IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 572/2001 Decided on: 30.7.2008 Chaudhary Ram and others. …Appellants. Versus Piar Singh. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellants : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondent : Mr. K.D. Sood, Advocate. Rajiv Sharma, J. (Oral) This Regular Second Appeal has been filed against the judgment and decree dated 21.9.2001 passed by the learned District Judge, Mandi in Civil Appeal No. 54 of 1998. The brief facts necessary for the disposal of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for the sake of convenience) filed a suit for declaration to the effect that the suit property as described in para 1 of the plaint was ancestral joint Hindu coparcenary property and was not liable to be attached and sold in the execution of the money decree in view of the provisions contained in Himachal Pradesh Debt Reduction Act or in the 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 alternative, the plaintiffs be declared as owner of the suit land by way of adverse possession with consequential relief of permanent injunction The suit was resisted and contested by the respondent-defendant (hereinafter referred to as ‘the defendant” for the sake of convenience). The trial court on the basis of the oral as well as documentary evidence dismissed the suit on 16.5.1998. The plaintiffs preferred an appeal against the judgment and decree dated 16.5.1998. The learned District Judge Mandi dismissed the appeal on 21.9.2001. Hence, the present Regular Second Appeal by the plaintiffs against the judgment and decree passed by the learned District Judge, Mandi. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the lower appellate court has committed grave illegality and procedural illegality in rejecting the application filed by the plaintiff-appellants under order 23 rule 1 (3) of the Code of Civil Procedure for withdrawal of the suit with liberty to file afresh and further rejecting the application filed by the plaintiffs- appellants under Order 41 Rule 27 of the Code of Civil Procedure for producing the additional evidence? Have not such orders adversely effected the decision of the appeal? 2. Whether both the courts below have committed grave illegality in relying upon the inadmissible evidence, such as copy of the statement of the Bailiff in the absence of proper proof, copies from the revenue record etc. without there being proper proof adduced? Are not the judgments and decrees of both the courts below illegal, erroneous and perverse by putting reliance on admissible evidence which has resulted in grave miscarriage of justice? 3. Whether the findings of both the courts below are erroneous in rejecting the claim of the plaintiffs- appellants claiming the suit property to be ancestral by holding that the evidence up till the great grand-father 3 have not been adduced particularly when the defendant- respondent did not lead any evidence in this regard? 4. Whether both the courts below have failed to appreciate properly the provisions of Himachal Pradesh Debt Reduction Act, whereby the claim of the plaintiffs- appellants ought to have been fulfilled considering that the land in question could not have been attached and sold in execution of the money decree? Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the judgments and decrees rendered by both the courts below are not sustainable in the eyes of law. He also contended that the plaintiffs have never handed over the possession of the suit land to the defendant. In the alternative, Mr. Gupta argued that his client has become owner of the suit land by way of adverse possession. Mr. K.D. Sood, Advocate has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and perused the record carefully. Since all these questions are inter-connected as such to avoid the repetition of discussion of evidence, the same are being taken up together. It is not disputed by the parties that the suit land was attached in execution petition filed by one Sh. Panju against the father of the plaintiffs. It is also not disputed by the parties that the defendant is the auction- purchaser of the suit land and it was sold in execution. The plea of the plaintiffs is that the defendant was not delivered the possession of the suit land. The plaintiffs have produced six witnesses. These witnesses have stated that the plaintiffs are in possession of the suit land after the death of Kaith and this property was acquired by Kaith from his father. The plaintiffs have not produced on record the copy of pedigree table or the 4 mutations vide which the property was inherited from father’s father. It is evident from the language of Explanation II (p) of Section 47 of the Code of Civil Procedure that all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. Now, the Court has to advert to the documentary evidence brought on record by the parties. Ex.DA is a copy of statement of the Bailiff to the effect that the possession of the suit land was delivered to auction- purchaser i.e. defendant. Ex.DB is a copy of mutation which was sanctioned in favour of the defendant after the issue of sale certificate in his favour. Ex.DD is a copy of jamabandi for the year 1986-87. The mutation has been attested in favour of the defendant. Ex.DE is the copy of record of right for the year 1991-92 which also reflects that the defendant is owner in exclusive possession of the suit property. Ex.DC is a copy Missal Haquiat consolidation which also establishes in the remarks column that mutation had been sanctioned in favour of the defendant. Ex.DF is a copy of jamabandi for the year 1975-76 which also shows that the suit land was recorded in the ownership and possession of Kaith but in the remarks column the mutation has been shown to have been sanctioned in favour of the defendant. It is evident from Ex.DW-6/A and Ex.DW-6/B that the possession of the suit land was delivered in favour of the defendant. DW-1 Piar Singh has deposed that he was in possession of the land and it was delivered by the Officer of the Court. Sh. Kaith, father of the petitioner had exhausted all the remedies available to him and the questions raised in the suit were required to be decided by the executing court. The plea that the property could not be attached in view of the Himachal Pradesh Debt Reduction Act was never taken before the 5 executing court. PW-1 Chaudhari Ram, PW-2 Lalman, PW-3 Mohan Singh, PW-4 Bansi Lal, PW-5 Nand Lal and PW-6 Nirmala Devi have only deposed that the plaintiffs were in possession of the suit land. They have never denied the title of the defendant. The plea of adverse possession though taken in both the courts below has not been established. The presumption of truth is attached to the revenue entries made in favour of the defendant. The plaintiffs have failed to prove from which date their possession had become adverse against the true owner i.e. defendant. Both the learned courts have given correct findings on the basis of the evidence led by the parties. There are no questions of law much less any substantial question of law involved in this Regular Second Appeal. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. There shall be no order as to costs. July 30, 2008 (Rajiv Sharma ), J. *awasthi*