IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 104/1999 Reserved on:20.11.009 Decided on:16.12. 2009 ________________________________________________ Tilka. …Appellant. Versus Mohkam Singh and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Jyotsna Rewal Dua, Advocate. For the Respondents :Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 15.1.1999 passed by the learned District Judge, Sirmaur in CA No. 49-CA/13 of 1998. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration in respect of the land bearing khata khatauni No. 183 min/285, khasra No. 484/30 min measuring 6 Biswas situate at Poanta Shib, District 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Sirmaur (hereinafter referred to as ‘the suit land’). It is averred in the plaint that the plaintiff forcibly occupied the suit land since it was adjacent to the land under the tenancy of the plaintiff in the year 1970. He had been coming in possession of it openly, peacefully, continuously and without any interruption from the respondents- defendants (hereinafter referred to as ‘the defendants’ for convenience sake). His possession was recorded in the jamabandis for the year 1974-75 and 1979-80. According to him, he had become owner of the land by way of adverse possession. It is further stated that the revenue entries showing the defendants as owners of the suit land were wrong and illegal. Defendant No.1 filed application in the year 1980 in the Court of Assistant Collector 1st Grade, Sirmaur for partition. He filed objections to the same. Assistant Collector 1st Grade, Sirmaur framed mode of partition on 16.10.1982. According to the plaintiff, Assistant Collector 1st Grade had no jurisdiction to decide the correctness of the recorded possession of the plaintiff over the suit land by way of various jamabandis. The defendants contested the suit. On merit, it was alleged that the plaintiff never occupied the suit land nor he was in possession of the same and the entry of ‘Kabij’ in the name of plaintiff qua the suit land was illegal and against the facts. According to the defendants, plaintiff never cultivated the suit land and the revenue entries in his name were wrong and had been corrected in the proper forum. They have supported the orders passed by the Assistant Collector 1st Grade. Defendant No.4 has filed separate written statement. The suit was earlier dismissed by the then learned Sub Judge vide judgment and decree dated 13.2.1992. The same 3 were affirmed by the learned District Judge, Sirmaur on 29.7.1994. This Court, vide order dated 24.10.1997, remanded the case back to the trial court for fresh trial. It is in these circumstances, the suit was tried afresh by the learned Sub Judge 1st Class. Defendant No.5 was impleaded as party as per order dated 26.12.1997. The learned Sub Judge dismissed the suit on 1.8.1998. The plaintiff preferred an appeal before the learned District Judge, Sirmaur. He dismissed the appeal on 15.1.1999. This Regular Second Appeal has been directed against the judgment and decree dated 15.1.1999. It was admitted on 19.4.1999 on the following substantial questions of law. 1. “Whether on the point of acquiring ownership by way of adverse possession by plaintiff of the suit land, the learned District Judge has misconstrued, misinterpreted Ex.PW-1/A Jamabandi 1974-75, Ex.PW- 1/B Jamabandi 1979-80, Ext. PW-1/C Khasra girdawari, Ext. Dy, Jamabandi 1996-97, Ext. DW-4/B report of Field Kanungo? 2. Whether in partition proceedings under Chapter 9 of the Himachal Pradesh Land Revenue Act, 1953, Assistant Collector, 1st Grade is competent to delete the name of a person recorded in possession in jamabandies and thus whether Ex. P-1 order dated 16.10.1982 Ex.DW-4/A order dated 16.10.1986, Ex. DW- 4/J order dated 17.11.86 passed by learned Assistant Collector, 1st Grade are wrong, illegal, without jurisdiction and these can be challenged in civil court? 3. Whether suit filed by plaintiff is within limitation?” Ms. Jyotsna Rewal Dua has vehemently argued that the judgments and decrees passed by both the courts below are not sustainable. According to her, plaintiff has become owner by way of 4 adverse possession. She then contended that the Assistant Collector 1st Grade had no jurisdiction to pass orders on the basis of which mode of partition was prepared. Mr. Rajnish K. Lal has supported the judgments and decrees passed by both the learned courts below. 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. The plaintiff has appeared as PW-1. According to him, the suit land is six biswas. He took possession of it in the month of Jeth, 1970. He had sown maize crop. He had engaged two labourers, namely, Akhtar Ali and Chamela Ram. According to him, the defendants treat him as owners. He further testified that the defendants have filed suit for partition before the Tehsildar. He was not informed about the suit by any one. The report of Kanungo in those partition proceedings was wrong. PW-2 Chamela Ram and PW-3 Akhtar Ali have deposed that they have worked as labourers at the time when the plaintiff took possession of the suit land. PW-1/A and PW-1/B are the copies of jambandies for the year 1974-75 and 1979-80 showing the plaintiff in possession as ‘Kabij’ over the suit land and the defendants have been shown as owners of it. Ex. PW- 1/C is the copy of khasra girdawari from 13.4.1981 to 9.10.1986. Ex.P-1 is the copy of Tarika Takseem (mode of partition) in case No. 5/80 dated 16.4.1980 decided on 16.10.1982. Ex. P-2 and P-3 are the 5 copies of orders dated 20.5.1986 and 17.4.1986 passed during the partition proceedings by the Assistant Collector 1st Grade. DW-1 is Mohkam Singh. He is defendant No.1. He has deposed that he is the owner in possession of the suit land and the plaintiff never remained in possession over it. During the partition, Tehsildar and Kanungo had visited the spot and they had verified his possession on the spot. Plaintiff had never raised objection before the Tehsildar. Notice was issued to the plaintiff by the Tehsildar. He did not choose to appear before the Tehsildar. He has further deposed that he has sold the land to defendant No.5 for consideration of Rs. 3,40,000/-. DW-2 Ram Chander and DW-3 Rajinder Parkash had deposed that the defendants are owners in possession of the suit land. DW-4 has been examined by the defendants to prove Ex. DW-1/A to DW-1/K. DW-5 is Sher Singh, Field Kanungo. He has been examined by the defendants to prove his report Ex. DW-4/B. Ex. DW-4/C to Ex.DW- 4/H are the copies of notices issued by the Assistant Collector 1st Grade, Poanta Sahib to plaintiff in partition proceedings. Ex.DW-4/J is the copy of order dated 17.11.1986 of Assistant Collector 1st Grade for preparation of instruments of partition. Ex.DW-4/K is the copy of order vide which plaintiff was proceeded exparte. Ex. DX is the copy of jamabandi for the year 1979-80 showing defendant No.5 as owner in possession of the suit land. Its nature is ‘nakabal’. Ex.DZ is the copy of khasra girdawari from Kharif 1993 to Rabi 1997 in which the nature of the suit land has been shown as ‘nakabal’ and the defendants have been shown as owners in possession of it. According to the plaintiff, he took the possession in the year 1970 in the month of ‘Jeth’. 6 The statutory period of 12 years was to over in the year 1982. However, the defendants had filed partition proceedings before the competent revenue court in the year 1980. These proceedings culminated in the year 1986 when the partition order was passed on 16.10.1986. The Assistant Collector 1st Grade had got the possession verified from the Kanungo. Kanungo has appeared as DW-5. He has proved his report Ex.DW-4/B. Notices were issued to the plaintiff as per Ex. DW-4/C to Ex. DW-4/H. He was proceeded ex parte vide Ex. DW-4/K. He has not contested the proceedings before the Assistant Collector 1st Grade. The orders have been passed by the Assistant Collector 1st Grade under section 125 and 130 of the Himachal Pradesh Revenue Act. He has not assailed the orders passed by the Assistant Collector 1st Grade by way of appeal. In other words, he has accepted the partition order. The version of the plaintiff that he had sown maize crop could not be substantiated by him. In the revenue entries, the nature of the land was recoded as ‘banjar kadim’ and ‘nakabal’. The plaintiff has also failed to prove that he was in possession of the land before 1970. In cross-examination PW-2 has not supported the case of the plaintiff. PW-3 is an interested witness. The defendants have proved their case by leading tangible documentary evidence that they are owners in possession of the suit land. Plaintiff has also not proved how and in what circumstances, entries were incorporated in his name for the first time, as noticed by the learned first appellate court. Plaintiff has not proved the basic ingredients of adverse possession. According to him, he occupied the land in the month of ‘Jeth’ 1970. However, before the period of 12 7 years, partition proceedings were initiated by the defendants, which have culminated in the orders passed by the Assistant Collector 1st Grade in the year 1986. The land was sold by defendant No.1 to defendant No.5. This was also reflected in the jamabandi Ex. DY for the year 1986-87. In this copy of jamabandi, defendant No.5 has been shown in possession of the suit land. The possession was verified, as noticed above, by the Field Kanungo. His report was duly proved by him. Ms. Jyotsna Rewal Dua has cited the following judgments: (i) 1992 PLJ 364, (ii) 1999 (1) PLJ 83, (iii) 2007 (3) PLR 205 and 734, (iv) 2008 (3) CCC 186 and (v) 2008 (4) CCC 558. In view of the observations made hereinabove, ratio of these judgments is not applicable in the present case. Cumulatively, it is held that the plaintiff could not prove his title by way of adverse possession. He has not participated in the proceedings before the Assistant Collector 1st Grade. He has not filed any appeal against the order of partition. PW-2 has not supported the plaintiff. PW-3 is interested witness since the plaintiff has given him piece of land for the construction of house. Plaintiff could not explain the manner in which the entries were incorporated at the first place. Defendants have led cogent and convincing documentary evidence to show their ownership and possession. Plaintiff could not establish that he had sown maize crop since the nature of the land was ‘banjar kadim’ and ‘nakabal’. No other point was urged by the learned counsel for the parties. 8 Accordingly, in view of the discussion made hereinabove, 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. 16.12. 2009. *awasthi*