IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 151 of 2002 Date of decision: 28.12. 2011. Mohar Singh son of Shri Chandu Ram R/o Village Luharwin, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. …Appellant. Versus 1. Shri Durga son of Shri Bardu 2. Shri Ranjhu son of Shri Bardu Residents of Village Barota, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. 3. Sanjiv Kumar son of Shri Nand Lal, minor through his mother Smt. Vidya Devi R/o Village Luharwin, Pargana Tiun, Tehsil Ghumarwin, Distt. Bilaspur, H.P. 4. Anil Kumar son of Shri Tulsi Ram, minor through his mother Smt. Kaushalaya Devi R/o Village Luharwin, Pargana Tiun, Tehsil Ghumarwin, Distt. Bilaspur, H.P. 5. Shri Nand Lal son of Shri Shiv Ram. 6. Shri Tulsi Ram son of Shri Shiv Ram 7. Shakuntla D/o Shri Shiv Ram 8. Smt. Chinti Wd/o Shri Shiv Ram. All residents of village Luharwin, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. ..Respondents. Regular Second Appeal under Section 100 CPC. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Ms. Tim Saran, Advocate vice Mr. Vivek Thakur, Advocate. For the respondents : Mr. R.K.Gautam, Senior Advocate with Mr. Vikrant Chandel, Advocate for respondents No. 1 and 2. None for other respondents. Kuldip Singh , Judge ( Oral ) The defendant No.1 having lost in both the Courts below has filed this appeal against judgment, decree dated 26.2.2002 passed by learned District Judge, Bilaspur in Civil Appeal No. 141 of 1995 affirming 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 judgment, decree dated 19.10.1995 passed by learned Senior Sub Judge, Bilaspur, Camp at Ghumarwin in Case No. 67-1 of 1995/90. 2. The brief facts of the case are that respondents No.1 and 2 have filed a suit for possession and permanent prohibitory injunction against appellant regarding land comprised in Khasra No. 87/1 measuring 0.5 biswas. The further case of the respondents No.1, 2 is that they are tenants on land measuring 10-2 bighas. The respondents No.3 and 4 claimed to have a Will in their favour allegedly executed by late Smt.Parsinu under whom respondents No.1 and 2 also claimed their tenancy. The respondents 3 and 4 have been instigating the appellant to raise construction over the suit land and therefore, appellant started collecting material for construction and has threatened to raise construction on the suit land. The appellant has refused to desist from his unlawful interference and forcible occupation of the suit land. 3. The suit was contested by appellant, he took preliminary objections of maintainability, estoppel, misjoinder and non-joinder of necessary parties. On merits, he denied the claim of the respondents No.1 and 2 and took the plea that he has become owner of the suit land by way of adverse possession. A plea has been taken that appellant has raised construction of a house and courtyard on the suit land. The appellant also raised counter-claim that he may be declared owner in possession of the suit land by way of adverse possession. 4. The respondents No.3 and 4 filed separate written statement and they took preliminary objections of maintainability, limitation, estoppel and improper verification. They took the plea that they are owners in possession of the suit land. The remaining claim of the respondents No.1 and 2 was denied. 3 5. In replication/written statement the respondents No.1 and 2 reiterated their stand taken by them in the plaint and contested the counter claim filed by the appellant. They have denied that appellant has raised construction over any part of the suit land. The respondents No.1 and 2 filed separate replication to the written statement of respondents No. 3 and 4 and reiterated their stand taken by them in the plaint while controverting the case projected by respondents No. 3 and 4. 6. On the pleadings of the parties, the following issues are framed:- 1. Whether the plaintiffs are owners in possession over the suit land as alleged? OPP 2. If issue No.1 is not proved, whether defendant No.1 Sh. Mohar Singh is owner in possession of the suit land by way of adverse possession as alleged? OPD-1. 3. Whether the plaintiffs are entitled for the relief of permanent injunction as alleged? OPP 4. If issue No.3 is not proved, defendant No.1 Sh.Mohar Singh is entitled for the relief of permanent injunction in alternative as alleged? OPD 5. Whether the suit is not maintainable? OPD 6. Whether the plaintiff is estopped to file the suit by his act, conduct, omission and commission? OPD 7. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 8. Whether the plaintiff has no cause of action? OPD 9. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 10. Whether the plaintiff has no locus standi to file the suit? OPD 10-A Whether the plaintiffs are entitled for the relief of possession as prayed for? OPP 11. Relief. The issues No. 1, 3 and 10-A were answered in affirmative, issues No. 2, 4 to 10 were answered in negative and learned Senior Sub Judge, decreed the suit of the respondents No.1 and 2 for possession, the 4 appellant and other respondents were restrained from causing interference in any manner in the ownership and possession of respondents No.1, 2 over the suit land. The learned District Judge on 26.2.2002 dismissed the appeal filed by the appellant herein and affirmed judgment and decree dated 19.10.1995 of the trial Court, hence second appeal which has been admitted on the following substantial questions of law:- “Whether the Courts below have illegally rejected in evidence Tatima Ex.PW-4/A and, therefore, the impugned judgment cannot be sustained?” 7. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the appellant that the two Courts below have wrongly ignored Tatima Ex.PW-4/A in decreeing the suit of the respondents No.1 and 2. It has also been submitted that the suit was filed initially for permanent prohibitory injunction but lateron the plaint was amended and a prayer for possession was also made. It has been contended that the respondents No.1 and 2 have not approached the courts below with clean hands, the submission has been made that the two Courts below misconstrued, misinterpreted the material on record in decreeing the suit of the respondents No.1 and 2. 8. On the contrary, the learned counsel for the respondents No. 1 and 2 has submitted that the suit is based upon title. It is immaterial what was the nature of the suit when it was filed. The appellant has not projected any title over the suit land except adverse possession which he has miserably failed to prove. The appellant in absence of proof of adverse possession cannot resist the suit of respondents No.1 and 2 5 which is based upon title. It has been argued that Tatima Ex.PW-4/A has been issued by Patwari, who has no authority to demarcate the land. The re-appreciation of the evidence is not permissible in the second appeal, the limited question before this Court in the appeal is regarding the Tatima Ex.PW-4/A. The submission has been made for rejection of the appeal. 9. The controversy involved in the suit is very limited. The appellant has taken the plea of adverse possession on the suit land. In the written statement filed by the appellant, it has been pleaded that he is owner in possession for the last more than 30 years and has constructed a structure/house over the suit land in the year 1965. He is using some portion of the suit land as courtyard since then. The appellant appeared as DW-1. He has stated that he has constructed a kitchen over the suit land in the year 1965 and using a portion of the suit land as courtyard. 10. The appellant has not produced any documentary proof from the revenue record that he is in possession of the suit land since 1965. He has not stated that in the year 1965 from where he purchased the material for construction of kitchen nor he examined any mason or labour in support of his contention that kitchen was constructed in the year 1965 over the suit land. The bald statement of DW-1 that he constructed kitchen over the suit land in the year 1965 cannot be believed in absence of other corroborative material on record. 11. The Tatima Ex.PW-4/A has been brought on record in the statement of DW-4 Kartar Singh, Halqua Patwari. In his examination-in- chief, he has stated that he has not verified about the possession. In cross-examination, he has stated that demarcation was given on the spot but no report was prepared. He has also stated that he has not given any 6 remarks regarding the presence of kitchen in the tatima. He has stated that as per record, Ranju and Durga are in possession. 12. In the light of statement of DW-4 Kartar Singh, the appellant cannot take any benefit of Tatima Ex.PW-4/A for more than one reason. In the first instance, Patwari is not competent to give demarcation, he has not verified the possession on the spot and he has clearly stated that as per record Ranju and Durga are in possession. In these circumstances, it cannot be said that the two Courts below have erred in rejecting the Tatima Ex.PW-4/A. The appellant has miserably failed to prove his adverse possession on the suit land. 13. The respondents No. 1 and 2 are the title holders of the suit land. The appellant has no title over the suit land, therefore, he cannot resist the suit for possession filed by respondents No.1 and 2. The appellant is asserting his adverse possession over the suit land, therefore, he has been rightly injuncted not to interfere in the possession of respondents No.1 and 2. The other respondents have not assailed judgment and decree passed by the trial Court. The view taken by the two Courts below emerges from the evidence on record. The substantial question of law, referred above, is decided against the appellant. 14. No other point was urged. 15. In view of above discussion, appeal fails and is accordingly dismissed with no order as to costs. December 28, 20110 ( Kuldip Singh ), (GR) Judge.