IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 219/1999 Reserved on: 5.5.2011 Decided on:2.6. 2011 _____________________________________________ Dev Dutt and others. …Appellant. Versus Roshani Devi and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellants : Mr. Ajay Sharma, Advocate. For the Respondents: Mr. Sanjay Jaswal, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 25.2.1999 rendered by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.71-N/XIII-1998. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the original plaintiff (Singho Ram), predecessor-in-interest of the respondents (hereinafter referred to as ‘plaintiffs’ for convenience sake) filed a suit seeking for possession of land comprised in Khata 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 No. 209 min, in red 145, Khatauni No. 586, Khasra Nos. 1515, 1517 old 486 min, 486 min, plots 2, measuring 0-10-99 HM, situated in Mohal and Mauza Kuther, Tehsil Nurpur, District Kangra. According to the plaintiff, he was owner of the suit land since the suit land had been allotted to him in consolidation proceedings under section 30 (2) of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. The predecessor-in-interest of the defendants (hereinafter referred to as the ‘defendants’ for convenience sake), namely, Fauju, during settlement operation got himself recorded as Kabiz over the suit land and also illegally took the possession. The plaintiff requested him to vacate the possession but he did not agree. 3. The suit was resisted by the defendants. According to them, they were in possession of the suit land for more than 100 years and they always considered themselves to be the owner. Trial court framed issues on 23.4.1997. Trial court decreed the suit on 1.7.1998. Defendants preferred an appeal before the District Judge. He dismissed the same on 25.2.1999. Hence, the present Regular Second Appeal. It was admitted on the following substantial question of law: 3 “Whether the courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its right perspective, thereby vitiating the judgments and decrees? 4. Mr. Ajay Sharma has strenuously argued that both the courts below have erred in appreciating the provisions of law applicable, pleadings of the parties and the evidence adduced by them leading to grave miscarriage of justice. 5. Mr. Sanjay Jaswal has supported the judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the pleadings carefully. 7. Plaintiff has appeared as PW-1. According to him, he was owner of the suit land but during settlement operation in the year 1983, the predecessor-in-interest of the defendants, Fauju, got forcible possession of the suit land. He also got his name incorporated in the revenue record as Kabiz. The plaintiff has proved on record copy of jamabandi for the year 1983-84, i.e. P-1. According to Ex.P-1, plaintiff alongwith other co-sharers was recorded in the column of ownership and in the column of possession, Fauju was recorded as Kabiz, however, with no entry in the column of rent. In the jamabandi for the year 1977-78, Ex.P-2, plaintiff 4 and co-sharers were recorded as owners in possession of the suit land. In Ex.P-3, copy of Istemal, the suit land has been shown to be allotted to the plaintiff. The plaintiff has also relied upon Ex.P-4, i.e. copy of jamabandi for the year 1994- 95. In this jamabandi also, the plaintiff’s name has been recorded in the column of ownership and in the column of cultivation, defendants were recorded as Kabiz with no entry in the column of rent. 8. DW-1 Giani Devi has deposed that the defendants were in possession of the suit land for more than 100 years. Mohru, her father-in-law, was in possession prior to Fauju. They never left the possession of the suit land. They were cultivating the suit land. 9. DW-2 Rania Ram has supported the version of DW-1. He had been seeing the possession of the defendants for the last 18-20 years and he considered the defendants to be the owners of the suit land. 10. The plea of adverse possession, raised by the defendants, has rightly been rejected by both the courts below. It was necessary for the defendants to prove that their possession was open, continuous and there was any animus to occupy the same. Defendants have also not 5 pleaded the date from which their possession has become adverse. 11. Defendants have also filed application bearing CMP No. 365/1999, under order 41 rule 27 of the Code of Civil Procedure, whereby they have placed on record copies of jamabandi for the years 1917-18 and 1922-23. They have also placed on record copy of pedigree table. These revenue entries pertained to 1917-18. In jamabandi for the year 1917-18, the plaintiff and other co-sharers have been recorded as owners in possession of the suit land. In jamabandi for the 1983-84, Ex.P-1, the plaintiff and other co- sharers have been recorded in the column of ownership. In jamabandi for the year 1994-95, Ex.P-4, name of the plaintiff has been recorded in the column of ownership and in the column of cultivation; defendants have been recorded as Kabiz with no entry in the column of rent. Defendants have not explained the stray entry which has come during the settlement operation. It was necessary to place on record the orders on the basis of which the stray entry has been made. Consequently, there is no merit in the application bearing CMP No. 365/1999, under section 41 rule 27 of the Code of Civil Procedure and the same is dismissed. 6 12. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 2.6. 2011 *awasthi*