IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 155 of 1997 alongwith Cross Objection No.134 of 2008. Date of decision: 20.8.2009 Sh.Purshotam Chand & anr. …. Appellants Versus Smt.Asha Devi and ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellants: Shri Rajnish K.Lal, Advocate vice Sh.K.D.Sood, Advocate. For the respondents: Sh.Ramakant Sharma, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral) This Regular Second Appeal was admitted on the following questions of Law:- 1. The Court below having rightly come to the conclusion that the plaintiff was not in adverse possession of the property should have dismissed the suit of the plaintiff in its entirety. 2. Whether the Court below has wrongly assumed that there were admissions on the part of the appellant that there were admissions and on the basis of which the suit could be decreed and the pleadings of the parties have been misconstrued which has vitiated the findings. 3. Whether the findings of the learned District Judge which was a court of fact are vitiated 2 for non-consideration of oral as well as documentary evidence and the conclusion drawn are not sustainable in law? This Regular Second Appeal is directed against the judgment passed by the learned District Judge, Hamirpur in Civil Appeal No.43 of 1991 decided on 10.3.1997 whereby the appeal filed by the present appellants was partly allowed and the judgment of the learned Trial Court dated 30.1.1991 decreeing the suit of the plaintiff Asha Devi has been partly set aside. Briefly stated the facts of the case are that the Asha Devi filed a suit for declaration that she is the owner in possession of land measuring 1Kanal 10 Marlas in Khasra No.89/1 and 89/2 out of the total land measuring 3 Kanals 9 Marlas in Khasra No.89. It was also claimed that she is owner in possession of Khasra No.94/2 measuring 0-15 Marlas. The case set up by the plaintiff was that she had purchased these two portions of land from one Sh.Vijay Singh, father of Kaushlya Devi, defendant No.4 on 13.1.1970 after paying him an amount of Rs.10,000/-. According to her, Vijay Singh had promised to execute a sale deed in her favour but he failed to do so. Vijay Singh expired on 22.12.1975 without executing the sale deed. It 3 was alleged that the plaintiff is owner in possession pursuant to the aforesaid sale and it was prayed that if it is found that she has not been able to prove her ownership on account of the sale, then she has become owner of the suit property by way of adverse possession. The suit was contested by Purshotam Chand, Bimla Devi and Kaushlya Devi, defendants No.1, 3 and 4 respectively. Defendant No.2 who is the son of defendant No.1 and Tarsem Singh, defendant No.5 were proceeded ex parte. The stand of the defendant No.1 in the amended written statement was that it was defendant No.1 and his son defendant No.2 who are the owners of Khasra No.89 and there is Abadi of the replying defendant which he has purchased from Sh.Vijay Singh vide agreement dated 9.4.1975 for a sum of Rs.12,000/- and, therefore, Vijay Singh was not the owner of Khasra No.89. In respect of Khasra No.94, it was admitted that Vijay Singh was the owner of a house and cattle shed situated on Khasra No.94. According to the defendant No.1, he had purchased the said property also vide agreement to sell dated 9.4.1975. It was also alleged that the land in Khasra No.89 was not owned by Vijay Singh but was owned by Kesar Singh etc. and, therefore, Vijay Singh had no right to sell the land. A 4 number of issues have been framed by the learned Trial Court but for the purpose of this appeal, we are only concerned with Issue Nos.1 and 2 which read as follows:- “1. Whether the plaintiff is owner in possession of the suit property, as alleged? 2. If issue No.1 is not proved, whether the plaintiff has become owner of suit property by way of adverse possession, as alleged?” The learned Trial Court decided both these issues in favour of the plaintiff and decreed the suit in her favour. Defendant No.1 Purshotam Chand and his son Subhash Chand, defendant No.2 filed this appeal and one of the main grounds urged was that both the issues could not have been decided in favour of the plaintiff. Once the plaintiff was held to be owner of possession of the suit property then she could also not become owner of the suit property by way of adverse possession. It would be pertinent to mention here that the plaintiff totally failed to prove the valid transfer of the property in her favour. Even as per her statement, Vijay Singh had orally agreed to transfer the property in her favour and she had paid Rs.10,000/- to Sh.Vijay Singh and had taken possession of the land. Sh.Vijay Singh died only in the year 1975. Admittedly the plaintiff had not filed any suit for specific performance of the contract within three 5 years of the agreement albeit an oral agreement. In the Jamabandi for the year 1972-73 Exb.P/3 Vijay Singh son of Sh.Dila was shown as Gair Mouresi tenant on the land in question. Therefore, Sh.Vijay Singh on coming into force of the H.P Tenancy and Land Reforms Act could have become owner of the land in question. The stand of the defendant that Vijay Singh was not the owner of the land in Khasra No.89 is belied by his own stand that he had purchased the land forming part of Khasra No.89 from Vijay Singh. Once the defendants-appellants themselves claim to drive their ownership in Khasra No.89 from Vijay Singh, it does not lie in their mouth to deny the ownership of Vijay Singh qua this land. It would also be pertinent to mention that though Smt.Asha Devi did not prove her ownership on the suit land, the appellant No.1 while appearing in the witness box as DW/1 admitted that Asha Devi was already in possession of one house, cowshed and land for tethering the cattle over part of Khasra No.89. The learned Lower Appellate Court held that the learned Trial Court had erred in holding that the plaintiff had become owner of 1 Kanal 10 Marlas of land. The learned Lower Appellate Court rightly held that the 6 plaintiff had failed to prove the oral sale qua 10 Marlas cultivable land out of the Khasra No.89 in her favour by Vijay Singh in the year 1970. Even the witnesses examined by her, i.e., PW/3, PW/4. PW/5 and PW/6 have only stated about the transfer of one house and cow-shed to the plaintiff. PW/6 is a nephew of Vijay Singh and he has only stated that some land adjoining to the house was given. The extent of land is also not stated by him. Learned counsel for the appellant is right to the extent that the plaintiff herself did not prove her ownership even qua the house and cow-shed and the land for tethering the cattle. However, the fact remains that the defendant while appearing in the witness box admitted that Asha Devi had purchased the house and cow-shed from Vijay Singh. It is on this admission of the defendant that the suit has been decreed qua Khasra No.89 to this extent by the learned Lower Appellate Court. The appellant cannot be permitted to go out of this admission. As far as Khasra No.94 is concerned, this is Abadi land and the appellants cannot claim ownership over the same. They have not disputed the possession of the plaintiff over Khasra No.94. 7 I am of the considered view that none of the substantial questions of law which have been framed are questions of law much less substantial questions of law. The findings given by Court below are totally findings of fact and call for no interference. The appeal is totally without merit and is accordingly rejected. August 20, 2009 ( Deepak Gupta ) (m) Judge