IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.509 of 2000 & CO No.140 of 2001 Date of decision : May 20, 2010 Chhemit Dorje …Appellant. Versus Ram Padam and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Bhupinder Gupta, Senior Advocate, with Mr. Janesh Gupta. For the Respondents : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate. Surjit Singh, J (Oral) This appeal by the plaintiff-appellant is directed against the judgment and decree dated 11th September, 2000 of learned District Judge, whereby partly accepting the appeal of defendants-respondents against the judgment and decree dated 11th July, 1999 of the trial Court, decree to the extent it declared the plaintiff-appellant as owner in possession of the suit land, bearing Khasra No.592, measuring 619 metres, situate in Radule, Tehsil Kalpa, District Kinnaur, has been set aside, though decree of permanent prohibitory injunction restraining the defendants-respondents from interfering in the possession of the plaintiff-appellant, has been upheld. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Facts relevant for the disposal of the appeal may be noticed. Plaintiff and defendants Ram Padam and Ram Sain alongwith some other persons were joint owners of land bearing Khasra No.463 (old) and some other land. Area of Khasra No.463 was 2 bighas 3 biswas. Co-sharers were in separate possession of separate numbers. Plaintiff became a co-owner with the defendants by purchasing the share of one Pal Sukh. Said Pal Sukh was in possession of the entire area of Khasra No.463. When sale was made in favour of the plaintiff by said Pal Sukh in the year 1970, he delivered possession of Khasra No.463 to the plaintiff. 3. One of the co-sharers, namely Mir Sukh, filed a case for partition of the joint Khata before the concerned Revenue Officer. His application was allowed. Instrument of partition was prepared. In terms of that instrument of partition, plaintiff was allotted only 12 biswas area, out of 2 bighas 3 biswas area, comprised in Khasra No.463 and to make up for the shortage in area falling to his share, land from other Khasra numbers was allotted. Mutation of partition was attested on 28th February, 1979. Separate Khataunis were prepared and as per that mutation order, parties came in possession of the area allotted to them. Thereafter, settlement took place in the revenue estate. Though it is not clear from the record as to when that settlement had taken place, but this much is made out that it took place prior to 1987, because in Khasra Girdawari for …3… the period from 1987 to 1997, suit land is being shown by new Khasra number, i.e. 592, instead of old Khasra No.463. Misl Hakiat prepared during settlement, copy Ex. P/1, recorded the plaintiff to be in possession of the suit land, i.e. Khasra No.592, which was allotted to the defendants- respondents in the partition. This entry appears in the subsequent Khasra Girdawaris also. 4. In the year 1997, plaintiff-appellant filed a suit seeking a declaration that he was owner in possession of Khasra No.592, which had been allotted to the defendants in the partition and that his possession has been since 1970, when he purchased old Khasra No.463 from proforma-defendants Pal Sukh. 5. Defendants contested the suit. They denied that the possession was with the plaintiff. They claimed that they were in possession and it had been delivered to them when mutation was attested in the year 1979. They pleaded that entries in the Misl Hakiat as also in the Khasra Girdawari showing the plaintiff in possession were contrary to the factual position and appeared to have been manipulated by the plaintiff in connivance with the revenue officers. 6. Trial Court, at the end of the trial, came to the conclusion that though the suit land had been allotted to the defendants in the partition, its possession continued with the plaintiff and that he being in continuous possession …4… since 1970, had become its owner. Consequently, suit was decreed in its entirety, i.e. the plaintiff was declared owner of the suit land and he was also held to be in possession and a decree of permanent prohibitory injunction was granted. 7. Defendants went in appeal to the District Judge, who partly accepted the appeal and concluded that the plaintiff was not the owner but was only in possession and his possession could not be disturbed by the defendants, without following due process of law. 8. Plaintiff is aggrieved by the reversal of declaratory decree by the District Judge. So, he has come in appeal. 9. Appeal was admitted on the following substantial question of law: “What is the effect of failure of the defendants-respondents No.1 and 2 to take possession of their share within twelve years of the alleged order of partition?” 10. Defendants-respondents have filed Cross Objections. These Cross Objections were also admitted, but without framing any substantial question of law. On the basis of the submissions made by the learned counsel for the defendants-respondents as also the grounds of appeal, following substantial question of law is framed in the Cross Objections: Whether the learned District Judge has misconstrued the evidence on record, especially …5… the revenue entries, in coming to the conclusion that the possession of the suit land is with the plaintiff-appellant? 11. I have heard the learned counsel for the parties and gone through the record. 12. As regards substantial question of law formulated in the appeal, suffice it to say that the plaintiff never claimed that he had acquired title by prescription. Admittedly, a partition had taken place. An instrument of partition was also prepared. As per that instrument of partition, suit land fell to the share of the defendants. Instrument of partition is like a title deed, atleast as amongst the co-sharers. Therefore, the title of the suit land vests with the defendants. No fault can be found with the conclusion of the learned District Judge that the plaintiff was not the owner of the suit land. 13. Coming to the substantial question of law framed today in the Cross Objections, there is a copy of Misl Hakiat Ex. P-1, in which possession is recorded with the plaintiff. Misl Hakiat is the original record prepared during settlement. There is a set procedure for preparing the record. Presumption is that the procedure was followed in this case also. It is part of the procedure that all the estate holders are apprised of the date, time and place of preparation of draft record. Entries are made after hearing all the concerned persons. Objections, if any, raised are considered and dealt with. This procedure is supposed to …6… have been followed in this case also and only thereafter the entry, indicating the plaintiff in possession of the suit land, made. This entry was made long back and in any case prior to 1987, because in the Khasra Girdawaris from the year 1987-88, the suit land is described by new Khasra No.592, which means that settlement had taken place before that. Plaintiff being in settled possession for quite some time at the time of institution of the suit, defendants cannot throw him out, otherwise than by following due process of law. Substantial question of law is answered accordingly. In view of the above discussion, findings and answers to the substantial questions of law, both the appeal and the Cross Objections are dismissed. May 20, 2010(sd) ( Surjit Singh ), J