IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 422 of 1999 Date of Decision : August 09, 2010 Sh. Bhagat Ram Appellant Versus Collector, Mandi District at Mandi, H.P. and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. G. D. Verma, Senior Advocate with Mr. B. C. Verma, Advocate, for the appellant. For the respondents : Mr. Ram Murti Bisht, Deputy Advocate General for respondents No. 1 and 2. Mr. Dharamvir Sharma, Advocate, for respondent No. 3. Sanjay Karol, J. (Oral) This appeal arising out of the concurrent findings of facts was admitted on the following substantial questions of law:- “3. Whether the possession of the Appellant over the suit land has matured into lawful owner? 4. Whether the allotment of land by way of nautor grant in favour of Defendant No. 3 is illegal and void, because, the land in possession of Appellant could not be granted? Whether reports of Local Papers may be allowed to see the judgment? 2 5. Whether the orders of ejectment passed against the Appellant are illegal and void having been passed without following due procedure and contrary to principle of natural justice? 6. Whether the ground of Appeal as preferred and pressed before the lower Appellate court have been ignored which resulted in injustice to the Appellant?” 2. The appellant is the plaintiff and the respondents are the defendants. 3. As per the pleaded case of the plaintiff he is in possession of part of khasra No. 1030/702 to the extent of one bigha, khasra No. 1032/702 to the extent of 0-7-3 bighas, khasra No. 717/1 measuring 0-17-1 bighas and khasra No. 718 measuring 1-1-1 bighas, total land measuring 3-5-5 bighas situate in Mauja Nauna, Hadbast No. 621, Illaqua Bagi-Thach, sub-Tehsil Bali-Chowki, District Mandi, H.P. Plaintiff is stated to have perfected his title over the said land by way of adverse possession. As per the plaint plaintiff is in possession of this land for more than 35 years. Plaint refers to the fact that out of this land respondents/State made allotment of land by way of a grant. One bigha out of part of khasra No. 1030/702 stood allotted to private respondent No. 3 who tried to forcibly take possession of the land from the plaintiff. Plaintiff prayed for the following relief:- “The plaintiff, therefore, submits that while considering the evidence on file and the prima facie case in favour of the plaintiff the same may kindly be 3 declared and the defendants be restrained for ever to interfere with the peaceful, hostile and never interrupted possession of the suit land and the possessory rights of the plaintiff thereupon by way of adverse possession so established in favour of the plaintiff and/or any other relief to which the plaintiff is entitled to may also be granted alongwith costs of the suit in favour of the plaintiff and against the defendants and justice be done for which the plaintiff shall every pray.” 4. The plaintiff’s claim for possession and title with regard to the entire suit land is disputed by the defendants by way of separate written statements filed by them. Allotment of a grant to private respondent No. 3 is admitted. He claims to be in possession of the same. The respondents/State has further pleaded that in the ejectment proceedings initiated by the State under the provisions of Section 163 of the H.P. Land Revenue Act, 1954 (herein after referred to as the Act) with respect to 2-5-5 bighas out of the suit land orders for ejectment already stand passed by the appropriate authority on 31.8.1999. 5. Based on the pleadings of the parties the trial Court struck the following issues:- “1. Whether the suit land is in possession of the plaintiff as alleged as the plaintiff has become owner by way of adverse possession? OPP 2. Whether the plants standing over the suit land have been planted by the plaintiff? If so, its effect? OPP 4 3. Whether the plaintiff took possession unauthorisedly and the ejectment orders were passed in accordance with law? If so, its effect? OPD 4. Whether the allotment made in favour of the defendant No. 3 at the back of the plaintiff is wrong? If so, its effect? OPD-3 5. Whether possession of the part of suit land is with the defendant No. 3 as alleged? If so, its effect? OPD-3 6. Whether the plaintiff has got no locus standi to file the suit, as alleged? OPD 7. Whether the suit is not maintainable for want of compliance with the Section 80 of the Code of Civil Procedure? OPD 8. Whether this court has got no jurisdiction to entertain the suit, as alleged? OPD 9. Relief.” 6. Vide judgment and decree dated 7.6.1994 Sub Judge, Ist Class (I), Mandi, H.P. dismissed the plaintiff’s Civil Suit No. 71 of 1990, titled as Bhagat Ram versus Collector, Mandi District, Mandi, and others holding that plaintiff failed to prove his possession on the entire land. The Court found defendant No. 3 to be in possession of the land allotted to him. Further plaintiff had not perfected his title by way of adverse possession with respect to the land in his possession and ejectment proceedings for the same stood initiated. 5 7. Aggrieved of the same, plaintiff filed Civil Appeal No. 41 of 1994, titled as Bhagat Ram versus Collector, Mandi District, Mandi, H.P. and others before the learned Additional District Judge, Mandi, H.P. Vide judgment and decree dated 19.8.1999 the lower appellate Court while dismissing the appeal upheld the findings of facts recorded by the trial Court. 8. Mr. G. D. Verma, learned Senior Counsel for the plaintiff has urged as under:- (i) Since plaintiff was in possession of the entire suit land no grant could have been made in favour of defendant No. 3. (ii) After allotment of land to defendant No. 3 no proceedings for ejectment under the provisions of Section 163 of the Act, could have been initiated for the reason that the State ceased to be the owner of the land. (iii) In any event plaintiff could not be dispossessed except in accordance with law. 9. In response thereto Mr. Ram Murti Bisht, learned Deputy Advocate General for respondents No. 1 and 2 and Sh. Dharamvir Sharma, learned counsel for respondent No. 3 have supported the impugned judgment and decree for the reasons stated therein. 10. The contentions raised by the learned Senior Counsel for the plaintiff needs to be rejected for the reason that they are misconceived in fact and in law. The submission is made on the assumption that the entire suit land stood allotted to defendant No. 6 3. It is not so. Out of the entire suit land only one bigha (approx) of land stood allotted to defendant No. 3. With regard to the remaining suit land (2-5-5 bighas) proceedings for ejectment under the provisions of Section 163 of the Act were initiated by the State against the plaintiff in which orders for ejectment already stand passed. It is not disputed that allotment in favour of private respondent No. 3 was made in the year 1982 and the proceedings for ejectment against the plaintiff were initiated by the State in the year 1990. Most importantly the said orders are not subject matter of challenge in the present proceedings. Further plaintiff has also not assailed the allotment of the land made by the State to private respondent No. 3. Hence the submissions need to be rejected. 11. In the absence of any specific pleading or proof thereof substantial questions of law No. 4 and 5 do not arise for consideration at all. 12. Now on the question of adverse possession the order of ejectment already stands passed by the appropriate authority. There is no challenge to the said order. Thus civil court could not have gone into the question of adverse possession particularly when the plaintiff had not made any such claim before the appropriate authority in the proceedings for ejectment. Nothing has been placed on record to show to the contrary. 13. Be that as it may be, even in the present proceedings plaintiff has failed to plead and prove material facts in support of his claim of adverse possession. It is merely pleaded that the plaintiff is in 7 possession for the last 35 years. The suit was filed in the year 1990. Except for a single document (Ext. PW3/A) which also pertains to the years 1989-90 (prepared in the year 1990) there is no other documentary evidence to show the plaintiff’s possession on the entire suit land. Even from the oral testimony of the plaintiff’s witnesses namely Sh. Bhagat Ram (PW-1), Sh. Devi Ram (PW-2), Sh. Dhani Ram (PW-2A), Sh. Nota Ram (PW-3) details as to when the plaintiff’s possession became hostile to the knowledge of the true owner are missing. The Courts below in detail have appreciated the oral testimonies while arriving at its concurrent findings. It is a settled position of law that the plaintiff has to plead and prove its possession hostile to that of the true owner. In the present case there is none. 14. It cannot be said that the Courts below have failed to ignore the material or that the findings have resulted into gross injustice to the appellant. 15. For the aforesaid reasons the present appeal stands dismissed. (Sanjay Karol), Judge. August 09, 2010 (PK)