1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 80 of 1998. Reserved on : 30.7.2008. Date of Decision: 13th August ,2008 ____________________________________________________________ Smt. Reshnau and others. Appellants. Versus State of H.P. and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Sanjeev Kuthiala, Advocate. For the respondent No.1: Mr. J.S. Guleria, Law Officer. _________________________________________________________ Surinder Singh, J This second appeal has arisen from the judgment and decree passed in Civil Appeal No. 39-D/13 of 1996 decided on 17-1-1998 by the learned District Judge whereby he affirmed the judgment and decree passed by the learned trial Court dismissing the suit of the appellant seeking declaration with a consequential relief of injunction qua the suit land. The instant appeal was admitted on the following substantial questions of law :- 1. Whether on a proper construction of the life certificate of the house Ext. PW2/1 as also the statement of Expert PW2 Bali Ram it stood established on record that the house was made 40 years back and as such the ingredients of adverse possession having been made out the plaintiff had become owner? Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 2. Whether the oral and documentary evidence has been properly appreciated in its proper perspective especially the statement of PW1 Sunder, PW2 Bali Ram, PW3 Gorkhu Ram, PW4 Adi Ram, PW6 Mast Ram as also the revenue documents PW1/C to PW1/O? 3. Whether the plaintiff being Makbuza Khud Ba Bartan Bashindgan Deh with respect to Khasra No. 26 and the owner of Kh. No.24 had the right over Kh. No. 26 which had matured into ownership. 4. Whether the plaintiff being the Adana Malik had become the owner of the suit land after the abolition of the Allah Malik rights in accordance with the law? 5. Whether the judgment of the ld. Courts below are vitiated for not framing of proper issues from the record, evidence and the pleadings?”. During the pendency of the appeal, the sole appellant Sunder had died and vide order dated 2.5.2006 passed in CMP (M) No. 755 of 2005, his legal representative his son Lekh Ram was ordered to be brought on record and substituted in his place. Heard and gone through the record. Substantial question No.1 to 5. All the above questions are inter-connected, therefore taken up together for its decision. In brief, the facts giving rise to the present appeal are that on 29.1.1988, the Patwari Halqua found the encroachment on Khasra Number 26 measuring 0-4 Biswas, a Government land in village Harda, Tehsil Arki, made by Lekh Ram, the son of the original plaintiff named Shri Sunder Singh by raising a shed. As such, the encroachment proceedings 3 were initiated against him under Section 163 of the H.P. Land Revenue Act. He was ordered to be evicted. His appeal was rejected and finally his revision petition was also dismissed by the Financial Commissioner on 6.9.1980. On 20.7.1989, both Sunder Singh the original plaintiff and Lekh Ram his son filed the civil suit before Sub Judge Arki against the State of Himachal Pradesh which was registered as suit No. 110/1 of 1989, seeking the relief of adverse possession qua khasra number 25 and 26/1 measuring 1 biswa, alleging that they have an old house, standing on the suit land and challenged the eviction order against Lekh Ram. Whereas, the State alleged encroachment on Govt. land bearing khasra number 26 above to the extent of 0.4 Biswas and proved the fact of eviction order passed against Lekh Ram. The said suit was dismissed vide a detailed judgment Exhibit-P1. In appeal against the said judgment and decree, plaintiffs sought permission to withdraw under order 23 Rule 1 C.P.C. with liberty to bring a fresh suit, as there was a formal defect in so far as the State was not properly made a party. The learned District Judge felt satisfied with the plea and permitted to withdraw the suit giving liberty to both the plaintiffs to bring a fresh suit on the same cause of action, vide his order Exhibit PW1/A dated 18.9.1992. On 14.10.1992, only Sunder Singh plaintiff filed the present suit against the State impleading his son Lekh Ram as proforma defendant along with two other brothers. He averred that about 40 years ago, he along with his brothers Ram Saran and Gita Ram assisted his father Kadaru to construct the house on khasra number 24 and 26, over an area of 0-4 Biswas. In the earlier suit, it was khasra number 25 and 26/1 now, he has pleaded that it was over khasra number 24 and 26. He further pleaded that after the partition it fell in his share the possession of “Makbuza Khud Ba Bartan Bashindgan Deh” because the land was in his possession as owner by way of construction of the house thereon. In the alternative, he 4 claimed adverse possession to the extent of 4 biswas over khasra number 26. It is alleged that the Assistant Collector 2nd Grade Arki wrongly proceeded against his son Lekh Ram, proforma defendant No.2, under Section 163 of the H.P. Land Revenue Act thus wrongly evicted Lekh Ram. Dismissal of appeal by the Sub Divisional Collector on 3.9.1998, order passed by the Divisional Commissioner as also the order of the Financial Commissioner dated 6.8.1990 were wrong and non-est on the right of the plaintiff. The suit was resisted and contested by the respondent-State. In the written statement, the preliminary objection regarding the maintainability of the suit, jurisdiction of the civil Court and non-compliance of notice under Section 80 of the Code of Civil Procedure vis-à-vis limitation, valuation and res-judicata were taken and on merits, the State take up the pleas that Lekh Ram had encroached upon the land of the Govt. and was ordered to be evicted. His appeals and revision etc were dismissed and lost right up to the Financial Commissioner. Now the round of litigation has been started by his father when he failed to get the favourable order from the revenue Courts. The adverse possession was also denied. On the pleadings of the parties, the learned trial Court framed the following issues:- “1. Whether the plaintiff and proforma defendants are owners in possession of the suit land, as alleged? OPP. 2. Whether the plaintiff and proforma defendants have become owners in possession of the suit land by way of adverse possession, as alleged? OPP. 3. Whether the order dated 10.3.88 passed by Assistant Collector IInd Grade, Arki is wrong and illegal, as alleged ? OPP. 4. Whether the suit is not maintainable in the present form? OPD. 5 5. Whether this Court has got no jurisdiction to entertain and dispose of the present suit? OPD. 6. Whether the suit is bad for non-compliance of provisions of Section 80 CPC? OPD. 7. Whether the suit is time barred? OPD. 8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction ? OPD. 9. Whether the suit is barred by principle of resjudicata? OPD. 10. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD. 11. Relief. Both the parties led their evidence and after hearing the parties and upon going through the record, learned trial Court held that neither the plaintiff nor the proforma defendants were owners in possession of the suit land as alleged nor there was any convincing and consistent evidence holding the plaintiff to be in adverse possession of the suit land, as such dismissed the suit. The judgment and decree of dismissal was assailed before the learned District Judge by the plaintiff on the ground that the learned trial Court wrongly brushed aside the plea of family settlement and also took a new plea which was not taken before the learned trial Court that as per the revenue record, initially the land was shown to be owned by Raja of Arki and he was recorded as “Allah Malik” and the residents of the village were recorded as “Adana Malik”. When the rights of allah malik were extinguished by operation of law, ‘adana malik’ became owners of the land, under this situation, the predecessor-in-interest of the appellant became owners and the revenue records which was changed in the name of the State Government, was wrong which fact was ignored by the trial Court and even the alternative plea raised by the plaintiff that he had 6 become owner in possession of the suit property by adverse possession was also over-looked. The learned District Judge re-appraised the evidence on record and took the note of the above facts of encroachment and filing of the earlier suit and withdrawal thereof, wherein no such plea of ‘Allah Malik’ and ‘Adna Malik’ was taken, dismissed the appeal. Since there was no plea before the trial Court nor the plaint was amended at any point of time, the first appellate Court was not bound to give any finding to that effect. Even the plaintiff has failed to connect the suit land with the Misal Hakiat Bandobast Exhibit PW1/J and PW1/H. Therefore, in the absence of it, no relief could have been granted even by the appellate Court to the plaintiff declaring him the owner as prayed for. The plaintiff has failed to link the suit land with the Misal Hakiat Bandobast. Therefore, there is no question that the plaintiff was the “Adana Malik” and became owner of the suit land after abolition of the rights of “Allah Malik”. Further, the plaintiff has failed to show that he is the member of the Proprietary Body of that village to examine his plea that he being “Makbuza Khud Ba Bartan Bashingdan Deh” with respect to the suit land, his possession has matured into the ownership. There is only one Jamabandi Exhibit PW1/C with respect to khasra number 24 wherein the plaintiff has been shown to be one of a co-sharer in five biswas of land which has a gair-mumkin Dukan. Except this there is no other revenue record showing that he is a member of the Proprietary Body of that village. Therefore, he cannot be said to have become the owner of the suit land by any stretch of imagination even on the basis of the above entries. Further, the plea of adverse possession raised in alternative was neither taken by Lekh Ram in the proceedings for ejectment before the revenue Courts nor this plea is borne out from the evidence in the instant case filed by Sunder Singh, for the reason, firstly that the plaintiff has not 7 admitted the defendant-State to be the owner of the suit land which is sine-qua-non, secondly, he did not depose about any of the essential ingredients of adverse possession while leading evidence. Thirdly, he and his witnesses have failed to prove that his possession was adverse, exclusive, continuous, visible, distinct and hostile to the original owner. In other words, he failed to prove his possession nec vi nec claim nec precario. The issues framed on record arising from the pleadings of the parties cover the entire controversy. Therefore, in these circumstances, neither the statement of Bali Ram (PW2) the J.E. nor the life certificate Exhibit PW2/1 issued by him could prove the adverse possession of the plaintiff. Otherwise also, it is not borne out from the record. The judgment and decree passed by both the courts below are based on the proper appreciation of evidence, which requires no interference. The ld. District Judge was not bound to give the findings on the point raised in the appeal when not pleaded before the trial Court. No other point urged. Therefore, for the reasons aforesaid, I do not find that any substantial question did arise in this appeal on merits. Accordingly, the appeal is dismissed with costs throughout. (Surinder Singh) Judge. August 13, 2008. (bm)