IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 299 of 1995 Date of Decision : 18.9.2007 Joginder Singh & Others …Appellants. v. Dalip Chand and others …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. Surinder Verma, Advocate vice Mr. Subhash Sharma, Advocate. For the respondents. Mr. Baldev Singh, Advocate. Sanjay Karol, J (Oral). Even though the appeal was admitted on the following substantial questions of law:- “ 1) Whether the learned lower Appellate Court has misread and misinterpreted the evidence on record, particularly Ext.D1? 2) Whether the ingredients of adverse possession have been wrongly applied by the learned lower Appellate Court in the facts and circumstances of the instant case? 3) Whether the purchase of a share in the suit land by the respondent/plaintiff entitled him to claim the ownership of the entire suit land? 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 4) Whether the learned lower Appellate Court was right in decreeing the suit of the plaintiff/respondent inspite of the fact that the plaintiff was not found to be the owner or in possession of the suit land by the trial Court? 5) Whether the provisions of Section 68 of the Evidence Act have been correctly appreciated with respect to Ext.P-1 by the learned District Judge?” However, during the course of hearing, as was argued by the learned counsel for the appellants, the substantial question of law was reframed as under:- 1) Whether the suit filed by a co-sharer for possession against trespasser is maintainable and a decree for possession can be passed with respect to the same? With the consent of the learned counsel for the parties, the matter was taken-up for hearing after framing of the substantial questions of law. The present appeal arises out of the judgment and decree dated 24.4.1995 passed by the District Judge, Una, in Civil Appeal No. 22/1990 titled as Dalip Chand alias Dalipa v. Joginder Singh & others, inter alia decreeing the plaintiffs’ suit for possession. Plaintiff is the respondent No.1 and the contesting defendants No. 1 to 3 are the present appellants. Other respondents are proforma defendants No. 4 to 8. Plaintiff, vide sale deed dated 8.9.1986 purchased 1/3rd share (2 kanals 1 marla) of land comprising Khasra Nos. 3 1876 (1-15) and 1332 (4-8), measuring 6 kanals 3 marlas in village Lalri, District Una. Plaintiff was dispossessed by the contesting defendants who thereafter constructed a temporary shed on the suit land. On 15.6.1987, plaintiff filed a suit for possession of the land measuring 1 kanal 15 marlas and also praying for a decree of mandatory injunction directing the contesting defendants from removing the temporary structure. Proforma defendants who were the co-sharers and from whom the land was purchased in the written statement, admitted the claim of the plaintiff and the contesting defendants resisted the suit on the ground that they have acquired title of owners by way of adverse possession. The trial Court, after considering the material on record held the plaintiff to be the owner and in possession only to the extent of 1/3rd share of the land. The contesting defendants plea that they had become owners by way of adverse possession was rejected as having not proved. The suit of the plaintiff, however, was dismissed on the ground that a co-sharer could not have filed the suit for possession with respect to the entire land. The judgment dated 15.1.1990 and decree passed by the Sub Judge Ist Class(II), Una in Civil Suit No. 121/87, RBT -195/88 was assailed by the plaintiff by way of an appeal before the District Judge, Una who decreed the suit in favour of the plaintiff in terms of its judgment and decree dated 24.4.1995 4 passed in Civil Appeal No. 22/1990 which is now a subject- matter of the present appeal. The defendants plea that they are in possession of the land for the last 15 years and that they have become owners by way of adverse possession was turned down by the trial Court. This finding was not assailed by the defendants by way of an appeal. That apart, the Appellate Court after appreciating the statements of the parties itself found the defendants to be not in possession. The defendants admittedly have constructed a temporary structure on the suit land. Both the Courts below by way of concurrent findings of facts have recorded that the original plaintiff is co-owner of land comprising in khasra Nos. 1876 (1-15) and 1332 (4-8) total land admeasuring 6 kanals and 3 marlas. Plaintiff’s 1/3rd share comes to approximately 2 kanals 1 marla. The suit in question is for a recovery of possession of land ad-measuring 1 kanal 15 marlas comprising in khasra No.1876 only. The original owner impleaded as a co-sharer in his written statement has admitted the claim of the plaintiff. That apart in Dharam Singh v. Jagdish (AIR 2005 HP 10), this Court has held that the suit by a co-sharer for possession against a trespasser without impleading the other co- sharers is maintainable and a decree for possession can be passed. 5 The question of law is answered accordingly. The finding and the judgment of the first Appellate Court is based on cogent material after correctly appreciating the statements of the parties as also the material on record. I see no reason to interfere with the reasoned judgment passed by the Court below. The appeal is accordingly dismissed. September 18, 2007. (Sanjay Karol) (rana) Judge. ``