IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 523 of 2000. Date of decision :6. 5. 2010. Fulma …Appellant. Versus Basia and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Vinay Thakur, Advocate. For the respondents : Mr. Romesh Verma, Advocate for respondents No.1 to 6. Mr. P.K.Sharma, Addl. A.G.with Mrs. Shubh Mahajan, DAG for respondent No.7. Kuldip Singh , Judge (Oral) The plaintiff has come in appeal against judgment, decree dated 1.7.2000 passed by the learned District Judge, Shimla in Civil Appeal No. 5-S/13 of 1998 affirming judgment and decree dated 10.12.1997 passed by the learned Sub Judge, Theog in case No. 74-1 of 1992. 2. The facts in brief are that the appellant had filed a suit for declaration that she alongwith proforma respondents No.8 and 9 are owners in possession of the land measuring 4 bighas 12 biswas out of khasra No. 203/193 situated at Chak Maog, Pargana Rajana, Tehsil Theog, District Shimla. The appellant has also prayed that 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 respondents No.1 to 7 be restrained from interfering in her possession. 3. The further case of the appellant is that her father Shukru and proforma respondents No.8 and 9 had applied for the grant of nautor land measuring 16-7 bighas comprised in Khasra No. 203/193. Haru predecessor-in-interest of respondents No.1 to 6 had also applied for the grant of nautor land measuring 4 bighas 19 biswas out of the aforesaid land 16 bighas 7 biswas. The authorities rejected both the applications on the ground that the land acquired had already been encroached by Shukru. The Deputy Commissioner dismissed the appeal filed by Shukru on 8.7.1970. The matter was carried by Shukru in revision before the Financial Commissioner, who vide order dated 14.7. 1975 set-aside the orders dated 8.7.1970 and 12.9.1969. The Financial Commissioner remanded the case to the Sub Divisional Officer, Theog for fresh decision. The Sub Divisional Officer sanctioned the suit land in favour of respondents No.1 to 6 and remaining land in favour of appellant and proforma respondents No.8 and 9. 4. The further case of the appellant is that proforma respondent No.8 filed revision against the order of Sub Divisional officer, Theog before the Financial Commissioner in which the decision of the Sub Divisional Officer was affirmed. It has been alleged that the order dated 22.11.1991 of the Financial Commissioner is wrong and illegal. The appellant on the suit land has claimed adverse possession of herself and proforma respondents No.8 and 9 through Shukru since the year 1952. 3 5. The respondents No.1 to 6 and 9 contested the suit. The proforma respondent No.8 did not file written statement. The proforma respondent No.9 in her written statement has admitted the case of the appellant. Later on proforma respondents No. 8 and 9 were proceeded exparte. 6. The respondent No.1 claimed that the suit land was granted to Haru on 17.12.1969 with the consent of appellant etc. Shukru had agreed for such grant. The alleged adverse possession of the appellant and proforma respondents was denied. It has also been denied that the decision of Financial Commissioner is wrong and illegal. The respondent No.1 has also taken the objections of non-joinder of necessary parties and the competency of the suit. 7. The respondent No.1 had also filed counter claim on the ground that appellant and proforma respondents are trying to interfere in his possession and in alternative, possession of the suit land was also prayed. 8. In replication, the appellant re-affirmed her claim. In the written statement to the counter-claim, the appellant had denied that the suit land was allotted to Haru with the consent of appellant etc. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has become owner of the suit land alongwith proforma defendants Nos. 8 and 9 by way of adverse possession? OPP 2. Whether the order dated 22.11.91 passed by Financial Commissioner is illegal, null and void, as alleged? OPP. 3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction? OPP 4. Whether the suit in the present form is not competent? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD. 4 6. Whether the plaintiff is estopped from filing this suit, as alleged? OPD. 7. Whether the defendant No.1 is entitled to a decree for permanent prohibitory injunction as claimed? OPD. 8. Relief. The issues Nos. 1 to 6 were answered in negative and issue No.7 in affirmative. The learned Sub Judge dismissed the suit of the appellant and decreed the counter claim of respondent No.1 on 10.12.1997. The appellant and proforma respondents No. 8 and 9 were restrained from interfering in any manner over the land comprised in Khasra No. 218/193 measuring 4 bighas 12 biswas. The judgment, decree dated 10.12.1997 was assailed in appeal and the learned District Judge dismissed the appeal on 1.7.2000. Hence, the plaintiff has come in second appeal which has been admitted on the following substantial question of law:- Whether the Courts below have mis-read and mis- interpreted the evidence on record more specifically the decision of Financial Commissioner Ex.PW-1/A to reject the claim of the appellant-plaintiff that he has become the owner of the land in dispute by way of adverse possession and in accepting the counter-claim of respondent-defendant No.1 granting injunction restraining the appellant-plaintiff and proforma respondents 8 & 9 from interfering in his possession over the land in dispute? 9. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that the courts below have mis-read and mis-construed the evidence on record more particularly order dated 22.11.1991 Ex.PW-1/A of Financial Commissioner (Appeals) while rejecting the 5 claim of appellant that she is owner in possession of land in dispute by way of adverse possession and accepting the counter-claim of respondent No.1, restraining the appellant and proforma respondents No.8 & 9 from interfering on the suit land. The learned counsel for the respondents has supported the impugned judgment, decree. 10. The appellant in the plaint has pleaded that land measuring 4-12 bighas which was sanctioned in favour of Haru is in continuous and hostile possession of appellant and proforma respondents No.8 and 9 and previously in possession of their father Shukru since 1952. The learned counsel for the appellant has submitted that it has been mentioned in the order dated 22.11.1991 Ex.PW-1/A that both the applications filed by Shukru and Haru were rejected by the Revenue Assistant, Mahasu District on 12.9.1969 on the ground that the land applied for was already encroached upon by Shukru. 11. The Financial Commissioner in order dated 22.11.1991 has nowhere recorded a finding that suit land was in adverse possession of Shukru. The Financial Commissioner has recorded a finding that part of the land which had been applied by Shukru had been sanctioned in favour of Haru and same cannot be sanctioned in favour of petitioner Mathu in the order dated 22.11.1991 Ex.PW-1/A. PW-1 Fulma has stated that after the death of her father the suit land had been coming in her possession as well as in possession of Dhani. She has stated that her father had died 25 years ago. She has stated that for the last 25 years, the land is coming in their continuous possession which is open. She has not stated that her 6 father and after his death she has hostile possession over the suit land. 12. The adverse possession must be open with hostile animus to possess adversely against true owner. The ingredients of adverse possession have not been established by PW-1 Fulma. The statement of PW-1 was recorded on 26.2.1997. PW-1 in her statement has not stated that since when her father had been coming in possession of the suit land. In the plaint, the appellant has alleged possession of her father on the suit land since 1952 but in her statement she has not stated that her possession on the suit land through her father is coming since 1952. 13. Ex.PW-1/B is the copy of jamabandi for the year 1986-87 regarding land comprised in Khasra No. 203/193 measuring 16-7 bighas owned by State, in the column of possession, the possession has been shown of the owner and Bashindgan Deh. In the note on Ex.PW-1/B, it has been mentioned that mutation No.120 regarding land comprised in khasra No. 193/165/3/1 measuring 4-12 bighas had been attested on 30.11.1988. Ex.PW-1/C is Jamabandi for the year 1990-91 in which land measuring 4-12 bighas comprised in khasra No. 218/193 has been recorded in the ownership and possession of Haru. There is a note in column of description that vide condition of nautor patta the land cannot be mortgaged, sold and gifted upto 30.11.2007 and the number of mutation of nautor is 120. The presumption of truth is attached to jamabandi Ex.PW-1/C. This presumption has not been rebutted by the appellant. In Ex.PW1/B jamabandi again a reference of mutation No.120 has been given. 7 14. It is thus clear that the suit land was given to Haru as nautor and during his life time Haru remained in possession of the suit land. The respondent No.1 has also proved his possession on suit land. The two courts below have rightly appreciated the material on record. In second appeal, re-appreciation of evidence is not possible. The finding regarding possession of appellant or respondent No.1 on suit land is a finding of fact recorded by two courts below. It has not been established that the view taken by two courts below does not emerge from the material on record nor it has been established that some material evidence has been ignored or the finding recorded by the two courts below is based upon inadmissible evidence. There is no merit in the appeal. The substantial question of law, referred above, is decided against the appellant. 15. No other point was urged. 16. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 6, 2010. (GR)