IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.73 of 1998. Reserved on: July 22, 2008. Decided on: July 28, 2008 Jatinder Kumar …..Appellant. VERSUS Deepak Kumar …..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Appellant: Mr.Rajnish K. Lall vice Mr.K.D.Sood, Advocate. For the Respondent: Mr.Ajay Goel, Advocate. Kuldip Singh, Judge The defendant Jatinder Kumar is in appeal against the judgment and decree dated 30.7.1997 passed by learned Additional District Judge, Solan in Civil Appeal No.53-NS/13 of 1994/93 affirming judgment, decree dated 15.5.1993 passed by learned Sub Judge 1st Class, Kandaghat in case No.208/1 of 1986. 2. The brief facts, as per pleaded case of respondent / plaintiff, is that he is owner in possession of the land comprised in Khewat / Khatauni No.87 min / 166 min Khasra No.396/1 measuring 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 301 square metres situated in village Thodo as per Jamabandi for the year 1979-80. The adjoining land is owned by defendants and the plaintiff has planted a few plants on the suit land. The defendants have threatened to encroach the suit land and in these circumstances the suit was filed. The suit was contested by defendants by filing written statement and they have pleaded that land measuring 93 square metres is owned and possessed by them and was so found in the previous settlement. This portion of the suit land was duly fenced with barbed wire and the defendants have also planted fruit bearing trees on this part of the suit land which are about 20 years old. It has been pleaded that even otherwise on account of their continuous, open and hostile possession as owners they have become the owners of the same by adverse possession. The objections of valuation, maintainability have also been taken. It has been pleaded that the plaintiff had purchased the land knowing fully that defendants are in possession of the same and, therefore, plaintiff is not entitled to relief claimed. The learned Sub Judge found plaintiff in possession of the suit land and decreed the suit of the plaintiff for permanent prohibitory injunction on 15.5.1993. The decision dated 15.5.1993 was assailed in appeal, during the pendency of appeal Prem Chand original defendant No.1 died and his name was deleted as his son original defendant No.2 was already on record. The learned Additional District Judge dismissed the appeal on 30.7.1997 and in these circumstances …3… original defendant No.2 has filed the second appeal against the impugned judgment, decree which has been admitted on the following substantial questions of law:- (i) Whether in the facts and circumstances of the case the defendant has established that he has become owner of the suit land by way of adverse possession and the ingredients thereof have been proved? (ii) Whether the oral and documentary evidence particularly Ex.PX, PX/1, PX/2, PX/3 and PX/4 have been misconstrued and wrong inferences have been drawn from the facts and circumstances of the case? (iii) Whether the demarcation carried out by the Local Commissioner was in accordance with the High Court Rules and Orders and the instructions of the Financial Commissioner and the boundary dispute had been validly resolved through demarcation? 3. I have heard Mr.Rajnish K. Lall vice Mr.K.D.Sood, Advocate for the appellant, Mr.Ajay Goel, learned counsel for the respondent and gone through the record. …4… Substantial Question of law No.(iii): 4. The trial Court had appointed Local Commissioner on 13.1.1988. The Local Commissioner submitted his report Ext.PX dated 20.5.1988. On 12.9.1988 the learned counsel for the parties made a statement before the trial Court that they do not want to file any objection to the report of the Local Commissioner and accordingly the trial Court confirmed the report of the Local Commissioner. In view of the fact that the parties through their counsel did not oppose the report of the Local Commissioner, therefore, now in second appeal it is not permissible to the appellant to raise the question that the demarcation carried out by the Local Commissioner was not in accordance with the High Court Rules and Orders and the instructions of the Financial Commissioner. Hence, substantial question of law No.(iii) is decided against the appellant. Substantial Questions of law No.(i) & (ii): 5. The substantial questions of law No.(i) and (ii) are interconnected, therefore, both of them are being disposed of collectively. Ext.PX is the report dated 20.5.1988 of the Local Commissioner, Ext.PX/1 and Ext.PX/2 are the tatimas reflecting Naksha Tafawat. Ext.PX/4 is the statement of Jagdish Ram Chaudhary, father of the plaintiff, at the time of demarcation done by the Local Commissioner. Ext.PX/3 is the copy of issues in case No.104/1 of 1981 titled Prakash Wati versus Prem Chand decided on …5… 24.6.1981. In report Ext.PX the Local Commissioner has stated that on Khasra No.396/1/1 measuring 93 square metres the owner of Khasra No.285 Prem Chand, Jatinder as well as plaintiff claim their respective possession but Prem Chand has refused to fix pucca point (Burji). DW-1 Prem Chand in his statement has stated that he is in possession of the suit land since 1910 as owner. He has planted some fruit bearing trees on this land. He has given his age 75 years at the time of making statement on 18.4.1990. In other words, the year of birth of DW-1 comes to around 1915. He has not explained how he is in possession since the year 1910. In his statement he has not stated that earlier to him the suit land was in possession of his predecessors. In cross examination, he has stated that he does not have any proof of planting the trees on the suit land. He has not placed any document of title on record to show that he is having independent title on the suit land even though in his statement he has asserted that right from the beginning he is in possession of the suit land as owner. He has also stated that the settlement staff told him in the year 1970 that the suit land was owned by Prakash Wati. He has further stated that he is in possession of the suit land and he considers himself owner of the suit land. The adverse possession is to be clearly pleaded and proved. The statement of DW-1 does prove his adverse possession on the suit land. In his statement, he has nowhere stated that he remained in adverse possession of the suit land with the …6… intention to possess the suit land adversely to the ownership of the rightful owner. He has stated that he is in possession of the suit land and he considers himself as its owner. In Konda Lakshmana Bapuji versus Govt. of A.P. and others, (2002) 3 SCC 258, the Supreme Court has held that mere possession of land, however, long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the tile of the true owner. DW-1 has not uttered a word in his statement to show his animus to hold and possess the suit land adverse to the tile of the true owner. The two Courts below have concurrently held against the plea of adverse possession of the appellant / defendant. The learned counsel appearing on behalf of the appellant has failed to point out how the two Courts below have misconstrued and misinterpreted Ext.PX, Ext.PX/1, Ext.PX/2, Ext.PX/3 and Ext.PX/4. DW-1 Prem Chand himself has not proved the ingredients of adverse possession in his statement on the suit land. Thus, the appellant has failed to make out any case for interference. The substantial questions of law No.(i) and (ii) are decided against the appellant. 6. No other point was urged. 7. The result of above discussion, the appeal fails and is accordingly dismissed. July 28, 2008 ( Kuldip Singh ) (soni) Judge …7…