IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.256 of 1998. Judgment Reserved on: 17.04.2009 Date of decision: 25.05.2009. Manohar Dass & Others …Appellants Versus Partap Singh & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellants: Mr.G.D. Verma, Senior Advocate with Mr.Romesh Verma, Advocate. For Respondents 3 and 4: Mr.B.B. Vaid, Advocate. Dev Darshan Sud,J. This is the plaintiffs second appeal against the concurrent findings of the two Courts below dismissing the case of the appellants-plaintiffs herein praying for a decree of declaration that the plaintiffs and proforma defendant Ganga Saran have become owners in possession of the suit land comprised in Khata Khatauni Nos.61 min/105, 7/10, 7/12, 7/13, 63/100, 84/142, 84/143, situated in Up Mohal Shudarang, and Kalpa of Muhal Kalpa, District Kinnaur. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 The plaintiffs pleaded that the parties to the suit are recorded as joint owners in separate possession of land comprised in Khata Khatauni No.60 min/103, 61/105, 62/99, 61/104, 7/10 to 7/13, 63/100, 84/142 to 84/144, situated in Up Mohal Kalpa, Shudarang, JangleMahfhuja Mehduda Chini abal and Radulay of Mohal Kalpa, District Kinnaur, H.P. in the joint possession of the plaintiffs for the last 50 years and the remaining land recorded in Khata No.60 min/103, 62/99, 61/104, 7/11, 84/144, 60/100 in possession of the defendants. The plaintiffs pleaded that they had developed the suit land by spending more than Rs.50,000/- and this land is being possessed adversely by them for the last more than 50 years openly without any intervention of the defendants. The deceased defendant No.1 Chhewang Nargu had filed an application for partition of the land in which the plaintiffs had raised these contentions of private partition and adverse possession, but the Assistant Collector Ist Grade rejected these contentions and ordered partition. This order was assailed before the Collector, who too affirmed the order of the Assistant Collector Ist Grade, which was again reaffirmed by the Financial Commissioner in the revision which was filed. The claim set up by the deceased defendant No.1 Chhewang Nargu was that the suit land is jointly owned and possessed by the parties as co-sharers. There is no proof of private partition. The claim of the plaintiffs that they spent huge amount over the land is not established on the record of the case. 3 The learned trial Court, on the pleadings of the parties, considered the aspect as to whether there had been a private partition between the parties and negatived this contention. On the question of adverse possession also, the learned trial Court decided against the plaintiffs. The order of the Assistant Collector Ist Grade affirmed by the Divisional Commissioner was also held to be legal. The Court held that the parties are co-owners and co-sharers of the suit land and the defendant is entitled to seek partition. Appeal preferred to the District Judge was dismissed. Learned District Judge considered that the suit land was owned by two brothers, namely, Baipur and Shyamjit in equal share. Shyamjit became monk and migrated to Tibet, leaving behind the joint property in the name of his brother Biapur. At that time Sonam Palzor was a minor. Lateron he also proceeded to Tibet to see his father. During the absence Shyamjit and Sonam Palzor, Biapor managed to procure a mutation in his favour with respect to the share of Shyamjit in the joint property on the ground that Shyamjit was not heard for a period of 17 years prior to 18.4.1984 Bikrami and got himself recorded as the sole owner of the entire property as per Jamabandi Ex.PW-1/H for the year 1993-94 Bikrami. When Sonam Palzor returned from Tibet, he filed a Civil Suit to claim his share in the property belonging to his father and an ex-parte decree Ex.PW-1/A dated 21.1.2002 Bikrami was passed by the subordinate Judge, Ist Class, Rampur-cum-Chini declaring him to be the owner of one half share in the property and also declared 4 that entries adverse to the plaintiff be set aside and that the plaintiff will be entitled to get possession of one half share after partition. The appeal was admitted on the following substantial questions of law:- “1. Whether in view of the earlier judgment exhibit PW-1/A, Respondents have ceased to have any right, title and interest over the properties in suit due to bar of limitation because they have filed proceedings for partition after expiry of more than 45 years. 2. Whether the judgment exhibit PW- 1/A, as passed by ld.Sub Judge, Rampur-Chini, due to limitation has become unexecutable? 3. Whether claim of adverse possession has been established on record in favour of the appellants in as much as that their predecessor Shri Baipur claimed himself to be exclusive owner in possession of the land of share of late Shri Shyamjit during the year 1993-94 IBK)? The learned trial Court as well as appellate Court considered in detail the facts holding that no adverse possession has been established on the record and that to establish such exclusive possession, there has to be clear and cogent evidence on record which is lacking. The Court also holds that vide Ex.P-1, 5 Sonam Palzor has been recorded in joint ownership and possession of the suit land as co-owner. The Courts holds that on a careful examination of the oral evidence there is not an iota of evidence on the record to construe ouster as between co-sharers. The mere factum of exclusive possession does not establish adverse possession. The appellate Court holds:- “18. On a careful and anxious consideration of the oral evidence adduced by the parties and in the light of the ratio laid down in each of the above said decisions referred to by the parties, I find that the learned lower court was perfectly justified in holding that the plaintiffs have miserably failed to prove that they were in possession of the suit land adversely to the other co-sharers. Be it stated at the cost of repetition that there is not even an iota of evidence so as to construe ouster as between the co- sharers. The mere assertion of the plaintiffs that they have been enjoying the fruits of the land without any obstruction and hindrance from any corner is not tantamounting to open assertion of hostile title. Since the particulars of so called open assertion of hostile title have not been brought on record, a co-sharer in the absence of evidence of open assertion of hostile title cannot be heard to plead that he was in exclusive possession and enjoyment of the joint property to the knowledge of the 6 other co-sharers. In such view of the matter, there is no scope for holding that the plaintiffs have acquired title by way of adverse possession of the suit land. The finding recorded by the learned lower court under issue No.2 is, therefore, affirmed.” I do not think that it is open to the plaintiffs- appellants to allege that mere non-execution of the decree itself amounts to adverse possession as between co-owners which fact is to be established on the record of the case by strong, clear, cogent pleadings/evidence to show or establish exclusive possession to the ouster of the other co-owner. In this view of the matter, the judgments of the Courts below do not call for any interference. The Courts have also negatived the plea of private partition on the ground that there is no evidence on the record to establish such a finding. These questions are, therefore, decided against the appellants. This appeal is dismissed. There shall be no order as to costs. May 25, 2009. (Dev Darshan Sud) (aks) Judge.