IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 286/1995 Reserved on: 17.11.2008 Decided on:1.1.2009 Sita Devi and others. …Appellants. Versus Laturia and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the appellants : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate for respondents No.1 & 3 to 5. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 2.6.1995 passed by the learned District Judge, Hamripur in civil appeal No. 76 of 1990. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as ‘the plaintiffs’) filed a suit for declaration by way of permanent injunction to the effect that they are owner in possession of the suit land as mentioned in Khata No.1 min, khatauni No.2 min, khasra No. 605 measuring 3 kanals 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 15 marlas situated in Tikka Patora, Tappa Pahlu, Tehsil and District Hamirpur and the appellants-defendants had no concern with it and to restrain them from interfering in their possession. In the alternative the suit was for possession. It was primarily contended in the plaint that the suit land was uncultivated and has been coming in ownership and possession of the plaintiffs from the very beginning and it was never handed over to the defendants for cultivation. The nature of the suit land has been stated to be Kharetar and the defendants have never paid any rent to the plaintiffs. It was only during the consolidation proceedings, they came to know that the defendants have been wrongly entered as non-occupancy tenants in the column of possession which entry is wrong and against law. The defendants resisted the suit. The trial court decreed the suit on 10.4.1990. The defendants preferred an appeal before the learned District Judge, Hamirpur. The same was dismissed by the learned District Judge on 2.6.1995. This Regular Second Appeal has been directed against the judgment and decree dated 2.6.1995 passed by the learned District Judge, Hamirpur. This Regular Second Appeal was ordered to be connected with RSA No. 285/1995, however, for maintaining the clarity in the facts, both the appeals have been taken up separately. This Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the entries in the revenue record ‘Bila Lagan Ba Tasavar Malkiat Khud’ for the last more than 30 years are sufficient to establish the adverse possession? 2. When there are long standing entries in the revenue record depicting the possession of the defendant- appellants, could the courts below raise this presumption in favour of the owner by applying the principle that ‘possession follows title’? 3 3. When the defendants-appellants were not proved themselves to be in long standing possession which fact was not only supported by the revenue entries but also by the admission of one of the co-owner, could the decree for possession be passed in favour of the plaintiffs merely on the ground that the land recorded in the revenue record is Kharetar land?” Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the judgments and decrees passed by both the learned courts below are contrary to law. He has also strongly relied upon the entries made in the revenue record to establish that his clients had been shown as tenants and in alternative he has argued that they have become owners of the suit land by way of adverse possession. Mr. Ramakant Sharma, Advocate has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter- connected, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. PW-1 Laturia Ram has stated that the plaintiffs are owners in possession of the suit land, which is Kharetar. The status of the land is fallow. He has denied in his cross-examination that any grass was cut from the suit land by the defendants. He came to know about the wrong entries in the year 1986. PW-2 Ramesh Chand has supported the version of plaintiff. It is clear from Ex.P-1, copy of jamabandi for the year 1978-79 that the land is Kharetar. DW-1 Piar Chand has deposed that the nature of the land is ‘Ghasani’. They considered themselves to be the owners of the land in question which was in their possession for the last more than forty years. Nobody has objected to their possession. He has further 4 deposed that the grass grows only during the rainy season and it is cut in the months of November/December. According to him no co-owner has ever objected to their possession. DW-3 Rattan Chand has supported the possession of the defendants. Ex.D-2 is the copy of jamabandi for the year 1929-30, Ex.D-3 is the copy of jamabandi for the year 1978-79 and Ex.D-4 is the copy of jamabandi for the year 1986-87. In these jamabandis, the suit land has been shown to be under tenancy. The revenue entries did not reflect the payment of rent. The payment of rent is sine qua non to establish the tenancy. The creation of tenancy is a bilateral act. The nature of the land is Kharetar. It is uncultivable land. Both the courts below have rightly discarded the revenue entries whereby the defendants were shown as non-occupancy tenants. It has come in the evidence that the grass grows during the rainy reason and the defendants used to cut the grass in the months of November/December only. The defendants have failed to prove their ownership by way of adverse possession. There is nothing on record to establish that even after cutting the grass, the defendants remained in possession of the suit land. It is necessary for the party to prove ingredients of adverse possession like, hostile, uninterrupted, peaceful, open and continuity in possession. The defendants are claiming themselves to be the tenants that mean they have always recognized the plaintiffs as true owners. In these circumstances also, they could not take up the plea of adverse possession. Consequently, there is no merit in this appeal and the same is dismissed. There will, however, be no order as to costs. 1.1. 2009 (Rajiv Sharma ), J. *awasthi*