IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 4/1999 Reserved on : 9.10.2009 Decided on:19.10. 2009 Mahinder Singh. …Appellant. Versus Dalipu alias Dalip Singh. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. K.D. Sood, Advocate. For the Respondent : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 28.10.1998 passed by the learned Additional District Judge (I) Kangra at Dharamshala in Civil Appeal No. 27-J/98. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit in the court of learned Sub Judge 1st Class, Jawali, District Kangra for possession. In the suit, the plaintiff claimed possession of the land comprised in Khata No. 32 min, Khatoni No. 86, khasra No.13 measuring 0-04-59 hectares situated in 1 Whether the reporters of Local Papers may be allowed to see the judgment?. No. 2 Mohal Kut, Mauza Sunet, Tehsil Jawali, District Kangra, Himachal Pradesh, more specially, described in the copy of Missal Haquiat for the year 1984-85. It is alleged that prior to the settlement operation, the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) never remained in possession of the suit land nor he was ever allowed to cultivate the suit land in any capacity but the defendant, who is a very clever and forceful person, during the settlement operation, got himself recorded as ‘Kabiz’ of the suit land in collusion with the settlement officials and thereafter took possession of the same in the first week of July, 1985. The suit was contested by the defendant. He has pleaded that the plaintiff has lost the title to the suit land by way of adverse possession. The suit land is in his exclusive, open and hostile possession since the year 1950. The learned Sub Judge 1st Class, Jawali decreed the suit on 24.2.1998. The defendant preferred an appeal before the learned Additional District Judge (1), Kangra at Dharmashala. He allowed the appeal on 28.10.1998. This Regular Second Appeal has been directed against the judgment and decree dated 28.10.1998 passed by the learned Additional District Judge (1), Kangra at Dharamshala. The Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the dismissal of the previous suit between the parties as having abated can be pressed into service against the plaintiff in the absence of specific pleading having been raised in this regard by the defendant in his written statement? 2. Whether the presumption of truth attached to the revenue record stood rebutted and the plea of the defendant as to adverse possession, who was co-sharer with the plaintiff, can be accepted?” 3 Mr. K.D. Sood, Advocate has vehemently argued that the judgment and decree passed by the learned Additional District Judge (1), Kangra at Dharamshala is not sustainable in the eyes of law. According to him, the learned Additional District Judge has misconstrued and misinterpreted the documentary as well as oral evidence. He then contended that the judgment of the learned Sub Judge dated 24.2.1998 be restored. Mr. Bhupender Gupta, Senior Advocate has supported the judgment and decree passed by the learned Additional District Judge (1), Kangra at Dharamshala. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter- connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. The plaintiff has appeared as PW-1. The defendant has produced two witnesses. The predecessor-in-interest of the plaintiff has purchased the suit land alongwith other land through auction sale on 28.12.1959. The mutation of ownership was recorded and attested in the name of Sh. Sher Singh on 19.4.1962. In the copy of jamabandi for the year 1963-64 Ex. D-3, Sher Singh, predecessor-in-interest of the plaintiff has been shown as owner alongwith other co-sharers of the suit land whereas the land has been recorded in possession of one Sh. Mehar Singh in the capacity of non-occupancy tenant on payment of rent. In Rojnamacha dated 15.6.1966 bearing No. 438 Ex.P-3, the possession is shown to have been delivered in favour of Sher Singh on the basis of the order passed by the Assistant Collector 2nd Grade, Nurpur. In the jamabandi for the year 4 1968-69 Ex.D-4, Sher Singh has been recorded as owner in possession of the suit land. After the death of Sher Singh vide mutation No. 450, plaintiff alongwith other co-sharers has been recorded as owner in joint possession of the suit land. In Ex. P-1 and D-6, copies of Missal Haquiat Bandobast Jadid, the plaintiff alongwith his other co-sharers has been recorded as owner of the suit land, but the defendant has been recorded in possession of the suit land as ‘Kabiz’. The defendant has also produced in evidence copy of order dated 6.6.1972 Ex.D-2. The predecessor-in-interest of the plaintiff had instituted a civil suit No. 109/1966 against Khazan Singh, paternal uncle of Dalipu defendant and Rattan Singh son of Teja Singh. The suit was dismissed as having been abated. PW-1 has admitted that Khazan Singh is the uncle of the defendant. The suit was filed for possession against the defendant in which the predecessor-in-interest of the plaintiff, Sher Singh had admitted the possession of the suit land with defendant and Khazan Singh. No appeal has been filed against the order Ex.D-2 nor the same was got set aside under order 22 rule 9 of the Code of Civil Procedure. The defendant has taken up the plea of adverse possession over the suit land. He has examined Sh. Gurbachan Singh, his power of attorney as DW-1. He has categorically testified that the suit land is in possession of the defendant since 1950 and the possession was never relinquished by the defendant. He has further testified that the defendant did not occupy the suit land during the settlement operation in the year 1984-85. He has also testified about the civil suit No. 109/1966, which was dismissed on 6.6.1972. In his cross-examination, he has denied that the predecessor-in-interest of the plaintiff, Sher Singh, was ever put in possession of the suit land by the revenue authority and earlier Sh. Mehar Singh was in possession of the 5 suit land. He has further stated in his cross-examination that the case was filed by Sher Singh against his father. DW-2 Gian Chand has supported the version of DW-1. He has deposed that the defendant is continuing in possession of the suit land since 1950. The plaintiff has not led any evidence that after the dismissal of civil suit No. 109/1966, he or his predecessor-in-interest, Sher Singh, ever came in possession of the suit land or any legal action was ever taken by them to dispossess the defendant from the suit land. The learned Additional District Judge has correctly appreciated the oral as well as documentary evidence. He has come to a just conclusion that once the suit of the plaintiff was dismissed having been abated, he could not institute fresh suit on the same cause of action. The defendant has proved the basic ingredients of adverse possession. The plaintiff has failed to prove that the defendant was ever dispossessed from the suit land. Accordingly, in view of the observations made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. 19.10. 2009 (Rajiv Sharma ), J. *awasthi*