IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 12 of 2006. Reserved on: 11.03.2011. Decided on: 30 .03.2011. ___________________________________________________ Ran Singh and another. … Appellants. Versus Thunia and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant : Mr. K.D. Sood, Advocate with Mr. Mukul Sood, Advocate. For the Respondents : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Kangra at Dharamshala in civil Appeal No.48-N/XIII of 2004, dated 1.10.2005. 2. Material facts necessary for adjudication of this regular second appeal are that the respondents/plaintiffs 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - (hereinafter referred to as ‘the plaintiffs’ for convenience sake) have instituted a suit to the effect that they are co-sharers in the suit land comprised in Khata No.33 min, Khatauni No.43 and Khasra Nos. 60 and 353, measuring 0-08-19 Hectares, situate in Mohal Gatla, Mauza Kukher Khawara, Tehsil Nurpur, District Kangra as per jamabandi for the year 1992-93. It was alleged that the suit land was never given to the appellants/defendants (hereinafter referred to as ‘the defendants’ for convenience sake) nor were they ever inducted as tenants. They were in possession of the suit land since October, 1993, which was illegal and unauthorised. It was alleged that during the settlement proceedings the defendants got themselves recorded as Kabizan over the suit land in connivance with the settlement officials. 3. The suit was contested by the defendants. On merits, it was averred that they were coming in possession of the suit land prior to settlement as owners and it was only during settlement that the settlement officials recorded them in possession and the plaintiffs were shown as owners. The defendants/appellants were ready to exchange the suit land. Defendants also argued that they had become owners of the suit land by way adverse possession being in possession for a statutory period in a hostile, peaceful manner and without interruption, to the knowledge of plaintiffs. Issues were framed by the trial Court on 5.2.2000. The learned trial Court decree - 3 - the suit vide judgment and decree dated 24.1.2004. Defendants preferred an appeal before the learned District Judge, Kangra at Dharamshala. He dismissed the same on 1.10.2005. Hence, this regular second appeal. 4. This regular second appeal was admitted by this Court on the following substantial question of law on 17.8.2006:- “Whether the two courts below have committed serious illegality in appreciating the evidence of the appellants-defendants with regard to their plea of adverse possession and come to a wrong finding that they are not in adverse possession.” 5. Mr. K.D. Sood, learned counsel for the appellant has strenuously argued that both the courts below have committed serious illegality in not appreciating the evidence of the defendants with regard to their adverse possession. 6. Mr. Bhupender Gupta, learned Senior Advocate with Mr. Neeraj Gupta, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the records carefully. 8. Initially this regular second appeal was directed to be tagged with regular second appeal No.189 of 2005. However, during the course of hearing it transpired that the facts of both the appeals are distinct and separate. Even though - 4 - these regular second appeals were heard together, but are disposed by separate judgments. 9. Plaintiff, Thunia has appeared as PW-1. According to him, the suit land is 2 kanals 3 marlas and they are owners of the same. Defendants have forcibly taken possession of the same in October, 1993. Plaintiffs have placed on record the copy of jamabandi for the year 1992-93, Ex.P-1, copy of Missal Hakiat Ishtemal for the year 1985-86, Ex.P-2, jamabandi for the year 1977-78, Ex.P-3. Appellant-defendant, Ran Singh has appeared as DW-1. According to him, they were in possession of the suit land since the time of their forefathers. They consider them selves to be owners in possession of the same. Defendants have placed on record copy of Missal Hakiat Bandobast Jadid for the year 1982-83, Ex.D-1, copy of Misal Hakiat for the year 1985-86, Ex.D-2, copy of jamabandi for the year 1992-93, Ex.D-3 and copy of jamabandi for the year 1997- 98, Ex.D-4. 10. Possession of the defendants was recorded for the first time in the jamabandi for the year 1985-86, i.e. Ex.P-2. Their possession was without any status. The suit was filed in the year 1997. Thus, the period of 12 years has not elapsed. There is no material on record to come to the conclusion that the defendants were in possession over the suit land before 1985- 86. The defendants were required to prove adverse possession by leading clinching evidence that their possession was hostile to - 5 - the knowledge of true owners. Defendant, Ran Singh has deposed that they were in possession of the suit land from the time of their ancestors, but this has not been pleaded in their written statement. The defendants have not given the date from which they were coming in possession over the suit land and from which date they were holding it adversely. In the jamabandi for the year 1977-78, the nature of the land has been recorded as ‘Barani Ek Fasli’. 11. No other point was urged. 12. Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this regular second appeal and the same is dismissed, so also the pending application(s), if any. The interim order dated 3.3.2006, which was made absolute vide order dated 17.8.2006 is vacated. No costs. (Rajiv Sharma), Judge. March 30, 2011. (sck).