IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 379/1999 Reserved on:10.8.2010 Decided on: 20.8. 2010 ________________________________________________ Mool Raj. …Appellant. Versus Govind Singh. … Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Anand Sharma, Advocate. For the Respondent :Mr. Ajay Sharma, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 22.2.1999 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 90-K/XIII-1998. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the suit was filed by Thakur Harnam Singh, who died during the pendency of the suit and his legal representative Sh. Govind Singh was brought on record before the learned Sub Judge (II), Kangra. The suit was filed by Thakur Harnam Singh against the appellant-defendant (hereinafter referred to as ‘the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes defendant’ for convenience sake) for possession of the land comprised in Khata No. 39 min, Khatauni No.71, Khasra No.95, measuring 0-08-59 hectares situate in Tikka and Mauza Jasoor, Tehsil Nurpur, District Kangra (hereinafter referred to as ‘the suit land’) and for damages in lieu of wrongful possession of the suit land by defendant @ Rs. 500/- per annum from the year 1987 onwards. In the written statement, preliminary objection was taken regarding cause of action, suit being not maintainable and there being no locus standi to file the suit. On merits, it was alleged that the defendant was in possession of the suit land alongwith land measuring 12 kanals 4 marlas on the basis of prior agreement. It was further averred that agreement to sell was entered into between the plaintiff and defendant on 1.7.1980 and thus he was in possession of the suit land in pursuance of the part performance of an agreement to sell. Alternatively, it was submitted that defendant has become owner by way of adverse possession. Replication was filed by the plaintiff. Issues were framed by the trial court. The learned trial court partly decreed the suit for the relief of possession. However, the relief regarding damages was declined. Defendant feeling aggrieved by the judgment and decree passed by the learned trial court dated 21.8.1997 preferred an appeal before the learned District Judge, Kangra at Dharamshala. She dismissed the same on 22.2.1999. Hence, the present Regular Second Appeal. The same was admitted on the following substantial questions of law: 1. “Whether the Courts are not bound to grant one more opportunity of leading evidence on the adjourned date when the court does not proceed to decide the case forthwith in terms of order 17 rule 3 CPC? 2. Whether a case can be deemed to be transferred from one Court to another when there is no order of transfer passed by the learned District Judge available on the record?” 3. Mr. Anand Sharma has strenuously argued that one more opportunity to lead evidence on the adjourned date ought to have been granted to the defendant since the court did not proceed to decide the case forthwith in terms of order 17 rule 3 of the Code of Civil Procedure and he further argued that the case could not be deemed to be transferred from the court of Sub Judge (I), Nurpur to the court of learned Sub Judge, Kangra when there was no order of transfer passed by the learned District Judge on record. 4. Mr. Ajay Sharma has supported the judgment and decree passed by the learned District Judge. 5. I have heard the learned counsel for the parties and perused the record carefully. 6. Since both 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. 7. The defendant had been granted numerous opportunities to lead evidence. First opportunity was given to him to lead evidence on 8.10.1996. No DWs were present on that date. The DWs were also not available on 28.10.1996. On the next, again no DWs were present as process fee/diet money was filed late. Adjournment was sought, which was granted subject to costs of Rs. 50/-. On 17.1.1997 though one of the witnesses Rajinder was present but the defendant himself not being present, the witness was discharged. No DWs were present on 17.4.1997. Adjournment was allowed, subject to costs of Rs. 200/-. Thereafter, case was listed on 6.5.1997, on which date two witnesses were present, but the file, which had been requisitioned was not received and the case was adjourned for 31.5.1997. File was received and the defendant was directed to produce his evidence on 7.6.1997. No DWs were present on 7.6.1997 and adjournment was again sought. It was granted subject to further costs of Rs. 50/- and defendant was directed to produce the evidence at own responsibility on 9.7.1997, on which date ultimately, evidence of the defendant was closed. 8. Plaintiff was recorded as owner of the suit land as per Ex.P-1 and P-2, which were copies of Missal Hakiat Bandobast and Jamabandi for the years 1985-86 and 1975-76, respectively. Though the defendant has claimed in his written statement that he was in possession of the suit land in part performance of the agreement to sell, however, the fact of the matter is that there is nothing on record to show that any such agreement has never come into existence. 9. Mr. Anand Sharma has strenuously argued that only the Civil Court, Nurpur had the territorial jurisdiction to decide the suit. However, the same has been decided by the learned Sub Judge (2), Kangra. It has come on record that on 7.3.1989, the learned Sub Judge (1), Nurpur has sent the file to the District Judge for transfer of the same to some other court. Order-sheet dated 4.4.1989 discloses that the case has been received by transfer from the court of Sub Judge (1), Nurpur. 10. Mr. Anand Sharma has also argued that case ought to have been decided forthwith as per order 17 rule 3 of the Code of Civil Procedure. The evidence of the defendant was closed on 9.7.1997. The final date fixed for arguments was 19.7.1997. Thereafter it was listed for arguments on 28.7.1997. On this date, learned Presiding Officer was on leave. The suit was disposed of on 21.8.1997. 11. A Division Bench of Allahabad High Court in Kuri Lal Runka versus Banarsi Devi, AIR 1986 Allahabad 94 has held that word “forthwith” used in rule 3 cannot be taken to be a mandate to decide the suit on the same day as a penalty for default. Their Lordships have held as under: “21. Learned counsel for the appellant had next contended that the impugned judgment and decree rendered by the Court below cannot be taken to be covered by O.XVII, R. 3, which according to him, would be applicable only in a case where the Court below having decided to proceed under O. XVII, R. 3 of the Code must have also decided the case ‘forthwith’. Learned counsel urged that since in the present case the learned Court below after having purported to proceed under O. XVII, R. 3, recorded the statement of the witnesses examined by the plaintiff but it did not decide the case on that very day. The case was adjourned to 14.8.1978. He, thus, contended that the judgment and decree which was passed in the suit by the learned Court below on 24.8.1978 cannot be treated to be covered by O. XVII, R. 3 of the Code and it is merely an ex parte decree and deserves to be set aside as the defendant has shown sufficient cause for his absence on 10.8.1978 when the Court had proceeded to record the evidence of the plaintiff in purported exercise of jurisdiction under O. XVII, R. 3 of the Code to decide the case on merits. In support of his contention learned counsel placed reliance upon a decision in Dayalji Wasanji v. Kedarnat Onkarmal, AIR 1953 Nag 222 wherein it has been held that, “As I understand this rule, a Court proceeding under this provision must decide the suit ‘forthwith’ that is, on the same date, and it cannot adjourn the hearing of the suit to some other date and then purport to decide it under O.17, R.3”. We are unable to agree with the view expressed in aforesaid decision. The word ‘forthwith’ appearing in O. XVII, R. 3 of the Code cannot be so construed as held in the aforesaid decision in Dayalji’s case (supra). This question had also corpped up in another case in Tripathi Sansnath v. Tripathi Bhagwat Nath, AIR 1966 All 615 wherein D.S. Mathur, J. (as he then was) had observed as follows:- The word ‘forthwith’ means within a reasonable period. It is, therefore, necessary for the Court, while proceeding with the trial under the Rule to decide suit within a reasonable period. What is a reasonable period shall depend upon the circumstances of each case. This question was also considered in the aforesaid Full Bench decision in M.S. Khosla’s case (AIR 1976 All 290) (supra) wherein it was urged on behalf of the appellant that O. XVII, R. 3 entitles the Court to ‘proceed to decide the suit forthwith’. It was argued that ‘forthwith’ is a direction to decide the suit on the same day as a penalty for default. The said contention was repelled and it was observed by Satish Chandra, J., with whom K.B. Asthana, C.J. and H.N. Seth, J. had agreed that:- “…. The Court can decide the suit by proceeding with the suit forthwith by determining the issues, giving findings and then pronouncing judgment accordingly. The phrase ‘proceed to decide the suit forthwith’ in R. 3 appears to be somewhat similar in its import to Order XV Rule 3. The word ‘forthwith’ qualifies the word ‘proceed’ rather than the word ‘decide’. All that the Rule directs is that notwithstanding the default the court is to proceed with the further hearing or trial of the suit with a view to dispose it of, if possible on that every day, in accordance with law.” 22. It was further observed by referring to decision in Sangram Singh v. Election Tribunal AIR 1955 SC 425 that:- “….. The same principle is applicable to Order XVII, Rule 3. If on a particular date of hearing Rule 3 is attracted, the court can proceed to try the suit on that day, and if for some reason it is unable to conclude the hearing or decision of the suit on that day and adjourns the further hearing to another day, the next date will not automatically be governed by Rule 3. It will depend on the circumstances prevailing on that day. The party who had defaulted on the previous date will be entitled to participate in the proceedings though it will not be allowed to put the clock back by seeking to do what it ought to have done on the previous date.” In view of above we do not find any substance in the aforesaid argument of the learned counsel for the appellant that since the court below had not decided the suit forthwith on that very day, i.e. 10.8.1978 when it had proceeded to decide the case under O. XVII, R. 3 of the Code and had recorded evidence of the plaintiff. In our opinion, the word “forthwith” used in O. XVII R.3 cannot be taken to be a mandate to decide the suit the same day as a penalty for default. Thus, the judgment and decree dated 24.8.1978 passed by the court below is clearly covered by the provisions contained in O. XVII, R. 3 of the Code and no exception can be taken to it on the aforesaid ground urged by the learned counsel for the appellant.” 12. Their Lordships of the Hon’ble Supreme Court in Thakur Ji Ram Janki Ji and another versus Shankar Dayal, (2006) 9 SCC 187 have held that order 17 rule 3 CPC does not cast a mandate on the trial court to deliver the judgment on the same day but merely empowers it to exercise its discretion in the manner provided. Their Lordships have held as under: “2. The dispute in this appeal arises out of a suit filed by the appellant, who is the father, against his son, the respondent. The appellant had filed the suit for possession alleging that the respondent had forcibly occupied a portion of the appellant's property. The suit was decreed in favour of the appellant by the trial court. The first appeal which was preferred by the respondent was dismissed. The respondent filed a second appeal which was allowed by the High Court solely on the ground that the provisions of Order 17 Rule 3 of the Code of Civil Procedure, 1908 had not been complied with by the trial court. 3. Order 17 Rule 3 of the Code of Civil Procedure, 1908 enables the court, when time has been granted to a party to produce evidence and he fails to do so or the case of either default on the part of the party with regard to the further progress in the suit, to either (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, proceed under Rule 2 Order 17. 5. The reasoning of the High Court is entirely erroneous; Order 17 Rule 3 does not cast a mandate on the trial court but merely empowers the trial court to exercise its discretion in the manner provided. It does not by any stretch of imagination require that in the case of default of the party, the trial court must proceed to decide the suit forthwith and that if it does not do so on that date it cannot do so thereafter.” 13. Now, as far as the plea of adverse possession raised by the appellant is concerned, he has not led any cogent evidence to establish that his possession is physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding 12 years. It is well settled proposition of law that merely long and continuous possession by itself does not constitute adverse possession or if it was either permissive possession or possession without animus possidendi. The appellant has not given the year when he came into possession of the suit land in his written statement. He has not proved when his possession became hostile to the plaintiff. Plaintiff has not proved the ingredients of adverse possession. 14. No other point was urged. 15. Accordingly, in view of the discussion made hereinabove and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, there is no merit in the present Regular Second Appeal and the same is dismissed with no order as to costs. (Rajiv Sharma), J. 20.8. 2010. *awasthi*