IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 138 of 1995. Reserved on:10.3.2009. Decided on: 17.3.2009. __________________________________________________ Vinod Kumar and others. … Appellants. Versus Ajit Lal Sharma … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. For the Respondent : Mr. Dushyant Dadhwal, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 19.1.1995 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 105-D/XIII-1994. Brief facts necessary for adjudication of this regular second appeal are that the respondent-plaintiff, hereinafter referred to as the plaintiff for convenience sake, had filed a suit for possession of the property in dispute in which he had also prayed for the relief of perpetual injunction for restraining the appellants-defendants, hereinafter referred to as the defendants for convenience sake, over any part of the property in dispute. He also sought mandatory injunction for directing the defendants to demolish the room 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 constructed by them over the pre-existing kitchen and restoring the property in dispute to its original position. The plaintiff has averred that he was owner of the property in dispute. The defendants were his close relations. He was a Government servant and mostly remained posted outside Dharamshala. He permitted the defendants to use principal portion of the house in dispute as residence in the capacity of licensee. The defendants took forcible possession of the room. The registered notice was served upon the defendants to vacate the property. The defendants instead of vacating the property in dispute started constructing a room over the kitchen. It was averred that the plaintiff was not exclusive owner of the property in dispute. According to the defendants, the share of the plaintiff was only 1/7th. It was further stated that the plaintiff lost his parents at young age and he was adopted by Shri Amrit Lal, father of the defendants and was brought up by him. All the expenses for construction of the house were borne by the defendants. He had not contributed towards the construction of the house. He has denied forcible possession of the room. The learned trial Court decreed the suit on 30.6.1993. The defendants preferred an appeal before the learned District Judge, Kangra at Dharamshala. The learned District Judge set aside the findings of the learned Court below regarding damages for use and occupation. However, the other findings of the learned Court below were affirmed. This regular second appeal was admitted on the following questions of law: 1. Whether on the material on record, the only conclusion that could be drawn was that the plaintiff 3 was not the sole owner of the property and that the defendant-appellant was in possession thereof and had constructed the costly buildings after demolishing the costly structure raised by the appellant without objection of the respondents? 2. Whether the defendant has become owner of the property by adverse possession and the plea of licence was not sustainable in law? 3. Whether the plaintiff was entitled to a decree for mandatory injunction when in the facts and circumstances of the case the defendants had raised costly structure with the consent of the plaintiff, even if the alleged plea of licence was accepted? 4. Whether the plaintiff was estopped on account of acquiescence from filing the present suit and the evidence on record has been misread and misconstrued and vitiated the findings? 5. Whether in view of the fact that the plaintiff has not contributed towards the costs of construction of the building and the property having been purchased by Amrit Lal out of the funds of Joint Hindu Family in his capacity as Karta, plaintiff could be treated as the sole owner of the property? Mr. Rajnish K. Lal has strenuously argued that the judgments and decrees passed by both the learned Courts below are not sustainable. He then contended that the property in dispute was constructed by the defendants and the plaintiff was adopted by 4 their father. He lastly contended that the share of the plaintiff was 1/7th in the property. Mr. Dushyant Dadhwal has supported the judgments and decrees passed by both the learned Courts below. I have heard the learned counsel for the parties and have perused the record carefully. Since the substantial questions of law are inter-connected and inter-linked, they have been taken up together for determination. Plaintiff has appeared as PW-1. He deposed that he is owner of the land and house situate over the suit property. The defendants are his real cousins being the sons of elder brother of his father. Shri Amrit Lal was appointed as Court guardian in respect of the plaintiff in case No. 26 of 1946. He purchased the suit property out of the funds and property of plaintiff’s father. The plaintiff’s father was working in a Bank at Lahore. The suit property was purchased through a registered sale deed by Shri Amrit Lal, father of the present defendants in his name out of the money of the father of the plaintiff vide sale deed Ext. PW1/D. The notice was served upon the defendants whereby licence of the defendants was terminated. The house was not vacated by the defendants. He has denied that Shri Amrit Lal purchased the suit property out of the joint family funds. He has denied that he was ever adopted by Shri Amrit Lal. The matter was also reported to the police after the defendants broke open the lock of the room which was in possession of the plaintiff. The plaintiff has produced on record copy of Shajra Kisatbar (Ext. PA), copy of Misal Haqiat Bandobast 5 1976-1977 (Ext. PB), copy of site plan of the house (Ext. PW1/A), copy of notice (Ext. PW1/B) and also copy of Jamabandi for the year 1917-1918 (Ext.P1), copy of Jamabandi for the year 1945- 1946 (Ext. P2) and copy of Jamabandi for the year 1976-1977 (Ext. P3). DW-1 is Devinder Lal defendant. He has deposed that the suit property was purchased by his father in 1943-1944. His father after demolishing the old house constructed a new house. He has admitted that at the time when the suit property was purchased, Shri Avinashi Lal was not living with Shri Amrit Lal Sharma nor they had joint Khata with each other. They had their separate kitchens. He has also admitted that till 1983-1984, he had no property in his name. He has shown his ignorance that the plaintiff had ever legally adopted by Shri Amrit Lal. DW-2 Shri Om Prakash and DW-5 Shri Roshal Lal have admitted that the defendants were in possession of the suit property. DW-2 Shri Om Prakash in his cross-examination has shown his inability to depose as to when the additions and alterations were made and disputed house was renovated. DW-5 Shri Roshan Lal has admitted in his cross- examination that he has made his statement on hear say. DW-3 Shri Hoshiar Singh has deposed that he had undertaken the renovation work of the house 15-16 years back. There is no evidence on record to suggest that the property in question was purchased by Shri Amrit Lal out of the joint family funds. The defendants have also failed to prove that the plaintiff was ever adopted by Shri Amrit Lal. There are discrepancies in the statements of DW-3 and DW-4 with regard to old house being demolished and new house being constructed. The defendants 6 could not point out any discrepancy in the notice dated 23.10.1983. They have also failed to prove that the plaintiff has 1/7th share in the entire suit property. The plea of adverse possession was though taken but no evidence was led to prove it. There is nothing on record to suggest that the plaintiff at any given time represented to the defendants that he was not entitled to property nor there is anything on record to show that the defendants are in possession of the suit property. It was for the defendants to prove that the construction/renovation and repair work undertaken by them was within the knowledge of the plaintiff. The defendants have failed to prove that the house existing on the spot was constructed by them after demolition of the old house. Accordingly, it is held that the plaintiff was exclusively owner in possession of the property of the suit land. The defendants have never raised any construction/reconstruction of the house. The plea of adverse possession though taken but no evidence was led. The plaintiff was not estopped from filing the suit. The property in question was purchased from the funds of the plaintiff’s father. The plaintiff was never adopted by Shri Amrit Lal. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. March 17, 2009. (cr)