IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 303 of 1998. Reserved on:8.7.2009. Decided on: 4.8.2009. __________________________________________________ Shri Hukam Singh … Appellant. Versus Shri Nag Ram and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vinod Kumar Gupta, Adv. For Respondents No. 1 : Mr. Bimal Gupta, Advocate. For Respondents No. 2 to 12 : Nemo. __________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 12.9.1997 passed by the learned Additional District Judge, Mandi in Civil Appeal No. 19 of 1992. 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 declaration and injunction against the defendants and proforma defendants with the allegations that defendants No. 1 to 12 and himself had been joint owners in possession of ½ share of the suit land comprised in Khewat Khatauni No. 44/103, 104, 105, 106, Khasra 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 Nos. 387, 390, 391, 397, 388,, 394, 404, 381, 386, 389, 396, 392, 395, Kitta 14 measuring 33-6-16 bighas situated in Mauza Barahal H.B. No. 203, Tehsil Sadar, District Mandi. Proforma defendant; namely, Sobha Ram was stated to be owner in possession of remaining half share of the suit land. The case of the plaintiff was that the shares of defendants No. 1 to 12 in the suit land had not been correctly recorded in the books of the Collector. He had been recorded joint owner in possession of 1/24 share of the suit land. Defendants No. 1 to 12 had been recorded joint owners in possession of 11/24 share of the suit land. The entry was stated to be wrong, illegal and not binding on the plaintiff. It is further added that the suit land was owned and possessed by defendants No. 1 to 12, plaintiff and their predecessor in interest and by Smt. Gorju. Plaintiff, defendants No. 1 to 12 and their predecessor in interest had been in joint ownership of 1/3rd share of the suit land. The remaining 1/6th share of the suit land was owned and possessed by Smt. Gorju widow of Shri Chamaru. Shri Shobha Ram had been joint owner in possession of ½ share of the suit land. Smt. Gorju widow of Chamaru had sold her 1/6 share of the suit land in favour of the plaintiff through a registered sale deed dated 23.12.1958. She had not only sold her 1/6th share in the suit land in favour of the plaintiff but had also sold her other land comprised in Khata Khatauni Nos. 2/7, 8 kitta 24 measuring 12-3-2 bighas and khata Khatauni No. 5/14, 15 and 16 kitta 7 measuring 28-2-3 bighas to him. Mutation was attested on 9.12.1959. The Revenue Estate, Balh had undergone settlement operations in 1961-1962. The settlement staff had not correctly acted upon the mutation No. 46 3 dated 9.12.1959 in that share of Smt. Garju in the suit land had been mutated in favour of the plaintiff and defendants No. 1 to 12 in equal shares. This entry was repeated in Jamabandis upto 1983- 1984. The defendants No. 1 to 12 had applied for partition of the suit land. The plaintiff had been shown owner in possession of 7/36 share of the suit land with effect from 23.12.1958 onwards. The entries of Jamabandi Misal Haquiat and Jamabandis upto 1983-1984 were stated to be wrong, illegal and void. The defendants No. 1 to 12 were sought to be restrained from interfering with the joint ownership and possession of the plaintiff of 7/36 share of the suit land. The defendants No. 1 to 9 had resisted the suit by filing separate written statement. Defendants No. 11 and 12 arrayed before the trial Court also resisted the suit. The learned trial Court decreed the suit on 9.12.1991. Defendants No. 11 & 12, namely; Hukam Singh and Mangat Ram filed an appeal before the learned Additional District Judge, Mandi challenging the judgment and decree passed by the learned trial Court. The other contesting defendants were added as proforma respondents. The learned Additional District Judge dismissed the appeal on 12.9.1997. This regular second appeal is directed against the judgment and decree dated 12.9.1997. The regular second appeal was admitted on the following substantial questions of law: 1. Whether the rights as accrued by way of sale deed which was never put in operation till date will create any embargo upon the title as created in favour of the appellant by virtue of his being in possession of the suit land by way of adverse possession? 2. Whether non-framing of issue qua adverse possession has prejudiced the case of the appellant, 4 more so keeping in view the specific pleadings averred in the written statement. 3. Whether the issue regarding limitation is sustainable in view of mis-representation on behalf of respondents/plaintiff. Mr. Vinod Kumar Gupta has vehemently argued that the judgments and decrees passed by both the learned Courts below are not sustainable in the eyes of law. He then contended that it was necessary for the trial Court to frame issue with regard to the claim put forth by the appellant for becoming owner by way of adverse possession. He then contended that the question of limitation has been wrongly decided by both the learned Courts below. I have heard the learned counsel for the parties and have gone through the record carefully. Since the substantial questions of law are inter-connected and inter-linked, they have been taken up together for adjudication to avoid repetition of discussion of evidence and for convenience. The plaintiff has appeared as PW-1. He has stated his ownership and possession of the suit land. According to him, he had purchased 1/6th share of Smt. Gorju through a registered sale deed. He came to know about wrong entries in the books of the Collector only when the partition proceedings were initiated. PW-2 Smt. Budhi Devi deposed that she had purchased land in the name of her son from Smt. Gorju 31-32 years ago. She has deposed that Smt. Gorju had delivered possession of the land to them. PW-3 Shri Sher Singh was the attesting witness of the sale deed dated 23.12.1958. He has deposed that Smt. Gorju had sold her 1/6th 5 share in the suit land in favour of the plaintiff through registered sale deed. Shri Nand Lal, who was the second attesting witness, had died. PW-4 is the proforma defendant. DW-1 has deposed that neither Smt. Gorju had any share in the suit land nor she had sold her share in the suit land in favour of the plaintiff. It is apparent from the Jamabandi for the year 1953-1954 Ext. PP that Smt. Gorju had been joint owner in possession of 1/6th share in the suit land. These entries were re-iterated in the Jamabandi for the year 1957-1958 Ext. PC. The sale deed has been proved by the plaintiff. It was registered with the Sub Registrar. The defendants could not prove how the settlement staff had apportioned 1/6th share of Smt. Gorju between plaintiff and defendants No. 1 to 12 in equal share on the face of registered sale deed Ext. PW-3/A and mutation No. 46 Ext. PB. The settlement staff has committed mistake while preparing Jamabandi Misal Haquiat Bandobast. In these circumstances, the plaintiff became entitled to be recorded owner of 7/36 share in the suit land. Mr. Vinod Kumar Gupta had argued that the appellant had become owner by way of adverse possession and the issue was required to be struck by the trial Court. This point was discussed by both the learned Courts below. It is not necessary to frame issue when the parties know their case and have led evidence. However, fact of the matter is that the appellants have failed to prove adverse possession by leading tangible evidence. Issue No.1 framed by the trial Court was wide enough to include the entire controversy involved in the suit. Moreover, this plea has been raised for the first time before this Court and was not taken in 6 the grounds of appeal before the learned Additional District Judge. The plaintiff has come to know about wrong entries in the revenue record on 21.6.1987 when the defendants had filed an application for partition. In view of this, learned Courts below have come to the right conclusion that the suit was within limitation. Accordingly, in view of the observations made hereinabove, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. August 4, 2009. (cr)