IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 234/2005 Reserved on:22.7.2008 Decided on:26.9.2008 Rukmani Rathor and others. …Appellants. Versus The State of Himachal Pradesh. …Respondent 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 Respondent: Mr. Rajinder Dogra, Additional Advocate General. Rajiv Sharma, J. The present Regular Second Appeal is directed against the judgment and decree dated 30.11.2004 passed by the learned Additional District Judge, Fast Track Court, Shimla in civil appeal No. 65-S/13 of 2004/99. The brief facts necessary for the adjudication of this appeal are that the predecessor-in-interest of the present appellants had filed a civil suit No. 329/1 of 95/91 in the Court of Sub Judge (II), Shimla for declaration and consequential relief. Sh. Durga Dass died during the pendency of the civil suit and the present appellants were brought on record and 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 henceforth they are being addressed as ‘the plaintiffs’. The suit was contested by the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake). The trial court on the basis of the oral as well as documentary evidence dismissed the suit on 30.6.1999. The plaintiffs feeling dissatisfied by the judgment and decree preferred an appeal before the learned Additional District Judge (Fast Track Court). The learned Additional District Judge (Fast Track Court) dismissed the appeal on 30.11.2004. The Regular Second Appeal was admitted on the following substantial question of law: 1. “Whether the learned trial court and first appellate court erred in law in holding that the adverse possession of the appellants is not proved over the land subject matter of dispute.” Mr. Bhupender Gupta, Senior Advocate has strenuously argued that judgments and decrees passed by both the courts below are unsustainable. He further contended that the learned courts below have not correctly appreciated the oral as well as the documentary evidence. He lastly contended that the plaintiffs have proved their adverse possession on the suit land. Mr. Rajinder Dogra, Additional Advocate General has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. PW-2 Durga Singh has testified that Sh. Devi Dass was his father having 114.6 bighas of land at Dhalli in his possession from the time of his forefathers. In the year 1949-50 settlement took place and the plaintiff was shown in possession over the land measuring 74.12 bighas whereas it was 114.6 bighas. His father paid compensation and the patta was issued in his favour i.e. Ex.PW-2/B. The mutation Ex.PW-2/C was attested on 3 the basis of patta. He further deposed that the area measuring 39.14 bighas which is the suit land, the plaintiff considered it as a part of khasra No. 23 and 27 and in possession of it as owner. According to him, the defendant started ejectment proceedings in respect of land measuring 17.7 bighas. He called the Patwari. The Patwari prepared the tatima Ex.PW-2/D and after demarcation this area was found to be 39.14 bighas. Thereafter he filed a suit before the learned Senior Sub Judge, Mahasu and the suit was decided in his favour vide judgment Ex.PW-2/F. The mutation was attested in favour of the plaintiff on the basis of judgment dated 4th May, 1968. The plaintiff had raised orchard and constructed a house over the suit land. Neither the Patwari nor Kanungo had objected during khasra girdawari about the possession of the plaintiff. He has admitted that ejectment proceedings were initiated in the year 1959-60 and the matter came up to this Court. PW-3 Uma Dutt has testified that he has prepared the tatima Ex.PW-2/D and found Durga Singh in possession of the land on the spot. PW-4 Basu Dev has testified that he knew the father of the plaintiff and he has seen the suit land, which is measuring 39.14 bighas comprising khasra No. 51/22. He has further deposed that the plaintiff was in possession of the suit land for the last 45 years. The plaintiff has constructed a house and raised an orchard over the suit land. PW-5 Meena Vaidya has deposed that she has brought the requisitioned record. PW-6 Balak Ram has deposed that he knew the plaintiff and has seen the suit land. He has further stated that the possession of the plaintiff over the suit land is 45 years old. PW-7 Suresh Chandel has deposed that he could not bring the requisitioned record. PW-8 V.K. Sharma has deposed about the age of the plants. PW-9 Shiv Datt has deposed that he has brought the record from Municipal Corporation, Shimla. He has proved Ex.PW-9/A copy of tax receipt. 4 The defendant has produced and examined two witnesses. DW-1 Kahan Chand has deposed that he was posted as a Patwari in Mashobra Beat and has brought the requisitioned record pertaining to Khasra No. 22. According to him, as per record for the year 1950, the Government was owner of the suit land regarding which jamabandis are Ex.DW-1/A for the year 1956-57, Ex.DW-1/B for the year 1964-65, Ex.DW-1/C for the year 1969-70, Ex.DW-1/D for the year 1974-75. DW-2 Narain Singh has deposed that he has brought the mutation No. 19 i.e. Ex.D-1. The patta was issued in favour of the plaintiff vide Ex.PW-2/B on 12.11.1957. The patta was with respect to the land comprising khasra No. 23 and 27. The proceedings under the Himachal Pradesh Land Revenue Act, 1953 were initiated against the plaintiff and the order of the ejectment was made by the Collector on 16.2.1962. The order of ejectment was assailed by way of appeal before the Financial Commissioner but the same was dismissed on 7.6.1962. The predecessor-in-interest of the present plaintiffs filed a suit No. 21/1 of 1965 in the Court of Senior Sub Judge of the-then Mahasu District. It was decreed on 4.5.1968 in terms of the statement made by the deceased and learned Government Advocate appearing on behalf of the State. On the basis of that compromise decree, mutation was sanctioned on 28.8.1970 whereby area of 22.7 was also mutated in favour of the deceased in addition to the area measuring 17.7 bighas in respect of which the ejectment order was passed against him. The defendant- State had filed a civil suit No. 10 of 1971 in this Court. The judgment and decree of the learned Senior Sub Judge, Mahasu dated 4.5.1968 was declared to be nullity by this Court and the Regular First Appeal which was filed before a Division Bench of this Court against the judgment and decree of the learned Single Judge was dismissed on 28.1.1989. It appears from the record that during the pendency of the civil suit No. 5 10/71 fresh ejectment proceedings were again initiated against the plaintiffs in respect of the land, which was encroached upon by him in khasra No. 22 and the ejectment order was passed on 31.3.1984. The appeal was preferred against this order and the same was dismissed by the Sub Divisional Collector on 18.9.1984. Ex.DW-1/A is the copy of Jamabandi Missal Haquiat Bandobas in which khasra No.22 has been shown to be in the ownership of the State and in possession of the Forest Department. Similar entry exists in Ex.DW-1/C copy of jamabandi for the year 1956-57. These entries are further reflected in the copy of jamabandi for the year 1975-76. It was only in the jamabandi for the year 1974-75 Ex.DW-1/E in which khasra No. 51/22 i.e. suit land measuring 39.14 had been shown to be owned and possessed by the deceased. Ex.PW-2/K is the copy of mutation No. 19 attested on the basis of the judgment and decree dated 4.5.1968 of the learned Senior Sub Judge, Mahasu passed in case No. 21/1 of 1965. Since the judgment and decree passed by the learned Senior Sub Judge, Mahasu dated 4.5.1968 was declared to be nullity by this Court in Civil Suit No. 10 of 1971 and the Regular First Appeal preferred by the plaintiffs was also dismissed on 28.1.1989, the revenue entries made in the jamabandi for the year 1984-85 cannot be relied upon. It is evident from the oral as well as documentary evidence brought on record that the possession of the deceased was not adverse qua true owner. The encroachment proceedings were initiated against deceased Durga Singh in the year 1958. The ejectment order was passed and the appeal preferred by the deceased was dismissed. The civil suit filed by the deceased was though decreed on 4.5.1968, however, the same was declared to be nullity by this Court. The mutation attested on the basis of the compromise dated 4.5.1968 and the revenue entries, which have 6 come into existence, were nullity. The status of the deceased always remained of an encroacher. The State had been taking necessary steps for ejecting him from the suit land since 1958 till 1984 when the appeal preferred by the plaintiffs against the order of ejectment was dismissed by the learned Sub Divisional Collector. The possession simpliciter howsoever long it may be, would not be sufficient in law to perfect the title by prescription unless it is established that the possession was hostile to the knowledge of the true owner. The raising of orchard and constructing a house on the suit land cannot make the act hostile to the true owner. It was for the plaintiffs to establish conclusively on which date their adverse possession commenced against the true owner. The plaintiffs have failed to point out this date. The date of cause of action has been mentioned in the year 1989, however, as noticed above, it is clear that from 1958 onwards, the possession of the plaintiff was never open, peaceful and uninterrupted. The plaintiffs have failed to prove when their adverse possession commenced and when the statutory period was complete. The plaintiffs have further failed to prove the basic ingredients of adverse possession qua the true owner. In view of the aforesaid reasoning, there is no merit in this appeal and the same is dismissed. There shall be no order as to costs. 26.9. 2008 (Rajiv Sharma ), J. *awasthi*