IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 295 of 1997. Judgement reserved on: 25.3.2009. Date of decision: April 1, 2009. Chanan ….. Appellant. Vs. Hari Ram & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Romesh Verma, Advocate. For the Respondents : Mr. Raman Sethi, Advocate, for respondent No.1. Kuldip Singh, Judge. This appeal has been directed against judgement, decree dated 17.9.1997 passed by learned District Judge, Solan camp at Nalagarh, in Civil Appeal No. 21-NL/13 of 1994, affirming the judgement, decree dated 20.1.1994, passed by learned Sub Judge Ist Class, Arki camp at Nalagarh, in case No. 328/1 of 1989 / 211/1 of 1991. The appellant was defendant No.1, respondent No.1 was plaintiff and respondent No. 2 was defendant No. 2 in the suit. 2. The pleaded case of respondent No. 1 was that suit land comprised in khasra No. 376/ 332 measuring 15 biswas, village Ghansot, Hadbast No. 135, Tehsil Nalagarh, District Solan was Whether the reporters of the local papers may be allowed to see the Judgment? …2… allotted to him by the State being landless in the year 1975. The respondent No. 1 since then is exclusive owner in possession of the suit land. There is a Bangala Colony adjacent to the suit land where appellant and respondent No. 2 were residing. They threatened to encroach upon the suit land without any right, title. They even attempted to dig foundations on a part of the suit land. The respondent No. 1 had reported the matter to Sub Divisional Magistrate, Nalagarh as well as to the police and police came to the spot on 18.12.1989. The threats of appellant and respondent No. 2 were continuing, therefore, respondent No. 1 filed a suit for permanent prohibitory injunction restraining the appellant and respondent No. 2 from interfering in possession of respondent No. 1 on the suit land. In alternative, respondent No. 1 had prayed for decree of possession in case appellant and respondent No.2 succeed in dispossessing him from the suit land or encroaching any part of the suit land. 3. The appellant contested the suit by filing written statement and took preliminary objections of maintainability, lack of cause of action and locus-standi of respondent No. 1 to file the suit. On merits, it was denied that respondent No. 1 is owner in possession of the suit land. It was pleaded that appellant is in possession of the suit land to the extent of 1352 Sq. feet out of the suit land as owner, he has constructed a residential house, one Chhapar and courtyard thereon since March 1959 himself and through his predecessor in title. It has also been pleaded that predecessor in title of appellant came to Nalagarh in March 1959 and occupied the suit land by …3… erecting Jhuggi and Chhapar and on remaing portion courtyard to the extent of 1352 Sq. feet. Later on after five six years, the predecessor in title of appellant had raised Kotha in place of Kutcha Jhuggi over the suit land. The predecessor in title of appellant had also applied to the State for allotment of some land for the purpose of abadi, as Kotha and Chhapar constructed by the predecessor of appellant was not sufficient to accommodate ten family members. The State allotted land comprised in khasra No. 385/377/332, measuring 2 biswas to the predecessor of appellant in the year 1975-76, which was adjacent to the suit land. Thus the appellant is in possession of Kotha and Chhapar, courtyard measuring 1352 Sq. feet out of the suit land. The possession of the appellant is uninterrupted, continuous and hostile to the knowledge of all concerned, he has become owner of land comprised 1352 Sq. feet by way of adverse possession. The appellant has also taken the plea that allotment of land in favour of respondent No. 1 was illegal. It has also been pleaded that respondent is estopped from filing the suit. The respondent No. 2 did not file any written statement, in fact he was proceeded ex-parte. The respondent No. 1 filed replication and reiterated his stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendant No.1 has become the owner of the part of suit land i.e. 1352 Sq. ft. of the suit land by way of adverse possession, as alleged? OPD. 2. Whether the suit of the plaintiff is not maintainable, as alleged? OPD. 3. Relief. …4… The learned trial court decided issues No. 1 and 2 in negative and decreed the suit on 20.1.1994. In appeal, learned District Judge maintained the judgement, decree dated 20.1.1994, hence this appeal, which has been admitted on the following substantial questions of law:- 1. Whether the grant of land made in favour of respondent No. 1 by the State under the landless scheme was valid and legal, if not, what is the effect of such grant? 2. Whether the dispute regarding the title over the suit property including the validity of the grant or otherwise was required to be determined by the civil court, if so its effect? 3. Whether the subject matter of the dispute could be determined by the courts below without impleading the State as necessary party? 4. I have heard Mr. Romesh Verma, learned counsel for the appellant and Mr. Raman Sethi, learned counsel for respondent No. 1 and have also gone through the record. On behalf of appellant, it has been submitted that the allotment of suit land in favour of respondent No. 1 was not valid. The title of respondent No. 1 was required to be determined by the civil court. The learned counsel for t he appellant has submitted that the trial court has erred in dismissing the application under Order 1 Rule 10 CPC, which was filed by the appellant. It has been submitted that the appellant had acquired title over the suit land on the basis of adverse possession. The learned counsel for the appellant has submitted that State was necessary party in the suit. The learned …5… counsel for respondent No.1 has supported the impugned judgement, decree and has submitted that two courts below have recorded a finding of fact regarding alleged adverse possession of respondent No.1 on the suit land. The re-appreciation of evidence in second appeal is not permissible. He has prayed for dismissal of the appeal. Substantial question of law No. 3. 5. The appellant in his written statement has not taken the plea that suit is bad for not impleading the State, being necessary party. There is no issue to this effect. The appellant had filed an application on 20.2.1990, under Order 1 Rule 10 CPC for impleading the State of Himachal Pradesh as defendant in the suit, but this application was not pressed as per order dated 14.11.1990 of the trial court. Hence, substantial question of law No. 3 is decided against the appellant. Substantial questions of law No. 1 and 2. 6. The substantial questions of law No. 1 and 2 are interconnected and therefore, both of them are being taken up together for disposal. The learned counsel for appellant has submitted that respondent No. 1 was not eligible for allotment under the scheme as he was a retired employee of Revenue Department, he was not landless person, the income of respondent No. 1 was more than the prescribed limit for allotment, the respondent No. 1 was not dependant upon agriculture as he was a retired government servant. The connected submission of learned counsel for the appellant is that appellant had acquired title on the suit land by virtue …6… of adverse possession. There is no issue regarding the eligibility of respondent for allotment under the scheme. 7. DW 3 Chanan Ram in his statement has stated nothing regarding the eligibility of respondent No. 1 for allotment under the scheme nor it has been proved by appellant what were the eligibility conditions for allotment under the scheme. In the grounds of appeal in the lower appellate court, the eligibility conditions for allotment of land have not been elaborated, similarly in the second appeal the eligibility conditions of allotment have not been highlighted or explained. Therefore, it cannot be said that allotment of suit land by State in favour of respondent No. 1 under the scheme was not valid. The appellant has taken a plea of adverse possession on land measuring 1352 Sq. feet out of the suit land, therefore, the appellant admitted that respondent was atleast owner of suit land at one point of time. In these circumstances, the ownership of respondent No. 1 on the suit land cannot be disputed by the appellant. It is a different matter whether appellant has proved his adverse possession on the suit land or not. In so far as the adverse possession of appellant on the suit land is concerned, the evidence of appellant is not in consonance with his pleadings. In the written statement, it has been pleaded that predecessor of appellant came to Nalagarh in March 1959 and occupied the suit land by erecting Jhuggi and Chhapar and courtyard to the extent of 1352 Sq. feet. The predecessor of appellant after five –six years, constructed a Kotha in place of Kutcha Jhuggi over the suit land. In his statement in the court, Chanan Ram has stated that he constructed a Chhapar and Kotha on 1352 Sq. feet …7… in the year 1959. In cross-examination, he has stated that 2 biswas land was allotted to his father in the year 1976-77 and thereafter they constructed house on that land. He has admitted that land was allotted to his father on the ground that he was not having any house. This contradicts the case of the appellant that his father occupied the suit land in the year 1959 by erecting Jhuggi, Chhapar and courtyard. 8. DW 2 Nazir Hussain has stated that on the disputed land Bhagwan Dass father of the appellant had constructed a house, which is having electricity connection. PW 1 Hari Ram has stated that Chhapar was constructed during the pendency of the suit. In Ex. P-1 copy of jamabandi for the year 1986-87 of the suit land there is no mention of Chhapar or Kotha. The suit land in Ex. P-1 has been shown to be owned and possessed by respondent No.1, similar is the position in Ex. P-2 copy of khasra girdawari of the suit land from the years 1986-87 to 1991-92. Ex. DW 1/A is a copy of electricity bill in the name of one Chaman Lal, who is not a party in the suit. The electricity bill in the name of appellant or his father showing electricity supply on a premises erected on suit land has not been produced. The learned trial court on the issue of adverse possession has recorded finding against the appellant, which has been affirmed by the learned lower appellate court. There is concurrent finding of fact regarding adverse possession against the appellant. In second appeal, re-appreciation of evidence is not permissible. There is no perversity in the impugned judgement, decree nor it has been shown that impugned judgement, decree are based upon inadmissible evidence or material evidence has been ignored. The appellant has …8… failed to make out a case for interference. The substantial questions of law No. 1 & 2 are decided against the appellant. 9. No other point was urged. 10. The result of above discussion, the appeal fails and is accordingly dismissed. No costs. April 1, 2009. ( Kuldip Singh ) (Hem) Judge.