IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No.323 of 2004 Date of Decision : December 16, 2009 Rattno …Appellant Versus: Gian Devi & Anr. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Ramakant Sharma, Advocate. For respondent No.1 : Mr. Ajay Sharma, Advocate Sanjay Karol, J. (Oral) This regular second appeal has been filed by defendant No.1 under Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 8.12.2003 passed by the District Judge, Kangra at Dharamshala in Civil Appeal No. 47-I-XIII-02, affirming the judgment and decree dated 30.8.2001 passed by the Sub Judge (II), Nurpur, Distt. Kangra in Civil Suit No. 197/94. The appellant and the proforma respondent No.2 are the defendants and respondent No.1 is the plaintiff and are referred to as such. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Both the Courts below, by way of concurrent findings of fact, have held the plaintiff to be the owner and consequently entitled for a decree for possession of the suit land. The plaintiff filed a suit for possession by way of demolition of a structure built on the land comprised in Khata No. 9 min, Khatauni No. 43, Khasra No. Hal. 376, measuring 0- 02-66 HM, situated in tikka and Mauza Basantpur, Tehsil Indora, Distt. Kangra, H.P. (hereinafter referred to as the suit land). According to the plaintiff she was owner in possession of the suit land. During the settlement operation the defendants got themselves recorded as ‘Kabaz’ in collusion with the Revenue staff and thereafter not only took forcible possession thereof, but in the month of November, 1984 also raised structure thereupon. This was at her back and without her consent. The possession of the defendants over the suit land being illegal, unauthorized and that of a trespasser, she was entitled to the relief prayed for. In opposition, the defendants claimed possession since the time of their predecessors-in-interest, being more than 30 years. Having built a residential house over the suit land, they perfected their title as owners by way of adverse possession. Based on the pleadings of the parties, the trial Court framed the following issues:- “1) Whether the plaintiff is the owner of the suit land? …OPP 3 2. Whether the plaintiff is entitled for the possession of the suit land? …OPP 3. Whether the suit is not maintainable? …OPD 4. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? …..OPD 5. Whether the plaintiff is estopped by her own act and conduct? …OPD 6. Whether the suit is time barred? …OPD 7. Whether the defendants have become owners of the suit land by way of adverse possession? …OPD 8. Relief.” Opportunity to lead evidence was afforded to the parties. Appreciating the material on record, in terms of its judgment and decree dated 30.8.2001, the trial Court decreed the plaintiff’s suit by holding her to be the owner in possession of the suit land and rejected the defendants’ plea of having become owners by way of adverse possession. The findings recorded by the trial Court were affirmed by the lower Appellate Court in terms of its judgment and decree dated 8.12.2003 . The appeal was admitted on the following substantial question of law:- “Whether the findings of the learned trial Court, as affirmed by the learned first Appellate Court, are 4 based on misreading and misinterpretation of the oral as well as documentary evidence on record? I have heard the learned counsel for the parties and perused the record. While dismissing the appeal, the lower Appellate Court recorded the following findings:- “13. But record reveals that this electricity connection and house tax receipts etc. pertained to another residential building erected by the defendants on their owned and possessed land. Ex.P4 copy of jamabandi for the year 1995-96 record, Rattna -defendant No.1 in possession as co-owner of a Gair Mumkin Abadi located on Khasra No.362. This means Rattna -defendant No.1/appellant had his Abadi in Khasra No.362 whereas suit land is comprised in Khasra No.376 which is also recorded as Abadi. In jamabandi Ext.3 for the year 1976- 77 plaintiff herself was recorded owner-in-possession of the suit land and nature of land is recorded as ‘Nehri’. It means in 1976-77 it was cultivatory land. After settlement in 1982-83 nature of the suit land was changed to Gair Mumkin Abadi, showing both defendants in possession but recorded in the ownership of plaintiff. This also reflect that had house on the suit land been erected by the defendants 30 years age then nature of the suit land in jamabandi for the year 1976-77 Ext.P-3 would not have been entered as Nehri (cultivatory land) but it would have been entered as Abadi, as was done after settlement in 1982-83. 15. DW-3 Rattan Chand-defendant No.1 though claimed built house since 30—35 years on the suit land and becoming owner by adverse possession and that 5 paying house tax qua the house, where has also obtained electricity connection. He says, in addition to this house, he has no other house. His such narration is contrary to the entries in jamabandi Ext.P-4. If Gair Mumkin abadi of Khasra No. 362, as depicted in jamabandi Ext.P-4, was possessed by the defendant No.1 as co-sharer, then he could not have his house on the suit land of Khasra No.376, because as per his claim, is having only one house. 16. Hence in the light of aforesaid material on the record, the trial Court rightly held that defendants after 1984 took forcible possession over the suit land and built single room as cow-shed thereon. Residential house of defendants is not located on the suit land but out of it, on owned and possessed land of the defendants. The suit for possession on basis of title was filed by the plaintiff on 20.10.1993. By that time possession of defendants after 1984, had not ripened into adverse title.” In my considered view, there is nothing erroneous about the same. They are based on correct appreciation of complete material on record. Mr. Ramakant Sharma, learned counsel for the appellant has invited my attention to Ext.P-4 to contend that the share holding of Khasra No.362 measuring 85 Sq. yards is of 34,560 shares and the defendant Rattno is owner only to the extent of 135 shares. Therefore, the finding of the lower Appellate Court to the effect that the appellant had a house on Khasra No.362 is evidently erroneous. 6 I am afraid the contention needs to be rejected for the simple reason that in Column No.5 of Ext.P4 itself, it is recorded that the entire land comprising Khasra No.362 is actually in possession of Shri Rattno. The land classified as Abadi by itself is indicative of the fact that there is a house built on Khasra No.362. There is no dispute that defendant No.1 has got only one house. Importantly, the revenue entry Ext.P-4 has not been assailed by the defendants. It is also not their case that the entries have been wrongly recorded. Similarly, the electricity and the house tax bills are not indicative of the fact that they pertain to the defendants structure built on Khasra No.376. There is nothing to prove the dimension of the house. Further Ext.P-3 being the jamabandi for the year 1976-77 indicates that land comprising Khasra No.376, classified as Nehri (cultivable land), was in absolute ownership and possession of plaintiff but however, subsequent entry of the year 1982-83 (Ext.P-2) reflects her to be the owner and defendant Rattno to be in possession thereof. Even the classification of the land was changed from Nehri to Gair Mumkin Abadi. The suit was filed on 20.10.1993. This only falsifies the defendants’ plea of adverse possession. The defendants possession on the suit land cannot be said to be since the time of their predecessors as there is nothing on record to prove the said fact. 7 The plaintiff has been able to prove her case by clear, cogent and reliable material. The Court below, therefore, have rightly come to the conclusion that the house of defendant No.1 is actually built on her own land comprising Khasra No.362 and not Khasra No.376 which is owned by the plaintiff. The testimony of the defendants witnesses, namely, Shri Kashmir Singh (DW-1), Shri Baldev Singh (DW-2) and Shri Rattan Chand (DW-3), no where establishes the defendants possession on the suit land for the last 30 to 35 years. The structure built on the suit land is a shed (Tapri) and not the house which is the evident from the record. Hence, the finding returned by the Court below cannot be said to be as a result of misreading and misinterpretation of oral as well as documentary evidence. Mr. Ramakant Sharma has pressed for an appointment of Local Commissioner for ascertaining as to whether any house is actually built upon khasra No. 376 or not. His request needs to be rejected for the reason that the lower Appellate Court has already dealt with this aspect of the matter and more specifically in para -18 of the impugned judgment. I see no reason to differ with the same. Further, there is no dispute that the plaintiff has only one house which is proved to have been built on khasra No. 362 and not on khasra No. 376. No substantial question of law arises in the present appeal. 8 For the aforesaid reasons, the appeal is dismissed for want of any illegality or infirmity. December 16, 2009. (Sanjay Karol) (rana) Judge.