IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 112 of 2000. Judgement reserved on: 9.9.2010. Date of decision: 16.9.2010. Punnu alias Prem Raj ….. Appellant. Vs. Maheshu …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Anand Sharma, Advocate. For the Respondents : Mr. Sunil Awasthi, Advocate. Kuldip Singh, Judge. The plaintiff has come in appeal against judgement, decree dated 9.11.1999 passed by learned District Judge, Chamba in Civil Appeal No. 47/98 allowing the appeal, setting aside the judgement and decree dated 13.7.1998 passed by learned Sub Judge Ist Class, Dalhousie in Civil Suit No. 89/95. 2. The facts in brief are that the plaintiff had filed a suit for possession of shop constructed over khasra No. 864/1 Mouza Sher, Pargana Bathri, Tehsil Bhatyat, District Chamba on the basis of title. It is the case of the appellant that he was in government job, the respondent who is his real brother had requested the appellant to Whether the reporters of the local papers may be allowed to see the Judgment? …2… give the shop to him for running a tea stall as a licensee. The appellant had given shop to the respondent on the condition that he would vacate the shop when required by the appellant. In January 1995, the appellant had requested the respondent to hand over the possession of the shop, he refused. The appellant had sent a notice to respondent terminating his licence and thereafter the suit was filed. 3. The respondent contested the suit and took the plea that he had purchased the land in dispute for a consideration of Rs.2200/- in 1969-70 by oral sale and appellant had handed over the possession of the land to respondent in the year 1969-70. Thereafter the respondent constructed two kucha shops, out of them bigger shop in the year 1973-74 was made pucca. The appellant had not raised any objection at the time of construction of the shops. The respondent has claimed adverse possession on the shops since 1969-70. The appellant filed replication to the written statement and reiterated his stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit property has been purchased by the defendant for consideration of Rs.2200/- in 1969-70 and thereafter he raised the shops as alleged? OPD. 2. If issue No. 1 is not proved in affirmative whether the defendant has become owner of the suit property by way of adverse possession as alleged? OPD. 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff is estopped by his act and conduct? OPD. …3… 5. Whether the plaintiff has suppressed material facts? OPD. 6. Whether the suit is not within time? OPD. 7. Whether the possession of the shop of the defendant was given as licensee, which has already been determined? OPD. 8. Relief. Issues No. 1 to 6 were answered in negative and issue No. 7 in affirmative and the suit was decreed by the learned Sub Judge on 13.7.1998. In Civil Appeal No. 47/98, the learned District Judge after accepting the appeal on 9.11.1999 set-aside the judgement, decree dated 13.7.1998, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether a person claiming adverse possession is not required to show exactly as to from which date his possession has become adverse? 2. Whether the lower appellate court was right in holding that the defendant had perfected his title by way of adverse possession? 3. Whether the entries in the revenue records carry a presumption of truth if not rebutted by cogent and convincing evidence? …4… 4. Whether a person claiming adverse possession is not required to plead and prove some `overt act’? 5. Whether a licencee’s possession can be termed to be adverse possession merely on the ground of long possession when it has been duly terminated also? 4. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that plea of adverse possession has not been pleaded and proved in accordance with law. The presumption of truth is attached to jamabandi Ex. P-2 wherein appellant has been recorded as owner. The respondent has not rebutted the presumption attached to jamabandi Ex. P-2. The shop was given to respondent on licence and possession of the licensee cannot be adverse to the owner. The learned counsel for the appellant has submitted that learned District Judge has misconstrued, misinterpreted the evidence on record in returning the finding that respondent is in adverse possession of the suit land. The learned counsel for the respondent has supported the impugned judgement, decree. 5. The substantial questions of law No. 1 to 5 are interconnected and therefore, all of them are being considered collectively. According to appellant he had given the shop to respondent as licensee as appellant was in government job and posted outside. The defence of the respondent is that he had purchased the land in the year 1969-70 and thereafter constructed …5… two kucha shops on the land, out of them bigger shop was made pucca in the year 1973-74. PW 1 Punnu Ram has stated that he is owner of khasra No. 864 measuring 3 bighas and on 1½ biswas of this khasra number, he had constructed shop in the year 1969-70. He had given this shop to his elder brother on licence on the condition that he would return the shop on demand. He demanded the shop back in the year 1995 but respondent refused to return the shop, notice Ex. P-1 was issued to him. He has also proved jamabandi Ex. P-2. 6. DW 1 Maheshu Ram has stated that he had purchased the land from Punnu Ram for a consideration of Rs.2200/- in the year 1969-70. In 1969-70, he had constructed one bigger kucha shop and a small kiosk. He made bigger shop pucca after five-six years. He is in possession of the shops right from very beginning. In the year 1980-81, the appellant had asked him to remove the shops. The appellant put off the registration of the shops in his favour on one pretext or the other. In cross-examination, he has admitted that at that time appellant was posted outside Chamba. He admitted the notice which was given by the appellant. DW 2 Mehar Chand has stated that he had worked as carpenter when the shops were constructed 29-30 years ago, his statement was recorded on 23.3.1998. He has stated that he was engaged by Maheshu. DW 3 Faino Ram, who was examined on 23.3.1998, has stated that he had worked as mason when the shops were constructed 29-30 years ago. In cross-examination, he has stated that it took about 15 days for construction of second storey. DW 4 Balak Ram has stated that …6… shops were constructed by Mahesh 28-29 years ago, his statement was recorded on 20.4.1998. DW 5 Puran Chand has stated that Maheshu had applied for electricity meter on 23.7.1971 and the meter was installed on 24.8.1971. In cross-examination, he has stated that meter was installed with the permission of the owner. 7. The defence of the respondent is that he had purchased the land in the year 1969-70 from appellant for a consideration of Rs.2200/- and thereafter initially constructed one bigger kucha shop and a kiosk in the year 1969-70. The bigger shop was made pucca after five-six years. In other words, the shops were constructed around 1975-76. The witnesses of the respondent were examined in the year 1998 and have stated that the shops were constructed 28-30 years ago. Thus according to them the shops were constructed around 1968-70. These witnesses have stated regarding the existing shops. Thus according to these witnesses, the existing shops were constructed around the year 1970. There is material contradiction in the statements of DW 2 to DW 4 regarding the year of construction of the shops. DW 3 has stated that it took about 15 days for construction of second storey. It is not the case of the respondent that there is second storey in the structure. The jamabandi Ex. P-2 supports the version of the appellant that he is owner of the land in dispute. In these circumstances, heavy burden lies on the respondent to prove his defence of adverse possession. The respondent has not produced any accounts regarding the construction of the shops. …7… 8. The parties are real brothers. The respondent has admitted that at the relevant time the appellant was posted outside Chamba. As per appellant, in the year 1969-70, he had given the shop to respondent on licence on the request of respondent but with the condition that respondent would return the shop to appellant on demand. According to appellant, demand was made in the year 1995 for return of shop but when respondent refused, he got issued notice Ex. P-1 to respondent. The respondent has stated that he replied the notice, but no such reply has been placed on record. The respondent has taken contradictory stand. One version of the appellant is that he had purchased the land and therefore, he is owner of the land, his second version is that he constructed the shops in the year 1969-70 after the purchase of land. The third version of the appellant is that he has become owner of the land and shops by virtue of adverse possession. 9. The respondent has led no evidence except his own statement to prove oral sale. The conduct of respondent is not in consonance with the alleged oral sale. There is nothing on record that after the alleged oral sale, the respondent had approached the revenue authorities for attestation of mutation or any step for entering his name in the revenue record as owner of the land. The respondent as DW 1 has stated that appellant had put off the registration of the sale on one pretext or the other. It means, according to respondent it was a case of executory contract and not the executed contract. In these circumstances, the respondent cannot claim adverse possession regarding the land against the appellant. …8… 10. In Vishwanath Bapurao Sabale vs. Shalinibai Nagappa Sabale and others (2009) 12 SCC 101 the Supreme Court has held that in the case of adverse possession, the relationship of the parties may have to be taken into consideration. The parties are real brothers. There appears to be a ring of truth in the case of appellant that being real brother of respondent he had given the shops to respondent on licence. The respondent has taken the plea of title as well as of adverse possession regarding shops. 11. In L.N. Aswathama and another vs. P. Prakash (2009) 13 SCC 229, it has been held that plea based on title and adverse possession are mutually inconsistent and the latter does not being to operate until the former is renounced. The electricity connection and meter have not been connected with the shops in question. In any case, the electricity meter in the shop in favour of respondent in itself does not prove adverse possession. The respondent has not proved adverse possession. The evidence of adverse possession led by respondent is in conflict with his own statement as well as stand taken by him in the written statement. The learned District Judge has misconstrued, misinterpreted the evidence and pleadings in returning the findings that respondent has become owner of the property in dispute by way of adverse possession. In these circumstances, the impugned judgement, decree are not sustainable. The substantial questions of law No. 1 to 5 are decided in favour of the appellant and against the respondent. 12. No other point was urged. …9… 13. The result of above discussion, the appeal is allowed and the impugned judgement, decree dated 9.11.1999 passed by learned District Judge are set-aside and the judgement and decree dated 13.7.1998 passed by the learned trial court are restored with no order as to costs. September 16, 2010. ( Kuldip Singh ), (Hem) Judge.