IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 10 of 2001. Reserved on : 16.9.2011. Decided on : 31.10.2011. __________________________________________________ Smt. Kala Devi … Appellant. Versus Shri Puran Chand … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Dharamvir Sharma, Advocate. For the Respondent : Mr. Bhupinder Gupta, Sr. Advocate with Mr. Ajit Jaswal, Advocate. ___________________________________________________________ V.K. Sharma, Judge. The present regular second appeal is directed against judgment and decree dated 30.9.2000 passed by the learned Additional District Judge, Mandi, H.P. in Civil Appeal No. 7 of 1999, Puran Chand versus Smt. Kala Devi, whereby the judgment and decree dated 24.11.1998 of the learned Sub Judge Ist Class, Court No.1, Mandi, H.P. decreeing the suit for declaration with consequential relief of injunction filed by the appellant herein as plaintiff against the respondent being the defendant have been reversed and the suit dismissed. 2. For the sake of convenience, the parties to the present appeal shall hereinafter be referred to by their status in the learned trial Court, that is, plaintiff and defendant, respectively. 3. In brief, the case of the plaintiff is that the land bearing Khewat/Khatauni No. 61 min/64 min, Khasra No. 110/1, measuring 0-5-5 bigha, situate in Mauza Nalsar, Illaqua Balh, 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Tehsil Sadar, District Mandi, H.P., vide Misal Haquiyat Consolidation for the year 1993-94, which shall hereinafter be referred to as the ‘suit land’, is recorded in the ownership and possession of the defendant, which entries are wrong, incorrect, illegal and void. Along with the plaint, the plaintiff has enclosed copies of Misal Haquiyat Consolidation 1993-94, application for demarcation moved by the defendant, demarcation report and Aks Tatima issued pursuant thereto. 4. According to the plaintiff, the suit land is part and parcel of Khewat/Khatauni No. 32/33, Khasra No. 111 (old Khasra No. 93) at present measuring 3-4-8 bigha, which is owned and possessed by the plaintiff as is evident from the boundaries (Mainds) and demarcation report referred to hereinabove. 5. The further case of the plaintiff is that the suit land coupled with land bearing Khewat/Khatauni Nos. 5 min/5 min, Khasra No. 102, measuring 0-12-10 bigha and land bearing Khewat/Khatauni No. 32/33, Khasra No. 111 (old Khasra No. 93) at present measuring 3-4-8 bigha described in para 4 above, formed one Khasra No. 35, measuring 4-4-0 bigha before the present settlement. 6. It is further averred that to the utter surprise of the plaintiff, the area of Khasra No. 35 which was 4-4-0 bigha before present settlement, was reduced to 3-16-18 bigha, while the area of corresponding Khasra No. 110 (old Khasra No. 267/92) belonging to the defendant was increased to 1-9-3 bigha during settlement. 3 7. According to the plaintiff, the suit land is part and parcel of the land belonging to her as described in para 4 above. In the alternative, it is pleaded that she has acquired ownership to the suit land by adverse possession through the previous owner, her brother, Shri Balak Ram, the donor, to the knowledge of the defendant. 8. The further averments are that the defendant is former Pradhan and an influential person and under the garb of wrong revenue entries in respect of the suit land in his name, is adamant to dig/cut the suit land which is at higher elevation and merge the same with his land for which he made a futile attempt on 20.10.1995. She requested him time and again to get the revenue entries corrected but on 25.10.1995, he flatly refused to do so and rather threatened to merge the suit land with his land compelling her to file the suit. 9. The suit was contested by the defendant on preliminary objections regarding maintainability and valuation. 10. On merits, it was admitted that the suit land is recorded in the ownership and possession of the defendant. According to the plaintiff the suit land is part and parcel of Khasra No. 110, measuring 1-9-3 bigha, which is exclusively owned and possessed by him. The plaintiff has nothing to do with the suit land and her claim to the same is wholly baseless. She is already in possession of the land gifted to her. It was also denied that the plaintiff has acquired title to the suit land by adverse possession. The entries in the revenue record qua the suit land are consistent and long standing and are not wrong or invalid on any ground, 4 whatsoever. The averments regarding the plaintiff asking the defendant to get the revenue entries in respect of the suit land corrected were also denied. 11. On the above pleadings on behalf of the parties, the learned trial Court had settled the following issues:- 1. Whether the suit land is part of Khasra No. 111 which is owned by the plaintiff? OPP. 2. If issue No.1 is proved in affirmative, whether the revenue entries contrary to this act are wrong and illegal, as alleged? OPP 3. Whether the plaintiff has become the owner of the suit land by way of adverse possession? OPP 4. Whether the suit is not maintainable? OPD 5. Relief. 12. After the parties led evidence and were heard by the learned trial Court, the suit was decreed by holding issues No. 1 to 3 in affirmative and issue No. 4 in negative. 13. Being aggrieved, the defendant carried the matter in appeal to the learned First Appellate Court which allowed the appeal and reversed the judgment and decree passed by the learned trial Court, as already noticed. 14. The appeal has been admitted on the following substantial question of law:- “Whether the lower appellate Court mis-led itself in setting aside the judgment and decree of the trial Court by mis-reading and mis-interpreting the documentary and oral evidence on record?” 15. I have heard the learned counsel for the parties and gone through the record. 5 16. The sole substantial question of law, as above, is taken up for discussion and decision as follows. 17. In nutshell the case pleaded by the plaintiff is that she is owner of the suit land and the revenue entries depicting the defendant to be owner thereof are wrong, incorrect, illegal and void and in the alternative she has acquired title to the suit land by adverse possession. 18. I have no hesitation to say at the very outset that the plaintiff has miserably failed to establish her claim to the suit land on either of the two counts, as above. It being so, the learned lower Appellate Court cannot be said to have misled itself in setting-aside the judgment and decree of the learned trial court by allegedly misreading and misinterpreting the documentary and oral evidence on record. The reasons to arrive at this inference are setout hereinafter. 19. The contention raised on behalf of the plaintiff that either the area of old khasra No. 35, measuring 4-4-0 bigha, of which present khasra No. 111, measuring 3-4-8 bigha, belonging to her (plaintiff) is a part, has been decreased to 3-16-18 bigha, or there is corresponding increase in the area of khasra No. 110 (old khasra No. 267/92) belonging to the defendant from 0-16-0 bigha to 1-9-3 bigha, is not borne out of the evidence on record. 20. It is in evidence in the cross-examination of the defendant, who has appeared as DW-1, that whereas consolidation operations were carried out in the area in the year 1993-94, 6 settlement operations had taken place during 1962-63. In missal haqiat 1993-94, Ex. PG, the land of khasra No. 110, (old Khasra No. 267/92), measuring 1-9-3 bigha, of which the suit land is a part, is recorded in the ownership and cultivating possession of the defendant. To the similar effect are the entries in jamabandi 1981- 82, Ex. PK, relating to khasra No. 267/92, measuring 1-9-3 bigha, which corresponds to new khasra No. 110 of which the suit land is a part. Thus, the latest revenue record depicts the defendant as owner-in-possession of the suit land. 21. It appears that the plaintiff was actuated to file the suit after demarcation of the land of khasra No. 110, of which the suit land is a part, at the instance of defendant vide application for demarcation, Ex. PH, by PW-5, Shri Gokal Chand, Kanungo (Retd.), who had issued demarcation report, Ex. PJ, and aks tatima sajra, Ex. PI. A perusal of demarcation report, Ex. PJ, coupled with statement of PW-5, Shri Gokal Chand, Kanungo (Retd.) would go to show that while carrying out demarcation, he had not fixed pucca points and had also not looked into the Field Book which go to effect the very veracity of his report, Ex. PJ. 22. Even otherwise, the plaintiff has not been able to co- relate the suit land which is a part of khasra No. 110 (old khasra No. 267/92) with the help of earlier khasra Nos. to establish that prior to settlement its area was 0-16-0 bigha which after settlement was increased to 1-9-3 bigha. 23. True it is that as per copy of khatauni, Ex. PB, land of khasra No. 35 (old khasra No. 65) was measuring 4 bigha 4 biswa. In missal haqiat present settlement, Ex. PA, new khasra Nos. 93, 7 measuring 3-4-8 bigha and 102, measuring 0-12-10 bigha have been carved out of old khasra Nos. 35 min and 35 min. The area of both these khasra Nos. when added comes to 3-16-18 bigha. According to the plaintiff, the suit land which measures 0-5-5 bigha also forms part of old khasra No. 35 measuring 4 bigha 4 biswa. In case the area of the suit land is also added to the area of khasra Nos. 93 and 102, the total area comes to 4-2-3 bigha, which again is less than 4 bigha 4 biswa by 1 biswa 17 biswansi, which belies the contention of the plaintiff that the suit land is part of khasra No. 111 belonging to her and not of khasra No. 110 belonging to the defendant. Still further, it is not shown as to whether any other khasra No. was also carved out of old khasra No. 35. 24. As already observed, the plaintiff has not been able to co-relate the suit land with the help of earlier khasra number, that is, prior to settlement of 1962-63. Even if it is taken to be true for a moment for the sake of argument that area of khasra No. 110 was earlier only 0-16-0 bigha which was later on increased to 1-9-3 bigha, the corresponding increase would be to the extent of 13 biswa 3 biswansi which does not at all correspond to the area of the suit land which is only 0-5-5 bigha. From this angle as well the case of the plaintiff that either there is any decrease in the area of khasra No. 111 belonging to her or there is any corresponding increase in khasra No. 110 belonging to the defendant equal to the area of the suit land, that is, 0-5-5 bigha, is belied. 25. The pleadings setup on behalf of the plaintiff with regard to acquisition of title to the suit land by adverse possession vide paras 5 and 6 of the plaint, besides being in the alternative, 8 are absolutely sketchy, without there being any mention as to when she came in possession of the suit land or when such possession turned hostile to the title of the true owner, that is, the defendant. The oral evidence is totally silent about the revenue entries in respect of the suit land being allegedly wrong, incorrect, illegal and void. Whereas the plaintiff is claiming possession over the suit land through her brother for about 34-35 years, according to PW-2 Shri Sohan Lal, he had been seeing her in possession of the suit land for the last 15-20 years after he had settled in the area. PW-3, Shri Mahant Ram, has also stated about possession of the plaintiff over the suit land for the last 34-35 years. However, the fact remains that the plaintiff has categorically admitted during cross- examination that land measuring 3-4-8 bigha was gifted to her by her bother in 1982-83. The suit was filed on 30.10.1995. Apart from this land she has no other land in Tika Nalsar, meaning thereby that the gifted land measuring 3-4-8 bigha corresponds to khasra No. 111. She has also stated that she is in possession of land measuring 3-4-8 bigha. However, the gift deed has not been brought on record. The plaintiff has also not examined her brother, Shri Balak Ram, who had gifted the aforesaid land measuring 3-4-8 bigha to her to state anything about the alleged adverse possession of the plaintiff over the suit land through him. 26. In view of the above, the plaintiff has not been able to plead and prove broad parameters required by a person to claim title by adverse possession as has been held by the Hon’ble Supreme Court in Karnataka Board of Wakf vs. Government of India and others, (2004) 10 Supreme Court Cases 779, (2) T. 9 Anjanappa and others vs. Somalingappa and another, (2006) 7 Supreme Court Cases 570, (3) P.T. Munichikkanna Reddy and others vs. Revamma and others, (2007) 6 Supreme Court Cases 59 and (4) Annakili vs. Vedanayagam & Ors., AIR 2008 Supreme Court 346. 27. To the similar effect is the law laid down by this Court in Hari Datt and others vs. Sapuran Dass, 1987 Sim. L.C. 179 and Devi Chand vs. Raj Dulari, 1992 (2) Sim. L.C. 248. 28. The substantial question of law for determination is answered accordingly. 29. In the result, the appeal is dismissed being without any merit, leaving the parties to bear their own costs. (V.K. Sharma) Judge. October 31, 2011. (cr)