IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 42 of 2009 Date of Decision: 27th April, 2010 Rattan Lal Appellant Versus Nand Lal and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? For the appellant: Mr.K.B.Khajuria, Advocate. For respondent No.1: Mr. Ashwani K. Sharma, Advocate. Sanjay Karol, J. (Oral) 1. The appellant and proforma respondents are the defendants. Respondent No.1 is the plaintiff. The parties are referred to as such hereinafter. The appellant has filed the instant appeal under Section 100 of the Code of Civil Procedure, 1908, assailing the current finding of fact recorded by the Courts below. 2. Plaintiff filed a suit for mandatory injunction and possession. Plaintiff averred in the suit that the defendants had encroached upon his land and raised construction thereupon. 3. The defendants resisted the suit, inter alia, on the ground that out of the suit land 0-3 Biswas and 0-6 Biswas of land was in their possession Whether the reporters of Local Papers are allowed to see the Judgment? 2 and their fore-fathers had constructed house and cow-shed thereupon. The plaintiff’s ownership is disputed. 4. Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is entitled for relief of permanent injunction, as prayed? OPP. 2. Whether the plaintiff is entitled for possession by demolition of the structure, as alleged? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 5. Whether the plaintiff has no cause of action? OPD. 6. Whether the suit is barred by limitation? OPD. 5. In terms of judgment and decree dated 20.9.2000, the trial Court decreed the plaintiff’s suit to the following effect:- “In the light of my aforesaid findings and discussions, the suit of the plaintiff for possession and injunction qua the suit land succeeds and is hereby decreed with cost against the defendants. A decree for possession is hereby passed in favour of the plaintiff and against the defendants qua two portions of the suit land comprising of Khasra Nos.36/1 and 36/2, measuring 3 and 6 biswas respectively as reflected as ‘A’ and ‘B’ in site plan Ext.PW-3/A, and in tatima Ext.PW-1/B, after demolishing the structures raised by the defendants therein. A decree for injunction is also hereby passed in favour of the plaintiff and against the defendants qua the remaining portion of the suit land comprising of Khata/Khatoni Np.19/23 min, Khasra No.86 measuring 4.2 bighas of land situated in Village Kiari, Pargana Tiun, Tehsil Ghumarwin, Distt. Bilaspur, H.P. Decree 3 sheet be prepared accordingly. The file after completion be consigned to record room.” 6. The defendants appeal assailing the same stands dismissed in terms of judgment and decree dated 27.3.2008 passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. in Civil Appeal No.213/13 of 2004/02, titled as Sarwan and another vs. Nand Lal and others. 7. Both the Courts below have held the plaintiff to be owner of the suit land. This fact is evident from the statement of PW-1 as also the revenue record (Ext.PW-1/B). The demarcation report (Ext.PW-1/A) has not been accepted to be correct by the Courts below. To my mind that, however, would not make any difference. The defendants, before the lower Appellate Court raised the plea of adverse possession on the plaintiff’s land. The Courts below have rightly held that no plea of adverse possession was ever taken by the defendants in their written statement, hence, the plea was rightly rejected. 8. Mr.Khajuria, learned counsel for the appellant has emphasized that the suit is barred by limitation. No doubt, the trial Court has found the defendants to be in occupation of the suit land over a considerable period of time, but, however, it could not be pointed out from the record that such possession was hostile qua the original owner. The defendants at best are permissive user of the suit land. Hence, the plea needs to be rejected. 9. The parties have been litigating since the year 1993. They must put an end to this litigation. 10. No question of law much less any substantial question of law arises for consideration in the present appeal. I have perused the record and nothing could be found which would warrant the impugned judgment and 4 decree to be perverse, illegal or contrary to record. Hence, the present appeal is dismissed. 27th April, 2010 (Sanjay Karol) (C) Judge.