IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 5 of 1996. Reserved on: 29.10.2008. Decided on: 12.11.2008. Anant Ram. … … Appellant. Versus Tek Ram and another. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant: Mr. Ramakant Sharma, Advocate. For the Respondents: Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree of the learned District Judge, Shimla passed in Civil Appeal No.81-S/13 of 1993, dated 22.8.1995. Brief facts necessary for adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for redemption of mortgage in the Court of learned Sub Judge 1st Class (4), Shimla pleading that the suit land comprised in Khasra No.67 measuring 17 biswas in Khata/Khatauni No.10/14 min in Jhakri Nichli was previously owned by one Shri Chaitia Whether reporters of local papers may be allowed to see the judgment? No. - 2 - son of Shri Kundan. In February, 1961 the suit land was mortgaged in favour of Shri Ram Saran, the respondent/defendant (hereinafter referred to as the defendant for convenience sake) by Shri Chaitia for Rs.30/-. Shri Chaitia was succeeded by his son Shri Deep Ram from whom the plaintiff purchased the suit land. In December, 1990, the plaintiff asked the defendant to redeem the suit land. The suit was resisted by the defendant. The case set up by the defendant was that the plaintiff was trying to take undue advantage of wrong revenue entries. In fact, according to defendant, he purchased the suit land in the year 1955 for rupees 200-/ from late Shri Chaitia. Thereafter he became owner of the suit land. In alternative, the defendant has taken the plea of adverse possession. The learned Sub Judge dismissed the suit on 30.6.1993. The plaintiff preferred an appeal before the learned District Judge, Shimla. The learned District Judge, Shimla dismissed the appeal on 22.8.1995. This appeal is directed against this judgment and decree dated 22.8.1995 passed by the learned District Judge, Shimla. This regular second appeal was admitted on the following substantial questions of law:- 1. Whether the impugned judgment and decree is the result of misreading, misinterpretation as well as mis-appreciation of documents Ext.PA, Ext.D1 to D7 ? 2. Whether the findings of both the courts below are against the pleadings as well as evidence inasmuch as can a suit be decreed for adverse possession when neither there is any pleadings nor evidence to that effect? 3. Whether the impugned judgment and decree is result of non- consideration of oral evidence, that is, statements of PW1 and PW2 ? - 3 - 4. Whether the impugned judgment and decree is the result of non-consideration of the provisions of order 7, C.P.C. ? Mr. Ramakant Sharma has strenuously argued that the judgments and decrees passed by both the Courts below are not sustainable in the eyes of law. He has relied upon revenue entries whereby defendant’s status has been shown as mortgagee. Mr. G.D. Verma, learned senior counsel has supported the judgments and decrees passed by both the Courts below. He has primarily relied upon Ex.D-2 and Ex.D-3 whereby he defendant has been shown as vendee of the property. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected, they are taken up together for discussion. PW-1 had deposed that in the year 1961, the suit land was mortgaged by Shri Chaitia in favour of defendant for Rs.30/-. This land was purchased by him after the death of Shri Chaitia from his son Shri Deep Ram. He was entitled to redeem the suit land as mortgagor. PW-2 Shri Deep Ram has supported the version of plaintiff. The defendant has appeared as DW-1. He has proved Ex.D-1 to Ex.D-6 and mutation Ex.D-7. It is evident from Jamabandi Ex.D-2 for the year 1956-57 that the possession of the defendant over the suit land was recorded as a vendee. The same entries continued in Ex.D-3, jamabandi for the year 1960-61. However, in jamabandi Ex.D-4 for the year 1964-65, the defendant was recorded in possession as mortgagee. The plaintiff has not explained how this entry has been changed from “vendee” to “mortgagee”. No mutation as to the alleged mortgage was produced or proved by the - 4 - plaintiff. There is no mention of mutation in the relevant jamabandis. The plaintiff has failed to establish that he had purchased the suit land from Shri Deep Ram after the death of Shri Chaitia. Consequently, he cannot be held to be the mortgagor. The defendant has also failed to prove by leading any tangible evidence that he had purchased the suit land in the year 1955. However, the fact of the matter is that he remained in possession of the suit land since 1955 onwards and his possession was also recorded over the suit land since 1956-57. Initially his possession was recorded as vendee, however, since 1964-65, his possession was recorded as mortgagee. It has come in the statement of DW-1 that he remained in possession of the suit land and no objection was ever raised by the plaintiff. He had been raising crops on this land. Though the defendant has failed to prove that he has purchased the suit property from Shri Chaitia, however, it has come in oral and documentary evidence that he remained in possession of the suit land since 1955 onwards and has perfected his title by way of adverse possession after the expiry of 12 years. The findings recorded by the Courts below are based on true appreciation of facts. Therefore, no interference is warranted by this Court. Consequently, in view of the observations made hereinabove, there is no substantial question of law involved in this regular second appeal and the same is accordingly dismissed. No order as to costs. November 12, 2008. (Rajiv Sharma) (sck). Judge.