IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 475 of 2000. Judgement reserved on: 7.4.2010. Date of decision: 20.5.2010. Ram Parkash & ors. ….. Appellants. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. P.K. Sharma, Additional Advocate Geneal with Mrs. Subh Mahajan, Dy. Advocate General, for respondent No.1. Kuldip Singh, Judge. The judgement, decree dated 16.2.2000 passed by the learned Addl. District Judge, Solan camp at Nalagarh in Civil Appeal No. 38-NL/13 of 1998 affirming the judgement, decree dated 14.9.1998 passed by learned Sub Judge Ist Class, Nalagarh in Civil Suit No. 186/1 of 1993 have been assailed by the plaintiffs. 2. The facts in brief are that Ram Parkash, Ram Chand and Hari Chand had filed suit against the respondent on the grounds that they are residents and proprietors of village Khillian, Pargana Gularwala, Tehsil Nalagarh. The respondent had initiated eviction proceedings against Ram Parkash, Ram Chand and Ram Rakha Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… predecessor in interest of Hari Chand on the report of Patwari Halqa regarding land measuring 13 bighas 7 biswas comprised in Khewat/ Khatauni No. 215min/237, khasra No. 378, village Khillian vide jamabandi for the year 1989-90. Ram Parkash, Ram Chand and Ram Rakha had contested those proceedings and the same were dismissed on 23.6.1992. The possession of Ram Parkash, Ram Chand and Ram Rakha was held to be more than 30 years by way of adverse possession. It was alleged that Ram Parkash, Ram Chand and Hari Chand are joint owners in possession of the suit land to the extent of 1/3rd share. It was alleged that Ram Parkash, Ram Chand and Hari Chand are in possession of suit land through their predecessors since May 1930 and in any way from Ist May 1958. The respondent has no right, title and interest on the suit land in view of decision dated 23.6.1992, which has become final. 3. Patwari halqa and other revenue staff on 2.4.1993 had threatened Ram Parkash, Ram Chand and Hari Chand to dispossess them by causing interference on the suit land. Accordingly, notice dated 3.4.1993, under Section 80 CPC, was given to the Collector and thereafter the suit was filed. During the pendency of suit, Ram Chand plaintiff No. 2 had died and his legal representatives Jog Ram and Kashmiri Lal were brought on record. 4. The suit was contested by the respondents in which preliminary objections of lack of notice under Section 80 CPC, cause of action, locus-standi, jurisdiction of the court to try the suit, valuation, limitation, res judicata and non-joinder of necessary parties were taken. On merits, it has been submitted that the land in …3… question was previously Shamlat Deh and was owned by Nagar Panchayat. The appellants in connivance with field revenue staff succeeded to get their names entered in the column of cultivation and they are trying to take undue benefit of wrong revenue entries to grab the land of the State. The suit land had vested in the State on coming into force of H.P. Village Common Lands (Vesting and Utilization) Act, 1974 (for short, the Act). It has been alleged that order dated 23.6.1992 is based upon mis-representation of the appellants. The respondent denied the claim of the appellants. 5. The replication was filed in which stand taken in the plaint was reiterated. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP. 2. Whether the plaintiffs are entitled for the relief of permanent injunction, as alleged? OPP. 3. Whether the suit is barred by principles of res judicata? OPD. 4. Whether the court has no jurisdiction? OPD. 5. Whether the plaintiffs have no cause of action? OPD. 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so what is the correct valuation? OPD. 7. Relief. 6. The issues No. 1, 2, 4, 6 were answered in the negative, issues No. 3, 5 in affirmative and the suit was dismissed on 14.9.1998. The matter was carried in appeal and the learned Addl. District Judge on 16.2.2000 dismissed the appeal. The appellants have thus come in this court against the judgement, decree dated …4… 16.2.2000, which has been admitted on the following substantial questions of law:- 1. Whether the impugned judgement and decree is the result of non-consideration of the provisions of Section 3(5) of the H.P. Village Common Lands (Vesting and Utilization) Act and the rules framed thereunder. 2. Whether the impugned judgement and decree is the result of non-consideration of the judgement given by this Hon’ble Court in the present case which was produced on record as Ext. D3/A in CWP No. 271 of 1974. 3. Whether the learned lower appellate court being last Court of fact is right in not discussing the entire oral as well as documentary evidence before recording the findings. 4. Whether the impugned judgement and decree is the result of complete misreading, mis- interpretation as well as mis-appreciation of Exts. P2, D19 to D23. 5. Whether the courts below are right in recording the findings qua adverse possession without discussing the relevant evidence. 7. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that the two courts below have not considered Section 3(5) of the Act. The judgement dated 21.4.1978 in CWP No. 271 of 1974 of the High Court has not been considered. …5… The first appellate court is the last court of facts, who is bound to consider and discuss the oral and documentary evidence for recording findings. There is complete mis-reading, mis-interpretation of Ex. P-2, Ex. D-19 to Ex. D-23 together with oral and documentary evidence. The findings on adverse possession by the two courts below are not correct. The Additional Advocate General has supported the impugned judgement, decree. He has submitted that two courts below have rightly appreciated the material on record and no fault can be found with the findings recorded by the two courts below. 8. The appellants have filed the suit for declaration that they are owners in possession of the suit land. The learned trial court has recorded a finding that entries regarding the possession of appellants have appeared in the revenue record for the first time in the jamabandi for the year 1958-59. The appellants have not led evidence to prove their possession over the suit land since the year 1930. The oral evidence led by the appellants is not sufficient to rebut the presumption of truth attached to the revenue record. The suit land had vested in the State under the Act. The eviction proceedings were initiated against the appellants. The appellants had not completed statutory period of thirty years when the eviction proceedings were initiated against them. Ex. D-14 is the statements of Ram Rakha and Ram Chand both dated 16.2.1976 wherein both of them have stated that they have vacated the unauthorized possession of the land. They have opted not to appear in the witness …6… box and contradict Ex. D-14. The possession of Ram Parkash was not peaceful, it remained subject matter of the eviction proceedings. 9. The trial court had rejected the plea of adverse possession of appellants on the suit land. This finding has been affirmed by the lower appellate court. The sub-section (5) of Section 3 of the Act provides that Collector may, by order in writing, at any time after the land vested in State Government, direct the land owners to deliver possession thereof within ten days from the service of the order to such person as may be specified in the order. The sub-section (5) of Section 3 of the Act is of no help to the appellants inasmuch as the said sub-section applies to land owners. On the commencement of the Act, the appellants were not the land owners. The appellants have projected their case of adverse possession on the suit land and on the date of commencement of the Act they had not acquired title on the basis of adverse possession, therefore, substantial question of law No. 1 does not come to the rescue of the appellants and is accordingly decided against the appellants. 10. In Ex. D 3/A judgement dated 21.4.1978 in CWP No. 271 of 1974 and other matters, the High Court had directed the concerned Collector to inquire into the claims of the petitioners as regards vesting of their respective land provided they raise objection thereto. It was also directed that at the time of deciding these claims, the Collector shall bear in mind the observations made by the High Court in the judgement with regard to the categories of lands which fall within the definition of word “land” given in clause (f) of Section 3 of the Ceiling Act. There is nothing on record that Hari Chand had …7… filed objections before the Collector. Ram Parkash and Ram Chand had already quit the possession of the suit land as per Ex. D-14. In these circumstances, the Patwari made report dated 13.8.1980 Ex. D- 18 against illegal possession over 3 bighas 3 biswas of the suit land. Ram Parkash filed suit against the State in which Ram Chand and Ram Rakha were also impleaded as parties. This suit was withdrawn on 8.10.1982 with permission to file fresh on the same cause of action on the ground that during the pendency of the suit ejectment order was passed against Ram Parkash on 7.8.1981. But thereafter Ram Parkash did not file any suit nor challenged the ejectment order dated 7.8.1981 in any manner. The judgement dated 21.4.1978 Ex. D-3/A in CWP No. 271 of 1974 does not help the case of the appellants. In the judgement dated 21.4.1978 there is no finding that appellants are in adverse possession of the suit land. The substantial question of law No. 2 is decided against the appellants. 11. The substantial questions of law No. 3, 4 and 5 are taken up collectively as these are interconnected. The grievance of the appellants is that the lower appellate court being last court of fact has not properly discussed oral and documentary evidence on record. Ex. P 2, Ex. D 19 to Ex. D 23 have been misconstrued and mis- interpreted. Ex. P 2 is the jamabandi for the year 1958-59 regarding land measuring 13-7 bighas comprised in khasra No. 283, which has been shown in possession of Ram Parkash etc. and in the ownership of Shamlat Deh. Ex. D 19 is the application dated 10.8.1981 of Ram Parkash, which was submitted to Tehsildar, Nalagarh in response to …8… ejectment notice regarding land in dispute. It appears from Ex. D 19 that in response to notice dated 7.8.1991 Ram Parkash had earlier produced some stay order with respect to his ejectment and therefore, he prayed vide Ex. D 19 that warrant may not be issued. Ex. D 20 is the copy of order dated 5.8.1981 passed by learned Sub Judge Ist Class, Nalagarh on the application of Ram Parkash whereby the court has ordered status quo with respect to land measuring 13-7 bighas. Ex. D 21 is the copy of warrant of possession issued by Assistant Collector Ist Grade, Nalagarh against Ram Parkash. Ex. D 22 is the copy of order dated 7.8.1981 of Assistant Collector ejecting Ram Parkash from land measuring 13-7 bighas. Ex. D 23 is the copy of jamabandi for the year 1978-79 wherein the suit land has been shown in possession of Ram Parkash etc. and owned by the State. The documents Ex. P-2, Ex. D 19 to Ex. D 23 do not advance the case of appellants of adverse possession. 12. The case of the appellants is that they are in possession of suit land through their predecessors since May 1930. The first entry in favour of the appellants has come in jamabandi for the year 1958-59. It appears the revenue record after 1958-59 in favour of appellants is based upon the entry made in jamabandi for the year 1958-59 Ex. P 2. The appellants have not proved on what basis the entry came in their favour for the first time in jamabandi for the year 1958-59 Ex. P 2. The entry in Ex. P 2 in favour of appellants is not based upon an order of competent authority. 13. It has been held in Durga (deceased) and others vs. Milkhi Ram and others 1969 PLJ 105 that no presumption of truth is …9… attached to later revenue record unless the change is supported by some order of the competent authority. The appellants have not explained how in Ex. P 2 their names have come for the first time. In these circumstances, no presumption of truth is attached to jamabandi Ex. P 2. Ex. D 19 to Ex. D 23 do not support the case of the appellants of adverse possession on the suit land. The learned Additional District Judge has rightly appreciated the material on record. The learned Addl. District Judge has affirmed the judgement, decree of the trial court. The decree of affirmation cannot be put at the same pedestal as the decree of reversal which requires more detailed reasons in support of dis-agreement. The two courts below have rightly appreciated the material on record. The learned counsel for the appellants has relied on Ramji vs. State of H.P. and others 2008 (2) Shim. LC 60 on the ground that lower appellate court is required to critically examine the evidence. There is no dispute with the proposition of law laid down in the judgement, but on facts in the present case, the learned Addl. District Judge has appreciated the material on record. There is no perversity in the impugned judgement, decree. No case for interference is made out. The substantial questions of law No. 3 to 5 are decided against the appellants. 14. No other point was urged. 15. The result of the above discussion, the appeal fails and is accordingly dismissed. May 20, 2010. ( Kuldip Singh ) (Hem) Judge.