IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 502 of 2008 Date of Decision : November 17, 2011 Savitri Devi …Appellant Versus: Moti Ram (since deceased) through his LRs Ram Krishan & Ors. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting? No For the appellant: Ms. Anu Tuli Azta, Advocate For the respondents : Ms. Aruna Chauhan, Advocate Sanjay Karol, J. (Oral) This is the defendants’ Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908. 2. Plaintiff Moti Ram (respondent herein, now represented through his legal heirs) filed a suit for possession against the defendant (appellant herein), with respect to the suit land on the basis of his title, which was opposed, inter alia on the ground that the same was willed to her by the original owner Sh. Bhagat Ram who also delivered possession thereof to her. Thereafter she planted apple trees on the same. Significantly she took a contradictory plea of adverse possession, as her possession over the suit land continued to be hostile and continuous to the knowledge of the true owner. 3. Based on the pleadings of the parties, trial Court framed the following issues:- - 2 - 1. Whether the plaintiff is entitled for the relief of possession as prayed? ……OPP 2. Whether the plaintiff is entitled for the relief of mandatory injunction? …OPP 3. Whether the defendant became the owner of the suit land by way of adverse possession? ..OPD 4. Whether the plaintiff is estopped to file the suit due to his own acts, conduct and acquiesces? …OPD 5. Relief.” 4. In terms of judgment and decree dated 25.8.2001 passed in Civil Suit No. 51-1 of 1996, learned Sub Judge Ist Class, Theog, Distt. Shimla, decided issues No.1 & 2 against the plaintiff and issues No.3 & 4 against the defendant. 5. Aggrieved thereof, plaintiff filed an appeal which was registered as Civil Appeal No.41-S/13 of 04-01, in which judgment and decree passed by the trial Court was reversed vide judgment and decree dated 30.8.2005 passed by the Additional District Judge, Fast Track Court, Shimla, in Civil Appeal No.41-S/13 of 04-01. The same is subject-matter of present appeal. 6. Having heard learned counsel for the parties as also perused the record, I am of the considered view that the lower Appellate Court has rightly decreed the plaintiff’s suit to the following effect:- “12. As a result of finding aforesaid, appeal merits acceptance and it is accepted. The judgment and decree passed by the ld. trial court are set aside and - 3 - suit of the plaintiff is decreed for possession qua khasra No. 496/171/1 measuring 16 biswas situated in chak Bagha-Sandho, Tehsil Theog, District Shimla. A decree sheet be prepared. No orders as to costs.” 7. Defendant, in the written statement categorically admitted herself to be in possession of portion of the suit land to the extent of 16 biswas comprising Khasra No. 496/171/1. There is no dispute with regard to identification of the same. Courts below have held that this parcel of land is in the ownership of the plaintiff. Defendant’s plea of adverse possession was rejected by the trial Court. Said findings were not challenged by her before the lower Appellate Court. That apart, having taken a plea of adverse possession, it was incumbent upon her to have proved, in accordance with law, the fact that her possession thereupon was continuous, uninterrupted and hostile to the notice of the plaintiff/original owner. This has not been properly pleaded or proved by her. In fact no evidence in this regard worth considers is on record. Plaintiff established her title through oral and documentary evidence. By taking a plea of adverse possession, it also could not be disputed. It was incumbent upon the defendant to have pleaded, proved and established her plea of adverse possession which has not been so done in the instant case. Impugned judgment and decree rendered by the lower Appellate Court cannot be said to be erroneous or perverse in any manner. Hence in my considered - 4 - view, no question of law, much less substantial question of law arises for consideration in the present appeal. The appeal being devoid of merit is thus dismissed. ( Sanjay Karol ), Judge. November 17, 2011 (rana)