IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 466/1998 Reserved on: 27.9.2010 Decided on: 8.10.2010 ________________________________________________ Vidya Devi and another. …Appellants. Versus Shri Karta and another. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Rahul Mahajan, Advocate. For the Respondents: R.D. Kaundal, Advocate vice Mr. A.K. Gupta, Advocate. ________________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 1.7.1998 passed by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No.7-N/13 of 1997. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that appellants-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit in 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 the court of Sub Judge 1st Class, Paonta Sahib for permanent injunction. It was averred in the plaint that the plaintiffs are the daughters of late Sh. Tulsi Ram (deceased), who was owner of land bearing Khata Khatauni No. 101/188, Kita 2, Khasra No. 136 measuring 12 biswas in mauza Bharapur, Tehsil Paonta Sahib, District Sirmaur. Respondent-defendant No.1, namely, Karta (hereinafter referred to as ‘defendant No.1’ for convenience sake) owned adjoining land comprise in Khata Khatauni No. 47min/115, Khasra No.133 measuring 6 biswas, referred to as the suit property. Tulsi (deceased) got the suit land exchanged for construction of his house with defendant No.1 in lieu of his own land in Khasra No. 136. Tulsi has expired 21 years ago. Suit property came in possession of his wife Muni Devi, who was living alongwith her daughters, plaintiffs. She also died in November, 1994. Since then, plaintiffs claimed themselves to be the owners in possession of the suit property. Their grievance, in a nutshell, is that defendants want to dispossess them forcibly. Suit was contested by the defendants by filing written statement. Defendant No.1 has denied that he had exchange any land. His simple case is that he gave the suit property to Muni Devi, who was widow, as a licencee for her living around 15 years back, she being a poor and homeless 3 lady. She expired on 3.11.1994. Thereafter he took over the possession of the suit property since he was in possession of the same. The revenue entries showing Muni Devi as ‘Gair Maurusi’ are wrong and fraudulent. Plaintiffs filed replication and the assertions made in the written statement were controverted. The trial court framed issues on 20.4.1995. As per record, defendant No.1 also filed counter-claim on 13.10.1995 whereby he claimed himself to be owner in possession of the suit property and it was alleged that the plaintiffs were threatening to dispossess him. He made prayer in the counter claim for decree of permanent injunction to restrain the plaintiffs from the suit property and in alternative a decree for possession was sought. In written statement filed to the counter-claim, preliminary objections of limitation, maintainability and estoppel were taken up. On merits, the counter-claim was resisted on the same and similar ground on which the averments in the plaint were made stating that 50 years ago, father of the plaintiffs exchanged the suit property with defendant No.1. He had also raised a thatched house on the same and since then plaintiffs have been living in the same even after the death of their father and mother. An additional plea was also taken in case any defect is found in their title on the basis of exchange 4 then they have become owners by virtue of adverse possession. Based on these pleadings additional issues were framed on 19.1.1996. Trial court found that neither exchange nor licence was proved but it has been conclusively proved that plaintiffs have perfected their title by way of adverse possession. The counter-claim was dismissed by the trial court. Defendants preferred an appeal before the learned Additional District Judge, Sirmaur District at Nahan assailing the judgment and decree dated 31.12.1996 passed by the Sub Judge 1st Class, Court No.1, Paonta Sahib in civil suit No. 220/1 of 1994. Learned first appellate court framed the following points for determination: 1. Whether the findings of Ld. Trial court on issues No.1,2,3,4 and 5 framed on 20.4.1995 and issue of adverse possession framed on 19.1.1996 are erroneous and are liable to be set aside. 2. Whether the suit of the plaintiffs is maintainable? 3. Whether the counter-claim filed by defendants is maintainable? 4. final order. 3. Learned first appellate court allowed the appeal on 1.7.1998. Learned first appellate court came to conclusion that the findings of the trial court as to the holdings of the plaintiffs having perfected their title on the basis of adverse possession were not sustainable. The reasoning assigned by learned first appellate court is that the plaintiffs have neither pleaded adverse 5 possession in the plaint nor in the replication. The learned first appellate court has also reversed the findings of the trial court as far as issue of exchange of land is concerned. Hence the present Regular Second Appeal against the judgment dated 1.7.1998. The same was admitted on the following substantial questions of law: 1. Whether the appellate court has erred in dismissing the suit on the ground that there is no alternative prayer for possession without affording opportunity of amending the plaint which could have been allowed by the appellate court. 2. Whether the appellate court has erred in law and i.e. once the title of the plaintiffs is proved the decree for injunction on the basis of exchange should have been passed or even relief could have been modulated? 4. Mr. Rahul Mahajan has strenuously argued that the findings recorded by the first appellate court are not based on correct appreciation of oral as well as documentary evidence. According to him, plaintiffs have led tangible evidence to prove their possession over the suit property. 5. Mr. R.D. Kaundal has supported the judgment and decree dated 1.7.1998 passed by the learned Additional District Judge. 6. I have heard the learned counsel for the parties and have perused the record carefully. 6 7. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 8. In Ex.PA, i.e. copy of jamabandi for the year 1958- 59, one Maharaja Jagat Singh was recorded as owner of the suit property under whom Karta, defendant No.1 was recorded as tenant. He was recorded as occupancy tenant. In jamabandi for the year 1990-91, Ex.PC, Karta-defendant No.1 has been recorded as owner in khasra No. 133 but in the column of possession Muni Devi has been recorded as non-occupancy tenant. In column No. 9, the entry shows that she has been recorded on the basis of exchange inasmuch as the entry is ‘Tabadala Hamra Khatauni No. 188’. In Ex.DW-2/A, Muni Devi has been recorded as non-occupancy tenant under Karta. Defendant No.1 has failed to establish that Muni Devi was inducted as licencee. The plaintiffs have led tangible evidence to establish that the land, in question, was exchanged with the plaintiffs’ father by defendant No.1. She was in possession of the same at the time of her death on 3.11.1994. However, the learned first appellate court has misread and misconstrued the 7 oral as well as documentary evidence produced by the parties as far as possession of the plaintiffs is concerned. 9. PW-1 Vidya Devi has categorically deposed that they were in possession of the suit land. She has denied that defendant was owner of thatched house. She has also denied the suggestion that defendants have occupied the land in question. Learned first appellate court has not read the entire evidence and has only taken one line from the examination-in- chief where the plaintiff No.1 has deposed that she does not want to part with her possession. Moreover, towards the end of examination-in-chief, she has deposed that defendants are bent upon in dispossessing her in order to take the possession. PW-2 Jandu Ram has also testified in examination-in-chief that the plaintiffs are in possession of thatched house. In his examination-in-chief, he has deposed that though the defendants have occupied the thatched house forcibly, however, with the intervention of the Panchayat, possession was restored back to the plaintiffs. Similarly, Bhangi Ram has specifically deposed that the plaintiffs were in possession of the land and thatched house. 10. DW-1 is Ram Krishan. In his cross-examination, he has admitted that as per the revenue record, Muni Devi was 8 shown in possession of the suit property. It is also evident from Ex.PC that Muni Devi has been shown in possession of the suit property. Plaintiffs have led cogent and convincing evidence to establish that they were in possession of the land and thatched house. The findings recorded by the first appellate court to the contrary are liable to be set aside. First appellate court has misread and misconstrued the oral as well as documentary evidence. 11. Accordingly, in view of the observations made hereinabove, the Regular Second Appeal is allowed. The judgment and decree of the first appellate court to the extent whereby the plaintiffs were not found to be in possession are set aside and that of the trial court are restored. The plaintiffs are found to be in possession of the suit property. Defendants are permanently restrained from interfering with the suit land bearing Khasra No. 133 min measuring 6 bighas situated in Mauza Bharapur, Tehsil Paonta Sahib in any manner whatsoever. No costs. (Rajiv Sharma), J. 8.10.2010. *awasthi*