of judgment dated 27.12.1988, the plea of the appellant that he is tenant on 3 kanals 15 marlas of land cannot be accepted. In so far as rest of the land is concerned, the appellant in the plaint has not pleaded the starting point of adverse possession. In fact, the pleadings of adverse possession in the written statement are not in conformity with law, precise time of starting adverse possession and when it matured have not been pleaded. 7. The appellant appeared as DW-1 and in his statement he has not whispered about the adverse possession on the suit 6 land. He again stated that he is tenant on the entire land then said that the Court has also held that he is tenant on 3 kanals 15 marlas of land. In his statement the appellant has claimed his possession over the suit land for the last 25 years. It is well settled that the possession how so long will not convert into adverse possession unless and until well known ingredients of adverse possession are pleaded and proved. The statement of DW-1 is far away from the case of adverse possession pleaded by him. 8. The Courts below after due appreciation of material on record have not accepted the plea of adverse possession of the appellant on the suit land. At the time of hearing of the appeal, it has not been pointed out that the findings of the two Courts below on adverse possession are perverse or while recording such findings the two Courts below have considered inadmissible evidence. The re-appreciation of evidence is not permissible in Second Appeal. The appellant has also failed to establish his alternative plea of tenancy by way of adverse possession. In his statement as DW-1 the appellant has not stated anything about his alternative plea of tenancy by adverse possession. The suit is governed by Limitation Act, 1963. There is no Article 142 in the Limitation Act, 1963, hence substantial question of law No.1 does not arise. There is no merit in the appeal. The substantial questions of law No. 1 to 3 are decided against the appellant. 9. In view of above, the appeal is dismissed with no order as to the costs. ( Kuldip Singh ), July 20, 2011. Judge. (vt)