IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 63 of 1999. Judgment reserved on: 23.4.2009 Date of decision: 24.4.2009. State of H.P. ……….Appellant Vs. Ram Lal ……Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondent : Mr. Rakesh Jaswal, vice Mr. M.S. Chandel, Senior, Advocate, for the respondent. Kuldip Singh, Judge. This appeal has been directed against the judgment, decree dated 25.8.1998 passed by learned District Judge, Bilaspur in Civil Appeal No.93 of 1992, reversing judgment, decree dated 24.8.1992 passed by learned Sub Judge Ist Class, Ghumarwin, in Case No.143-1 of 1988. 2. The facts, in brief, are that respondent had filed a suit for declaration that he is owner in possession of suit land comprised in khata khatauni No.345 min/445, khasra No.390, situated in village Sunhani, Tehsil Ghumarwin, District Bilaspur, measuring 1-18 bighas. Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 The respondent had claimed title on the suit land on the basis of adverse possession since the time of his forefather which is recorded in revenue record also. It has also been pleaded that the possession of the respondent is open, peaceful and without any interruption for more than 50 years and was hostile. The patwari halqua threatened to dispossess the respondent and therefore, he served a notice under Section 80 CPC and filed suit on 1.6.1988, in alternative respondent had prayed decree of possession also. The appellant did not file written statement despite several opportunities granted and the defence of the appellant was struck-off. The learned Sub Judge had framed the following issues:- 1. Whether the plaintiff has become owner in possession over the suit land by virtue of adverse possession as alleged? OPP 2. Whether the defendant is interfering with the possession of plaintiff over the suit land as alleged? OPP 3. Whether the plaintiff is entitled for possession if found to be dis-possessed during the pendency of the suit as alleged? OPD 4. Relief. The issues No.1,2 were answered in negative and issue No.3 was held to be redundant. The suit was dismissed on 24.8.1992. The respondent filed appeal against the decision dated 24.8.1992. The learned District Judge allowed the appeal and decreed the suit, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether in the light of the statement and clear admission by the witness for the plaintiff that State is owner of the land in 3 question, appeal could be allowed by the lower appellate court? 2. Whether mere possession of respondent on the suit land could mature in adverse possession, if so its effect? 3. Whether the lower appellate court committed an error in misreading and misappreciating the materials on record in reversing the judgment and decree of the trial Judge? 3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the appellant and Mr. Rakesh Jaswal, Advocate, learned counsel for the respondent and have also gone through the record. It has been submitted on behalf of the appellant that the respondent has failed to plead and prove ingredients of adverse possession on the suit land. The possession of the respondent on the suit land is not better then a trespasser. The learned District Judge has erred in reversing the well reasoned judgment of the learned Sub Judge. The learned counsel for the respondent has submitted that possession of the respondent has been recorded in jamabandi 1981-82 Ex.P-3, missal haquiat 1962-63 Ex.P-4, jamabandi 1955-56 Ex.P-5 and in missal haquiat Ex.P-6. In khasra girdawari Ex.P-7, again the suit land has been shown in possession of respondent and the nature of land has been shown as irrigated. He has relied State of Himachal Pradesh vs. Khazana Ram 1999 (1) S.L.J. 174 in support of his submissions. 4. The substantial questions of law No.1 to 3 are interconnected, therefore, all of them are being taken up together for disposal. The respondent in the plaint has specifically pleaded that 4 he is owner in possession of the suit land openly, peacefully and without any interruption for the last more than 50 years and his possession being hostile he has become owner in possession by virtue of adverse possession. This assertion of the respondent in the plaint was not denied by the appellant. In fact learned District Judge in the impugned judgment has observed that 11 opportunities were granted to the appellant and only thereafter defence of the appellant was struck off. It means the appellant has no defence in the case. 5. PW-1 Ram Lal has stated that he is in possession of the suit land for the last more than 60 years openly, he cultivates the suit land. The patwari had threatened to dispossess him. He served a notice under Section 80 CPC Ex.P-1. He has become owner of this land and respondent has no concern with the suit land. In cross-examination he has stated that he had never applied to the appellant for grant of ownership to him of this land. He denied that appellant is the owner of this land. The statement of PW-1 is complete. The assertion of respondent that he is owner in possession of the suit land by way of adverse possession has been supported by PW-2 Sant Ram and PW-3 Hari Krishan, but both of them in their cross-examination have stated that appellant is the owner of the suit land. The statements of PW-2 and PW-3 that appellant is the owner of the suit land cannot be read in isolation or out of context. PW-2 has stated that the possession of the respondent on the suit land is open for the last 50-60 years and he cultivates the suit land. PW-3 has also stated that possession of 5 the respondent on the suit land is open. The statements of PW-2 and PW-3 that the State is owner of the suit land cannot be stretched too much, this part of their statements that appellant is owner of the suit land is nothing but their opinion, factually they have stated that respondent is in possession of the suit land openly and he is cultivating the same. This means that respondent by asserting his own right on the suit land is cultivating the same. In Ex.P-3, Ex.P-4, Ex.P-5, Ex.P-6 in the column of Lagan the entry is “Bila Lagan Bawaza Kabza Nazaij”. In State of Himachal Pradesh vs. Khazana Ram supra a similar entry was under consideration and learned Single Judge of this Court has held as follows:- “Strangely enough in column No.7 pertaining to ‘Lagan’ it is recorded “BILA LAGAN BAWAZA NAZAIJ KABZA” . It would, thus, follow that the respondent has been in possession of the suit land un-authorisedly and without payment of any rent”. 6. The learned Single Judge ultimately has held that no other evidence was necessary to hold that respondent has ripened his un-authorised possession into one of title. It is not the case of either side that suit land is in possession of the respondent with the permission of the appellant. The State of Himachal Pradesh vs. Khazana Ram is squarely applicable in the present case in the facts and circumstances of the case. The hostile possession of the respondent on the suit land has been proved on record to be more than 30 years prior to the filing of the suit. It is not the case of the appellant that entries in Ex.P-3 to Ex.P-6 were showing possession on the suit land were made in routine. On the contrary Ex.P-4 and Ex.P-6 are missal haquiats where entries are made after verification. 6 On behalf of the appellant no case of misreading and misappreciation of the case has been made out. The learned District Judge has rightly appreciated the material on record. It has not been pointed out that inadmissible evidence has been considered and material evidence has been ignored by learned District Judge in decreeing the suit of the respondent. The substantial questions of law 1 to 3 are accordingly decided against the appellant. 7. No other point was urged. 8. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh), Judge April 24, 2009 (sks)