IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 195 of 2000. Date of decision: 28.5.2010. Smt. Premi ….. Appellant. Vs. Gian Chand …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. H.K. Bhardwaj, Advocate. Kuldip Singh, Judge (Oral). The defendant has come in second appeal against judgement, decree dated 10.2.2000 passed by learned District Judge in Civil Appeal No. 165 of 1993 reversing the judgement, decree dated 19.8.1993 passed by learned Sub Judge Ist Class (2), Amb in case No. 92/1992. 2. The facts in brief are that respondent had filed a suit against appellant for declaration that he is owner in possession of land comprised in khasra No. 1776 measuring 0-05-60 hectares, village Dhussara, Tehsil Amb, District Una. The entries in the name of appellant as `Davedar Bai’ are wrong illegal and void with consequential relief of permanent injunction. In the alternative suit for possession in case respondent is dispossessed during the pendency of the suit. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 3. The further case of the respondent is that Kishan Chand brother of respondent had sold land measuring 1-15 kanals being 1/4th share of land comprised in khasra No. 865, 866 measuring 7-2 kanals in 1982-83. The respondent had filed a suit for pre-emption, which was decreed in his favour. The possession of the suit land was delivered to respondent on 17.12.1983 and since then he is coming in possession of the suit land. The appellant has no right, title or interest over the suit land. The appellant in connivance with the revenue staff got herself recorded as `Davedar Bai’ in possession. The khasra No. 2067 has been carved out from old khasra No. 866 during settlement and during consolidation khasra No. 2067 has been assigned new khasra No. 1776. The appellant is threatening to take forcible possession of the suit land. In these circumstances, suit for declaration and permanent prohibitory injunction and in the alternative for possession was filed. 4. The suit was contested by the appellant on the grounds of maintainability, estoppel, jurisdiction. On merits, she admitted that respondent had filed pre-emption suit against her but she never delivered possession of the suit land to respondent. The appellant has pleaded adverse possession on the suit land. On the pleadings of the parties, the following issues were framed:- 1. Whether plaintiff is owner in possession of the suit land? OPP. 2. Whether plaintiff is entitled to the relief of permanent injunction? OPP. 3. Whether civil court has no jurisdiction? OPD. …3… 4. Whether defendant is in adverse possession of the suit land and became owner? OPD. 5. Relief. 5. The issues No. 1 to 3 were answered in negative, under issue No. 4 it was held that appellant is in adverse possession and the suit was dismissed ion 19.8.1993. In appeal, on 10.2.2000 the learned District Judge has reversed the judgement, decree dated 19.8.1993 and declared that respondent is owner in possession of the suit land, the consequential relief of permanent injunction restraining the appellant was also granted in favour of the respondent. Hence, the second appeal, which has been admitted on the following substantial questions of law:- 1. Whether learned first appellate court below misread and mis-appreciated Ex. P-2 vis a vis provisions of order 21 Rule 35 of the Code of Civil Procedure, thereby vitiating the impugned judgement and decree? 2. Whether learned first appellate court below misread and mis-appreciated the provisions of section 32 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 thereby vitiating the impugned judgement and decree? 3. Whether suit filed by the plaintiff is hit by the provisions of section 57 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 thereby vitiating the impugned judgement and decree? …4… 6. I have heard Mr. Ajay Sharma, learned counsel for the appellant and Mr. H.K. Bhardwaj, learned counsel for the respondent and have also gone through the record. The learned counsel for the appellant has submitted that the possession of the suit land even after the suit for pre-emption was decreed in favour of respondent and against the appellant, was not delivered by appellant to the respondent. The appellant remained in possession of the suit land and she has acquired title over the suit land on the basis of adverse possession. He has submitted that respondent himself has admitted that possession was not delivered to him. He has submitted that learned District Judge has not properly appreciated the material on record. Ex. P-2 has been misread and misconstrued. Sections 32 and 57 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (for short, the Act) were not considered by the learned lower appellate court. He has prayed for setting-aside the impugned judgement and decree. 7. The learned counsel for the respondent has supported the impugned judgement and decree. He has submitted that Ex. P-2 fully establishes that possession of the land in dispute was delivered to respondent in pursuance of decree in pre-emption suit which was filed by the respondent against the appellant. He has also submitted that statement of PW 1 Gian Chand is to be read as a whole and learned District Judge after considering the statement of PW 1 Gian Chand and other material on record has recorded a finding that respondent is in possession of the suit land. He has submitted that …5… Sections 32 and 57 of the Act are not at all attracted in the present case. 8. There is no dispute that Ex. P-2 is the warrant vide which possession was to be given to respondent in pursuance of decree in pre-emption suit, which was filed by the respondent against the appellant. There is also no dispute that suit land is mentioned in Ex. P-2. In Ext. P-2 for delivering possession expression `Dakhal malkhana’ has been used. The learned counsel for the appellant has submitted that this expression means nothing more than delivery of symbolic possession of the suit land. PW 1 in his examination-in- chief has stated that he applied for possession and thereafter possession was delivered to him and he came in possession. 9. The learned lower appellate court has considered the statement of PW 1 including his cross-examination and held that appellant has proved his possession on the suit land. The case of the appellant at its best is that actual physical possession of the suit land was not delivered to the respondent vide Ex. P-2. Assuming that actual physical possession was not given and only symbolic possession was given in that case also the respondent came in possession of the suit land. The appellant has put forward her case of adverse possession. Admittedly, prior to the decree in pre- emption suit, she was the owner of the suit land therefore, she cannot claim adverse possession against herself. In view of Ex. P 2, possession was given on 17.12.1983. The suit was filed on 30.6.1992 within 12 years. Therefore, from any angle, the appellant has not acquired title by way of adverse possession. On facts and …6… after appreciation of evidence on record, the learned District Judge has not found the appellant in possession of the suit land. This finding of learned District Judge emerges from the evidence on record. There is no misreading and mis-appreciation of Ex. P-2 and other material on record. The appellant has failed to prove her possession on the suit land, on the contrary, the respondent has proved his possession on the suit land. The substantial question of law No. 1 is decided against the appellant. 10. The respondent has filed the suit on the basis of his title and possession. The implication of Sections 32, 57 of the Act has not been elaborated during the course of hearing. In any case, the suit filed by the respondent and the relief claimed therein are not in any way affected by Sections 32, 57 of the Act. The substantial questions of law No. 2 and 3 are also decided against the appellant. The learned District Judge has rightly appreciated the material on record. There is no perversity in the impugned judgement and decree. There is no merit in the appeal. 11. No other point has been urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to cost. May 28, 2010. ( Kuldip Singh ), (Hem) Judge.