IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 325 of 2004. Decided on: 05.07.2011. ______________________________________________ Anjana Kumari and another. … Appellants. Versus Bimlesh Sharma. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants : Mr. Sanjay Dutt Vasudeva, Advocate. For the Respondent : Mr. Hemant Vaid, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.50-P/XIII/2003, dated 17.4.2004. 2. Material facts necessary for adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as”the plaintiff” for convenience sake) instituted a suit for permanent prohibitory injunction and in the alternative for 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - possession against the appellants/defendants (hereinafter referred to as “the defendants” for convenience sake). 3. According to the plaintiff, the suit land was recorded under the ownership and possession of Mandir Shri Radha Krishan Averi through Mohtmin, Durga Prashad. He died few years back and after his death, the plaintiff was in possession of the suit land and conducting and maintaining the affairs of the temple. Defendants have no right, title or interest in the suit land. They have started causing interference in the suit land in order to grab the same and they have started laying pucca plinth on 12.5.1994. 4. Written statement was filed by the defendants. According to the defendants, the plaintiff was living in Bombay with her husband and seldom comes to Palampur. The plaintiff could not inherit the suit land being the daughter of the Manager of the temple. The suit land was shamlat which was previously owned and possessed by the forefathers of the defendants. 5. Replication was filed by the plaintiff. The learned trial Court framed the issues on 3.7.1995. The trial Court decreed the suit on 3.4.2003 in favour of Mandir Shri Radha Krishan through plaintiff whereby Mandir was held entitled to the decree of vacant possession of suit land comprised in khata No.239 min, khatauni No.836, Khasra No.309, land measuring 0-05-20 Hectares after demolishing the construction raised on the suit land. Thereafter the defendants preferred an appeal before the learned District - 3 - Judge, Kangra at Dharamshala. He dismissed the appeal on 17.4.2004. Hence, this regular second appeal. 5. Mr. Sanjay Dutt Vasudeva, learned counsel for the defendants has strenuously argued that both the Courts below have misconstrued the oral and documentary evidence led by the parties. According to him, the suit was not maintainable by the plaintiff in the capacity of Manager. He also argued that the defendants were in possession of the suit land by way of adverse possession. 6. Mr. Hemant Vaid, learned counsel for the plaintiff has supported the judgments and decrees of both the courts below. 7. I have heard learned counsel for the parties and gone through the pleadings carefully. 8. Saran Dass has appeared as PW-1. He was the special power of attorney of Bimlesh Sharma, as per Annexure P-1. According to PW-2, Dharam Chand, the house was constructed by the defendants on the suit land in the year 1994 despite the stay order by the Court. PW-3, Sanjit Kumar has taken the photographs of the spot at that time at the behest of plaintiff. PW-4, Kushal Chand has supported the case of the plaintiff by stating that the defendants have forcibly raised construction in the suit land in the month of May, 1994. 9. Defendant, Anjana Kumari has appeared as DW-1. She has not disclosed when the disputed construction was raised - 4 - on the suit land. In cross-examination, she deposed that the house in question was constructed 14-15 years back. Defendant has not led any tangible evidence to prove when the construction was raised. The defendant has tendered in evidence the copy of jamabandi, Ex.D-2. The same is not linked with the suit land. According to the photographs Ex.PW-3/A to Ex.PW-3/D produced and proved on record by PW-3, Sanjit Kumar, it is evident that the construction has been raised by the defendants after the institution of the suit. Plaintiff has led overwhelming evidence that the disputed construction was raised in the month of May, 1994. 10. Now the Court will advert to the submission made by Mr. Sajnay Dutt Vasudeva, learned counsel for the defendants on the plea of adverse possession. 11. The plea of adverse possession has been taken by the defendants in the alternative. The defendants have not pleaded from which date their title became adverse. It is settled law that in order to prove the plea of adverse possession, it is to be pleaded and proved. There has to be commencement period when the possession became adverse. Thereafter the party has to prove that it was uninterrupted, peaceful and hostile to the knowledge of the true owner. Thus, the findings recorded by both the Courts below that the defendants have failed to prove their title by way of adverse possession are affirmed. - 5 - 12. The father of plaintiff, Smt. Bimlesh Sharma was the Manager of the temple in question. In the certified copy of jamabandi for the year 1992-93, she has been recorded as Mohtmin of the Mandir after the death of Durga Parshad. The nature of the land has been recorded as Banjar Kadeem. In the column of ownership, there is entry “Sharmlaat Deh Hasab Rasad Malguzari”. 13. The present suit was filed by the plaintiff in the capacity of Manager and not in her personal capacity. The defendants have failed to prove that the present suit was filed by plaintiff in the capacity of owner by leading any oral or documentary evidence. In view of this, the suit filed by the plaintiff in the capacity of the Manager of the Mandir was competent. 14. Accordingly, in view of the observations and discussions made hereinabove, there is no substantial question of law involved in this regular second appeal. Consequently, this appeal fails and the same is dismissed. The interim stay granted vide order dated 18.4.2005 is vacated. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. July 05, 2011. (sck).