IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 101/2002 Reserved on: 26.8.2011 Decided on:16.9. 2011 ___________________________________________________ State of Himachal Pradesh and another. …Appellants. Versus Budhia and another …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. R.P. Singh, Asstt. A.G. For the Respondents : Ms. Shikha Thakur, Advocate vice Mr. K.S. Kanwar, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 7.11.2001 rendered by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No.39-CA/13 of 2001. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondents- plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit against the appellants-defendants (hereinafter referred to as 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 ‘defendants’ for convenience sake) for declaration. According to them, they had been coming in possession of the suit land, detailed in the plaint, since 1998-1999 B.K. Sambwat. Their possession was earlier duly recorded in revenue records as open, hostile, continuous, uninterrupted without hindrance of any person and to the knowledge of the defendants. According to them, they have perfected their title by way of adverse possession over the suit land. Defendant No.2, i.e. Divisional Forest Officer, Forest Division, Renukaji, District Sirmaur in collusion with defendant No.1, i.e. Collector, Sirmaur District has got the names of the plaintiffs deleted from the column of kaifiyat No.19 of Khasra Girdawari vide order dated 20.1.1984 passed by the Collector, Sirmaur District at Nahan without the knowledge of the plaintiffs in an illegal manner and incorporated illegal entries in the copy of jamabandi for the year 1986-87. According to them, the names of the plaintiffs are recorded in the column of possession upto 1984. The plaintiffs have served notice under section 80 of the Code of Civil Procedure upon the defendants. 3. Suit was contested by the defendants by filing joint written statement. Defendants took several 3 preliminary objections, namely, the civil court has no jurisdiction in view of section 171 of the H.P. Tenancy and Land Reforms Act. It was also contended that the suit was bad for non-joinder of necessary parties and the plaintiffs were estopped from filing the suit due to their act and conduct. According to them, the suit was barred by limitation and it was not properly valued. On merits, it was contended that the District Collector, Sirmaur had issued instructions vide order dated 20.1.1984 for checking the revenue entries and to make the records of right according to the factual position prevailing on the spot. Consequently, the Patwari Mauza Kajwa vide rapat roznamcha dated 15.2.1984 while inspecting the fields found the entries of khasra No. 312 against the factual position on the spot and deleted the illegal revenue entries. According to them, plaintiffs under the garb of these illegal entries have recently encroached upon the Government land and as such their possession was of encroachers and they were liable to be evicted. It was denied that the plaintiffs have become owners by way of adverse possession. Learned Senior Sub Judge framed issues on 6.5.2000. He decreed the suit of the plaintiffs. Defendants preferred an appeal before the learned District Judge. 4 He dismissed the same on 7.11.2001. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law on 11.7.2002: 1. Whether the findings recorded by the trial court as affirmed by the learned first Appellate Court are de hors the evidence and perverse? 2. Whether the evidence produced by the plaintiffs was in variance to the pleadings, if so, its effect? 4. Mr. R.P. Singh, learned Assistant Advocate General has strenuously argued that both the courts below have misread and mis-appreciated the oral as well as documentary evidence. According to him, there is no illegality whereby the revenue entries have been altered on the basis of orders passed by the Collector, Sirmaur District on 20.1.1984. He then argued that the plaintiffs have failed to prove the ingredients of adverse possession. 5. Ms. Shikha Thakur appearing vice counsel for the plaintiffs has supported the judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the record carefully. 5 7. Since both the substantial questions of law are interconnected and interlinked, therefore, the same were taken up together for determination to avoid repetition of discussion of evidence. 8. Plaintiff Budhia has appeared as PW-1. According to him, the suit land measuring 4 bighas was in their possession, which was uninterrupted, hostile and continuous on the spot. They were cultivating the suit land. According to him, one and half year ago, they came to know from the forest officials that their names qua the possession of suit land have been deleted. The forest department has threatened them to dispossess forcibly. They verified the facts from the Patwari, who told them that their names qua the possession of the suit land have been illegally deleted. They had issued statutory notice upon the defendants. According to him, the suit land was broken by them and it was made cultivable. He has denied the suggestion that the land was not cultivable on the spot and it was in the shape of ‘Jungle-Jhari’. He denied the suggestion that the suit land was in possession of the State of H.P. Forest Department. No suggestion was given to him whether the plaintiffs were heard before their names were deleted from the records of right qua possession. 6 9. PW-2 Ran Singh has supported the version of PW-1. According to him, the suit land was coming in cultivatory possession of the plaintiffs. The plaintiffs were never prevented by any person from cultivating the suit land on the spot. 10. DW-1 Rajiv Kamal, Patwari, has admitted in his cross-examination that he has seen the suit land in possession of the plaintiffs. 11. DW-2 Lekh Ram, Forest Guard has also admitted in his cross-examination that the plaintiffs were in possession of the suit land and their possession was very old. 12. In Ex.DW-1/D-4, i.e. jamabandi for the year 1962-63, plaintiff Budhia and Bhajnu, father of plaintiff Hukmi are shown in possession of the suit land as Gair Maurushi (non-occupancy) tenants. According to jamabandis for the years 1967-68 Ex.P1, 1972-73 Ex.P- 2, 1977-78 Ex.P-3, 1982-83 Ex.P-4, the suit land was shown in the name of the plaintiffs. These entries were changed for the first time in the jamabandi for the year 1986-87 vide Ex.P-5 whereby the entries of Gair Maurushi (non-occupancy) were changed to forcible possession. The State of H.P. has been shown as owner whereas Forest Department has been shown in 7 possession of the suit land. The plaintiffs have proved Ex. PA and the defendants have also relied upon copy of this order Ex.DW-1/C. It is not the copy of order dated 20.1.1984 received in the office of Tehsildar, Shillai. It is the communication received from the office of District Collector on the basis of which the entries qua possession of the suit land recorded in favour of the plaintiffs were deleted. The possession of the plaintiffs, as noticed above, has been shown since 1962-63 to 1982-83. The defendants have not placed any tangible evidence on record that the plaintiffs were heard before the entries were changed to their detriment. DW-1 Rajiv Kamal in his cross-examination has admitted that except Ex.DW-1/C, there was no other document in the records of department. The plaintiffs were required to be heard before the long standing entries were changed. 13. In jamabandi for the year 1958-59 Ex.DW- 1/D-5, land comprised in Khasra No. 312 measuring 242-13 bighas is shown as “Nakabil”, i.e. not cultivable, however, in the jamabandi for the year 1962- 63 Ex.DW-1/D-4 the suit land comprised in Khasra No. 312 min measuring 4 bighas was shown as “obad doam”. These entries were repeated upto 1982-83 vide Ex.P-4. These entries were changed for the first time; 8 vide Ex.P-5 whereby the nature of the suit land was shown as “Banjar Kadim”. It is thus evident that the plaintiffs were in possession of the suit land. They have broken the suit land and made it cultivable as per records of right with effect from 1962-63 upto 1982-83. The plaintiffs have proved that they were in open, hostile and continuous possession as per statements of PW-1 and PW-2. According to them, the commencement period was 1998-99 B.K. Sambwat. DW-1 Rajiv Kamal and DW-2 Lekh Ram have also admitted that the plaintiffs were in possession of the suit land. The plaintiffs are in possession of the suit land since 1962-63 and the suit has been filed in the year 2000, thus, the possession of the plaintiff over the suit land is more than 30 years old. It is not the case of the defendants that plaintiffs were declared encroachers and the proceedings had been initiated against them. They had been shown in possession in the copy of jamabandi for the year 1962-63. The entries to their detriment were changed vide order dated 20.1.1984 Ex.DW-1/C. The plaintiffs have raised the question of title on the basis of long standing entries, which were duly recorded in the records of right. Thus, the civil 9 court had jurisdiction to entertain, try and decide the suit preferred by the plaintiff. 14. Mr. R.P. Singh has argued that the suit was not within limitation. The entries made in favour of the plaintiffs were altered on the basis of order dated 20.1.1984. There is no material on record to establish that the plaintiffs were heard or issued any notice before these entries were changed. According to the plaintiffs, cause of action has arisen for the first time in the year 1998 when the forest officials visited the spot and threatened to dispossess them. The plaintiffs had issued notice, under section 80 of the Code of Civil Procedure. The suit has been instituted within a period of three years after the cause of action had arisen in favour of the plaintiffs. The defendants have changed the ownership and nature of the suit land without hearing the plaintiffs from “obad doam” to “banjar kadim”. 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. No costs. (Justice Rajiv Sharma), Judge. 16.9. 2011 *awasthi*