IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No._28 of 1999. Judgement reserved on: 17.4.2009 Date of decision: April 23, 2009. The State of Himachal Pradesh ….. Appellant. Vs. Surat Ram …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Addl. Advocate General. For the Respondent : None. Kuldip Singh, Judge. This appeal has been directed against the judgement, decree dated 13.10.1998 passed by learned District Judge, Solan in Civil Appeal No. 28-S/13 of 1998 affirming the judgement, decree dated 22.12.1997 in case No. 9/XIII of 1996 passed by Assistant Collector Ist Grade, Tehsil Kasauli exercising the powers of Civil Court. 2. The facts in brief are that respondent-plaintiff had approached Assistant Collector Ist Grade, Kasauli under Section 163(3) of H.P. Land Revenue Act, 1954 (for short, the Act), seeking declaration that he has become owner by adverse possession of land Whether the reporters of the local papers may be allowed to see the Judgment? …2… comprised in khasra No. 591, measuring 0-5-8 bighas, situate at village Sheel, Sub Tehsil Krishangarh, Tehsil Kasauli, District Solan. The appellant contested the claim of the respondent. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has been in adverse possession of the suit land for a period of 30 years? 2. Relief. The Assistant Collector Ist Grade answered issue No. 1 in affirmative and decreed the claim of respondent vide judgement dated 22.12.1997 and respondent was declared owner in possession by way of adverse possession of land comprised in khasra No. 591, measuring 0-5-8 bighas. The decision dated 22.12.1997 was assailed in appeal and the learned District Judge dismissed the appeal on 13.10.1998, hence State has come in second appeal, which has been admitted on the following substantial questions of law:- 1. Whether mere construction of a house on Govt. land entitles the plaintiff to become owner by adverse possession? 2. Whether the suit has been decreed by both the courts below without appreciating the revenue record particularly Jamabandi for 1989-90? 3. Whether the trial court has jurisdiction to declare that the land in dispute did not vest in the State under the provisions of the HP Village Common Lands (Vesting and Utilization) Act, 1974? 4. Whether the possession of an individual without there being any evidence of its adverse nature or hostile animus could be declared as perfecting title by adverse possession. …3… 3. I have heard Mr. A.K. Bansal, learned Additional Advocate General for the State and have gone through the record. None appeared on behalf of the respondent. The learned Additional Advocate General has submitted that the two courts below have erred in declaring the respondent owner by way of adverse possession of the land in question. The jamabandi for the year 1989-90 has not been appreciated properly. The Assistant Collector Ist Grade had no jurisdiction to declare that the land in question did not vest in the State. The respondent has not proved his hostile animus on the land in question. 4. The substantial question of law No. 3 is of jurisdiction, therefore, it has been taken first for disposal. The appellant in the reply filed before Assistant Collector Ist Grade has not taken a plea that Assistant Collector had no jurisdiction to give declaration as prayed by the respondent. The appellant in the reply has not denied the jurisdiction of Assistant Collector. The reply does not indicate any plea that the land had vested in the State under H.P. Village Common Lands (Vesting and Utilization) Act, 1974 and, therefore, Assistant Collector is not competent to give declaration. The Assistant Collector has observed in the decision dated 22.12.1997 that house of the respondent was existing prior to the year 1950 on the suit land, therefore, it could not vest in the State under Section 3(2) (c ) of H.P. Village Common Lands (Vesting & Utilization) Act, 1974. The Assistant Collector has not given the declaration that land had not vested in the State. He has just observed that in view of Section 3(2)(c) of the aforesaid Act, the house on the suit land could not vest …4… in the State. The substantial question of law No. 3 does not emerge from the stand taken by the appellant in the pleadings. Therefore, substantial question of law No. 3 is decided against the appellant. 5. The substantial questions of law No. 1, 2 and 4 are taken up together collectively as these are interconnected. PW 1 Surat Ram has stated that house standing on the suit land is very old from the time of his ancestors. He was born in this very house. He has no other house. PW 1 at the time of his statement had given his age 47 years. The house on the disputed land is of stones in mud mortar. PW 2 Liaq Ram, PW 3 Kanshi Ram, PW 4 Dhani Ram, and PW 5 Mathia have supported the case of PW 1. 6. Satya Parkash, Patwari, Jagjitnagar has stated that village Sheel falls in his patwar circle. On khasra No. 591 measuring 0-5-8 bighas Surat Ram has constructed a house which is in his possession. In cross examination, he has not denied that the house is 70-80 years old. He has also stated that Surat Ram had no other house. Rajiinder Prasad, Field Kanungo has also stated that the house is very old and it cannot be said how much old it is. On behalf of the appellant, jamabandi for the year 1989-90 of the land in question has been relied where State has been shown owner of the land in dispute but suit land has not been shown in possession of State, it has been shown in possession of right holders. The appellant cannot take benefit of jamabandi 1989-90 for showing it in possession of suit land. This document has not been proved on record. In any case, the presumption of truth attached to the jamabandi has been rebutted by the evidence led by the respondent. The witnesses of the …5… appellant have also not denied the old possession of the respondent on the suit land in the form of house. It has come on record that the house of the respondent is more than fifty years old and he is residing in that house as of right. The hostile animus on the house and the land in question occupied by respondent is clear from the fact that respondent is residing in the house to the exclusion of others including the appellant. The two courts below have concurrently held that respondent has become owner by way of adverse possession of the suit land, which is a finding of fact. It has not been shown that the two courts below have not considered the vital evidence having effect of tilting the decision or inadmissible evidence has been considered. The two courts below have rightly appreciated the material on record. The substantial questions of law No. 1, 2 and 4 are decided against the appellant. 7. No other point was urged. 8. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. April 23, 2009. ( Kuldip Singh ) (Hem) Judge.