IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 41/1999 Reserved on:17.3.2009 Decided on: 01.4.2009 ________________________________________________ Bhagat Ram. …Appellant. Versus Kaushalya Devi and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant : Mr. K.D. Sood, Advocate with Mr. Rajnish K. Lal, Advocate. For the Respondents/:Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 8.2.1999 passed by the learned District Judge, Hamirpur in civil appeal No. 138/1991. Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the appellant- 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 plaintiff Smt. Nikki Devi (hereinafter referred to as ‘the plaintiff’ for convenience sake) instituted a suit in the court of Sub Judge, Hamirpur for declaration to the effect that she has become owner by way of adverse possession of the land as per details given in para 1 of the judgment of the trial court. The suit was resisted by the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake). The plaintiff filed a separate replication to the written statements filed by defendants No.1 to 3. The trial court decreed the suit on 4.10.1991. The defendants feeling aggrieved and dissatisfied with the judgment and decree passed by the trial court preferred an appeal before the learned District Judge, Hamipur. The learned District Judge allowed the appeal on 8.2.1999. This Regular Second Appeal was admitted on the following substantial questions of law. 1. “Whether in view of the fact that Nikki Devi who was in possession of estate of her husband alongwith Chintu had a right of maintenance and also came in possession of the estate of Chintu had a right of maintenance in the estate of her son and being in possession of the said property at the time of coming into force of the Hindu Succession Act had become owner of the same? 2. Whether the plaintiff had become owner of the property by adverse possession and the ingredients of open, hostile and continuous possession were established and the suit of the plaintiff was liable to be decreed? 3. Whether the learned District Judge was right in reversing the well reasoned judgment of the trial court when presumption of truth attached to revenue record had been rebutted by documents Ex.P-9, P-3 and P-4 3 which established the exclusive possession of Chintu and the fact that Kaushalaya was residing in village Kargu and not village Karsai? Mr. K.D. Sood, Advocate has strenuously argued that the judgment and decree passed by the first appellate court is not sustainable. He has contended that the judgment and decree passed by the trial court may be restored. He has further contended that the plaintiff had proved the ingredients of adverse possession i.e. open, hostile, uninterrupted and to the knowledge of the true owner. Mr. Bhupender Gupta, Senior Advocate has supported the judgment and decree passed by the first appellate court. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. It is not disputed at the Bar that the plaintiff Nikki Devi was the mother-in-law and Kaushalya Devi is the daughter-in-law. The dispute between the parties concerns land measuring 29 Kanal 13 marlas. The suit land was earlier owned and possessed by the husband of the plaintiff Sh. Prabhu Ram. He died intestate in the year 1942-43. He left behind his widow Smt. Nikki Devi and son Chintu Ram. Sh. Chintu Ram became owner in possession of the land by way of inheritance. He died in the year 1949-50. He was succeeded by his widow Smt. Kaushalya Devi. The plaintiff claimed that she is in possession of the suit land for the last 40 years. 4 The defendant was minor at the time of death of Sh. Chintu Ram. She attained the majority in the year 1961-62. The plaintiff has not stepped into the witness box. She was represented by her General Power of Attorney Sh. Jaishi Ram. The plaintiff has placed on record certified copy of Jamabandi for the year 1983-84. The defendant is recorded as owner qua the suit land with other co-sharers in different khatas. She is recorded in joint possession with other co-owners in some of the Khata/Khataunies. In some of the Khatas/Khataunies other co-owners/tenants/persons through exchange are recorded in cultivating possession. Few of the tenants are recorded under defendants as well. The plaintiff has not placed on record any revenue record except the jamabandi for the year 1983-84. PW-1 Sh. Jaishi Ram has deposed that defendant Kaushalaya Devi was aged seven years when her late husband died in the year 1950. The statement of Sh. Jaishi Ram was recorded on 15.5.1989. He has deposed that Nikki Devi had been cultivating the land through her son- in-law Sh. Bhindu for the last 40-50 years. He has not deposed about the year when the plaintiff entered into the possession of the suit land. PW-2 Babu Ram has admitted in his cross-examination that the Khatas in which the suit land is comprised are joint with PW-1 Jaishi Ram. The suit land is both cultivated and Kharetar. He could not explain the manner in which the plaintiff has come into possession of the suit land. He could not give the precise date from which the possession of the plaintiff had become adverse to the defendants. PW-3 Sh. Jagdish Chand has deposed on the lines of PW-2. PW-4 Sh. Amar Nath has stated that he had been seeing the possession of 5 the plaintiff over the suit land for about 15-16 years. This statement is in contradiction of the statements of PW-1 to PW-3. He also could not give the details since when possession became adverse and hostile qua the defendants. PW-6 Braham Dass has seen the possession of the plaintiff for the last 8-10 years. PW-9 Khushal Chand Lambardar did not know the description of the land. He has deposed that Bhindu was paying the revenue of the suit land, however, he did not place any receipt on record. PW-10 Bhindu was examined on 8.3.1991. He also could not explain since when the possession of the plaintiff through him became adverse to the title of the defendant. PW-12 Braham Dass and PW-13 Suresh Kumar have stated about the residence of the defendant Kaushalya Devi at village Karghoo. Defendant No.1 has appeared as DW-1. She has admitted that she has executed a sale deed in favour of sons of DW-2 Rattan Chand on 14.3.1990 during the pendency of the suit. DW-2 Rattan Chand has admitted in his cross-examination on behalf of the plaintiff that his sons have purchased land measuring 10 kanals 4 marlas out of the suit land during the pendency of the suit. Mr. K.D. Sood, Advocate has strongly relied upon Ex.P-9. This order was passed by the Consolidation Officer on 29.6.1987. It was represented before the Consolidation Officer that defendant Kaushalya Devi was neither residing in village Karghoo nor she was the owner in possession of the suit land. Sh. Jaishi Ram has represented to the Consolidation Officer that the plaintiff, who is the mother-in-law of Kaushalya Devi had filed a civil suit in the Civil Court with regard to landed property and also to the effect that besides 6 defendant Kaushalya Devi, she was also entitled to share in the estate of her deceased son late Sh. Chintu. It is in these circumstances that the prayer of Kaushalya Devi for partition of her share therein came to be declined. Sh. Jaishi Ram has asserted that the suit land was in possession of the plaintiff through her son-in-law Bhindu. Strangely enough while appearing before the Consolidation Officer, he represented that the suit land was in possession of the plaintiff. This contradiction has not been explained by the plaintiff. The plaintiff has neither pleaded nor proved the ouster qua the share of the co-owner by asserting her title through adverse possession. It was necessary for the plaintiff to set up the plea of ouster. In these circumstances the plaintiff has failed to prove her title by way of adverse possession. The basic ingredients of the adverse possession i.e. open, hostile, uninterrupted and to the knowledge of the true owner are lacking in the pleadings and the evidence led by the plaintiff. The first appellate court has correctly appreciated the evidence. There are material contradictions in the statements made by the witnesses since when the plaintiff was in possession of the suit land. None of the witnesses has given the exact date from which the title of the plaintiff became adverse qua Kaushalya Devi. The defendant was minor at the time of death of her husband. She attained majority in the year 1961-62. The plaintiff has only placed on record and proved copy of jamabandi for the year 1983-84. There is no explanation forthcoming why the revenue records before or after 1983-84 were not placed on record. The plaintiff has neither pleaded nor proved ouster in view of the joint ownership of the land. The first appellate court has come to a just 7 conclusion that at the most the possession of the plaintiff was permissible taking into consideration the close relationship of mother- in-law and daughter-in-law. The plaintiff could not take any assistance from the order passed by the Consolidation Officer dated 29.6.1987. These entries have been made only on the basis of statement of Jaishi Ram. Jaishi Ram, as noticed above, has represented to the Consolidation Officer that the defendant was not residing in the village and the suit land was under litigation. In view of the aforesaid reasoning, there is no merit in this Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 01.04.2009. *awasthi*