IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.25 of 2002. Reserved on:17.06.2008. Decided on: June 19, 2008. Shashi Pal & Ors. …Appellants. VERSUS State of H.P. & Anr. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants: Mr Rajnish K.Lall vice Mr.K.D.Sood, Advocate. For the respondents: Mr A.K.Bansal, Addl.A.G. Kuldip Singh, Judge The plaintiffs are in appeal against judgment, decree dated 15.12.2001 passed by learned District Judge, Bilaspur in Civil Appeal No.60 of 1999 reversing judgment, decree dated 29.4.1999 passed by learned Sub Judge 1st Class, Bilaspur in Civil Suit No.38/1 of 97/94. 2. The facts, in brief, are that appellants filed a suit for possession regarding land comprised in Khasra No.253/185/1 measuring 14 biswas situated in village Gassaur, Pargana Bahadurpur, Tehsil Sadar, District Bilaspur. The case of the appellants is that they Whether the reporters of the local papers maybe allowed to see the judgment?Yes …2… are owners of suit land and respondents had occupied the suit land, raised construction thereon and also constructed a boundary wall. The appellants had requested the respondents many times to vacate the suit land but the respondents failed to vacate the suit land, thereupon notice under Section 80 CPC was issued to respondents and then appellants filed the suit for possession. 3. The suit was contested by the respondents by filing written statement. In the written statement, preliminary objections of maintainability, non-joinder of necessary parties, estoppel and non service of statutory notice under Section 80 CPC have been taken. It has also been submitted that in view of the suit No.38/1 of 97/94 Shashi Pal versus State of H.P. the suit filed by the appellants is barred under Section 10 CPC. On merits, it has been pleaded that respondents are owners in possession of suit land. The residences of the employees of Primary Health Centre, Gassaur are situated on the suit land which were constructed in the year 1960. The possession of the respondents over the suit land is continuous, notorious, peaceful, hostile and adverse to the appellants since 1960. The appellants are no more owners of the suit land. The respondents prayed for dismissal of the suit. The appellants filed replication to the written statement and reiterated their case in the replication. The learned Sub Judge decreed the suit on 29.4.1999 and passed a decree of possession of the suit land in favour of the appellants. The respondents filed appeal against the judgment, decree dated 29.4.1999 which was allowed by learned District Judge and consequently suit of the appellants was dismissed …3… on 15.12.2001. The appellants have come in appeal against the impugned judgment, decree in this Court. The appeal has been admitted on the following substantial questions of law:- i) Whether the suit of the plaintiff was within limitation and the defendant had acquired ownership by adverse possession? ii) Whether the State could be allowed to plead the plea of limitation of adverse possession so as to non-suit the plaintiff on that ground, when the case set up by the defendant was that the property had been donated by Dropadi which plea has been found to be false? 4. I have heard Mr.Rajnish K. Lall, Advocate who appeared on behalf of Mr.K.D.Sood, learned counsel for the appellants and Mr.A.K.Bansal, learned Additional Advocate General for the respondents and gone through the record. It has been submitted on behalf of the appellants that learned District Judge has erred in returning the finding that respondents have acquired ownership of the suit land by way of adverse possession. It has also been submitted that respondents took the stand that suit land was donated by Dropti which fact respondents could not prove. The title of the appellants has been proved on record and, therefore, on the basis of title the appellants are entitled to decree of possession. Per contra, learned Additional Advocate General has submitted that the State has raised construction on the suit land around the year 1960. The failure to prove gift by Dropti to State of the suit land is not of any consequence inasmuch as …4… the State since 1960 as a matter of right with hostile animus has ousted the appellants from the suit land and have become owner by way of adverse possession. Alternatively, the State has raised construction on the suit land with the consent of Dropti predecessor-in-interest of the appellants and, therefore, appellants cannot take back possession of the suit land from the respondents. SUBSTANTIAL QUESTIONS OF LAW NO.(i) & (ii): 5. The substantial questions of law No.(i) and (ii) are interconnected, therefore, both are being disposed of collectively. PW-1 Shashi Pal has stated that they are owners of the suit land on which respondents have constructed a hospital, residential quarters and boundary wall. He has produced copy of Jamabandi Ext.P-3. In cross examination, he has shown his ignorance that the respondents are in possession of the suit land since the year 1960. The learned counsel representing the appellants in the Court below had tendered in evidence tatima Ext.P-7 which was objected to by the other side. 6. DW-1 Sant Ram, Assistant has produced documents Ext.DA to Ext.DF which were objected but this witness was not cross examined. The appellants have filed the suit for possession of land measuring 14 biswas depicted by Khasra No.253/185/1. Ext.P-3 is the copy of Jamabandi 1989-90 wherein Khasra No.253/185 is shown measuring 5-4 bighas. Khasra No.253/185/1 measuring 14 biswas is a part of bigger Khasra No.253/185. The appellants have not identified the suit land by leading legal evidence on record. The appellants through their counsel have tendered tatima Ext.P-7 showing Khasra …5… No.253/185/1 measuring 14 biswas. The tatima Ext.P-7 was objected to by the opposite side when it was tendered in evidence by the learned counsel for the appellants, despite the objection the appellants did not take any step for proving tatima Ext.P-7. Simply tatima Ext.P-7 has been exhibited it does not mean that it has been legally proved on record. The fact remains in absence of proper identification of suit land by legal evidence on record no effective decree can be passed in favour of the appellants and on this ground alone the appellants are not entitled to decree of possession of the suit land. 7. This apart, DW-1 has placed on record documents Ext.DA to Ext.DF. On behalf of the appellants, when these documents were tendered in evidence objection was taken but the witness who tendered these documents in evidence has not been cross examined. DW-1 has produced the documents Ext.DA to Ext.DF from official record. It is not the case of the appellants that documents Ext.DA to Ext.DF are forged and were not written by the concerned persons. The perusal of Ext.DA would show that one Dropti on 19.7.1960 had written to Civil Surgeon Bilaspur that 5 bighas of land was donated by them for construction of buildings of medical and veterinary Departments at village Gassaur. The Patwari of the area had recorded the same in the revenue papers. The Civil Surgeon was requested to start construction work on the land. As per Ext.DB dated 4.2.1961 the building was completed and was in possession of District Medical Officer, Bilaspur. The Civil Surgeon, Bilaspur vide letter dated 18.11.1967 Ext.DF addressed to Deputy Commissioner, Bilaspur requested the transfer of land donated by …6… Smt.Dropti in favour of Medical Department. Ext.DF further reveals that Patwari’s report, owner statement etc. were also sent for doing the needful. The collective reading of these documents makes it clear that Medical Department had constructed buildings on land donated by Dropti. It has been submitted on behalf of the appellants that land donated by Dropti has not been linked with the suit land nor it has been identified. The appellants have proved their title on the suit land, therefore, they are entitled to decree of possession. It has already been held above that for want of identification of suit land by the appellants no effective decree for possession can be passed in their favour. The objection of the appellants that the land, which was donated by Dropti, has not been identified by the respondents, but this objection of the appellants leads to nowhere. It is not the case of the appellants that instead of suit land some other land was donated by Dropti for construction of buildings by Medical Department. In any case, it has been established on record that respondents have constructed their buildings on the suit land around the year 1960 and since then they have ousted the appellants. They have even constructed a boundary wall around the suit land. The buildings constructed on the suit land are being used by the respondents continuously. As per Ext.DF, Deputy Commissioner, Bilaspur was requested on behalf of the respondents to change the ownership of the land over which the respondents have raised their construction in their favour. These acts of the respondents are nothing but their assertion of right of ownership on the suit land. The learned District Judge on the …7… basis of material on record has recorded a finding of fact that respondents have become owners of the suit land by way of adverse possession. The appellants have failed to make out a case for interference. Apart from above, it has come on record that respondents have raised construction on the suit land with the consent of Dropti the then owner of the suit land. The appellants became owner of the suit land much after Dropti. On this ground also, the appellants are not entitled to possession of the suit land. 8. No other point was urged. 9. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. June 19, 2008. ( Kuldip Singh ), J. (soni)