IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.271 of 1998 Decided on: November 19, 2008 Daya Ram ......Appellant. VERSUS Smt. Har Dei and another ......Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. K.D. Sood, Advocate. Surjit Singh, Judge (Oral) The present Regular Second Appeal was admitted on the following substantial questions of law, vide order dated 18th July, 1998: “1. Whether the impugned judgment and decree is the result of complete misreading, mis- interpretation as well as misappreciation of Memorandum Ext. PW5/A? 2. Whether the impugned judgment and decree is the result of misreading as well as mis- application of the provisions of Order 2 Rule 2 C.P.C.? 3. Whether the courts below are right in declining the claim of the plaintiff for adverse possession on the ground that it had failed to prove the ingredients of adverse possession especially when the Plaintiff has not only pleaded but proved those ingredients? 4. Whether the learned Lower Appellate Court is right in not discussing the oral evidence especially when it is a first Court of Fact and Whether the reporters of the local papers may be allowed to see the judgment? ...2... is bound under the law not only to look after it but also to give findings in support or against it? 2. Relevant facts may be noticed. Appellant-plaintiff filed a suit for declaration that he was owner in possession of Abadi measuring 7 biswas, forming part of Khasra No.159, shown by min number 159/1, situate in village Chadera, Pargana Sandurath, Tehsil Arki, District Solan, H.P., as he had acquired title by adverse possession. By way of further relief, he prayed for permanent prohibitory injunction, restraining the respondents-defendants from interfering in his possession, on the basis of wrong entry in the revenue papers, showing respondent No.1 Har Dei as joint owner, to the extent of half share. It was pleaded that late Shri Ram Dass was owner in possession of the aforesaid Abadi, which hereinafter shall be referred to as suit property, and that said Ram Dass, after borrowing a sum of Rs.730/- sometime in the year 1973, put him in possession of the suit property and thereafter Ram Dass died. He stated that since Ram Dass could not return the money borrowed by him, he (the plaintiff) remained in continuous possession ever since Ram Dass delivered the possession to him and that he had acquired title by prescription, as his possession was open, uninterrupted, hostile and as of right. 3. Suit was contested by the respondents. Respondent Har Dei pleaded that the suit property was jointly owned by her father and deceased Ram Dass, who were real brothers, and that on the death of her father, she inherited his ...3... half share and lateron sold that half share to the plaintiff- appellant. She further stated that after some time Ram Dass, who was issueless and had no heir other than her, also died and on his death she inherited his share also. She pleaded that appellant Daya Ram set up a forged Will before the revenue authorities and got Ram Dass’s half share mutated in his favour. She further pleaded that she challenged that Will by filing a Civil Suit in the Court of Sub Judge 1st Class, Kandaghat, Camp at Arki, which was decreed in her favour, vide judgment Ex. D-1, which was affirmed in appeal by the District Judge, vide decree Ex. D-2. It was also stated by her that thereafter plaintiff-appellant filed a suit for declaration that he was in lawful possession of the suit property, on account of his having paid a sum of Rs.730/- to Ram Dass and the latter having put him in possession thereof, as security, for the return of the aforesaid amount of money and thus the aforesaid amount of money was a charge on that property. She stated that in that suit prayer for permanent prohibitory injunction, restraining her and respondent No.2, from interfering in his possession was also made. That suit was also dismissed, vide judgment Ex. D-3. Various preliminary objections were also raised. Thereafter, the plaintiff-appellant filed the present suit claiming that his possession was adverse and it had perfected into title. 4. Trial Court framed the following issues on the pleadings of the parties: ...4... “1. Whether the plaintiff has become the owner in possession of the suit land and structure thereon, as alleged by way of adverse possession? OPP 2. Whether the suit is hit by Order 2 Rule 2 of the C.P.C.? OPD 3. Whether the suit is barred by principle of resjudicata, as alleged? OPD 4. Whether the alleged memorandum has already been declared null & void as alleged by the Ld. Sub Judge, Kandaghat Camp at Arki. If so, its effect? OPD 5. Whether the suit is not maintainable in the present form? OPD 5(a) Whether the defendants have forcibly taken the possession of the suit property during pendency of the suit, as alleged. If so, its effect? OPP 5(b) Whether the plaintiff has a cause of action? OPP 5(c) Whether the suit is time barred? OPD 5(d) Whether the plaintiff has locus-standi to sue? OPP 5(e) Whether the plaintiff has not come to the Court with clean hands. If so, its effect? OPD 5(f) Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD 6. Relief. 5. All the material issues were found against the plaintiff-appellant and consequently the suit was dismissed. Appeal carried by the plaintiff-appellant to the Court of District Judge was also dismissed. 6. I have heard the learned counsel for the appellant and gone through the record. ...5... 7. As regards the first substantial question of law, the Will Ex. PW-5/A was the subject matter of a suit filed by respondent No.3 Har Dei, in the year 1977. In that suit she had challenged the validity of the Will. Her plea was accepted and the Will was held to be not validly executed. Now, when validity of the Will had already been adjudicated upon in the earlier litigation and the question was decided in favour of respondent Har Dei, vide judgment Ex. D-1, which attained finality when the appeal filed against said judgment was dismissed, plaintiff-appellant cannot be heard to say that the two Courts below have misappreciated, misread or misinterpreted the Will Ex. PW-5/A. 8. So far as substantial question of law No.2 is concerned, the two Courts below have held that plea of the plaintiff-appellant that he had been in adverse possession since the year 1973, is barred, under Order 2 Rule 2 of the Code of Civil Procedure. Admittedly, there had been two rounds of litigation between the parties, prior to the institution of the Civil Suit, which has given rise to the present appeal. In both the previous cases, plaintiff-appellant had the opportunity to raise the plea of adverse possession, because he had been claiming himself to be the owner of the suit property. In one of the suits, which he filed after the earlier suit filed by respondent Har Devi was decreed, he even claimed the relief of permanent prohibitory injunction, on the basis of his alleged possession. In neither of the earlier two litigations, he set up the plea of adverse possession and, therefore, this plea of adverse ...6... possession was barred by the principle of constructive resjudicata, as enshrined in explanation IV to Section 11 of the Code of Civil Procedure, though provision of Order 2 Rule 2 of the Code of Civil Procedure was not attracted, as the Rule applies only in case of a relief, which could have been claimed but is not claimed in the earlier suit. So, this question is also answered against the plaintiff-appellant. 9. Substantial questions of law No.3 and 4 pertain to appreciation of evidence. Plaintiff-appellant filed a suit in the year 1987, prior to the filing of the present suit, in which he claimed his possession to be permissive, he having been put in possession of suit property by Ram Dass, the previous owner, as security for the return of the money allegedly borrowed by him from the plaintiff-appellant. That suit was dismissed in the year 1988. That means upto the year 1988, the plaintiff- appellant had been claiming himself to be in permissive possession. If that is so, how could he claim that he was in adverse possession in the year 1991, when the suit from which the present appeal has arisen was filed. So, these two substantial questions of law are also answered against the plaintiff-appellant. For the foregoing reasons, the appeal is dismissed. November 19, 2008(sd) ( Surjit Singh ), J.