IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.43 of 1998 Decided on: 20.4.2010 Jai Ram …Appellant. Versus Chamaru & others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Ms. Seema Guleria, Advocate. For the Respondents: Mr. Vinod Gupta, Advocate. Surjit Singh, Judge (oral) This Regular Second Appeal was admitted on the following substantial questions of law:- “1. Whether when co-owner takes possession and continues in possession for a long time without sharing the income with others, whether an inference of ouster of the co- owner not in possession can be drawn? 2. Whether the report of Process Server without an affidavit duly authenticated by an authorized officer can be taken as evidence of the service of the summons when it is disputed by the party? 3. Whether in view of the facts and circumstances the documentary evidence of the parties has been legally appreciated and relied upon by the learned lower courts? Whether reporters of the local papers may be allowed to see the judgment? …2… 4. Whether the substituted service can be effected on a party by a revenue officer under the H.P. Land Revenue Act? 5. Whether from the documentary evidence appellant has proved ouster of predecessor- in-interest of the respondents?” 2. Facts relevant for the disposal of appeal may be noticed. Appellant-plaintiff filed a suit for issuance of permanent prohibitory injunction, restraining the respondent- defendant from interfering in his possession over land, bearing Khasra No.12, 13 and 14, measuring 10 bighas 19 biswas and 19 biswansi, situate in Mouza Bari, Illauqa Tungal, Tehsil and District Mandi, hereinafter referred to as suit land, alleging that though the land was recorded in the joint ownership of the parties in the revenue papers, it had in fact been in his exclusive possession for the last 20-22 years and his possession was hostile, open and uninterrupted and, thus, he had become owner by adverse possession, even in respect of half share of the defendant-respondent. It was further pleaded that the respondent-defendant had obtained an order of partition behind his back and without service of any notice upon him and on the strength of that order of partition he had been threatening to interfere in his possession. 3. Respondent-defendant contested the suit. He alleged that initially both the parties were joint owners of the suit property, but on his application, the property had been partitioned by Assistant Collector 1st Grade, vide order dated …3… 6.6.1987. It was stated that summons was served upon the plaintiff-appellant through his wife, but he did not put in appearance despite service and, so, ex-parte order of partition was passed on the aforesaid date. He denied that the appellant-plaintiff had acquired title by adverse possession. It was also stated that the suit was not maintainable and the plaintiff had no cause of action. Plea of limitation was also raised. 4. Various issues were framed by the trial Court on the pleadings of the parties. At the end of the trial, it was held that the plaintiff had not become owner by adverse possession, defendant had not been illegally interfering in the possession of the plaintiff, suit was not maintainable, plaintiff had no cause of action and the property stood legally partitioned. Defendant’s plea that the suit was barred by time, however, did not find favour with the trial Court. Consequently, the suit was dismissed. 5. Appeal was filed against the judgment and decree of the trial Court in the Court of District Judge. That has been dismissed vide judgment and decree dated 16.10.1997. It is against this judgment and decree of the District Judge that the present appeal is directed. 6. I have heard the learned counsel for the parties and gone through the evidence. 7. It is the admitted case of both the parties that earlier they were joint owners. Entries in the Jamabandi for the year 1985-86 also show that the parties are joint owners. …4… Copy of Jamabandi is Ext. PA. Both, the plaintiff and the defendant are real brothers. Though in Jamabandi Ext. PA the entire suit property is shown to be in exclusive possession of the appellant-plaintiff, that is not on account of his being exclusive owner, but only in the capacity of a co-owner. 8. It is settled proposition of law that a co-owner in exclusive possession holds the property not exclusively for himself but for himself being a co-sharer and also as a trustee for the other co-sharers and, therefore, even if he continues to be in interrupted exclusive possession for more than 12 years, he does not prescribe for title. A co-sharer can prescribe for title in respect of the shares of other co-sharers, who are out of possession, only if he openly declares that he holds the property in his own right and not as trustee for other co-owners, out of possession. This is called plea of outer in legal parlance. Such a plea was not raised by the appellant- plaintiff and, therefore, he cannot be heard to say that he has acquired title by prescription. 9. Mere fact that a co-sharer in exclusive possession has not been sharing the income from the property, with the other co-sharers, not in possession, does not lead to any inference that he has ousted the other co-sharers. Reason is that he holds the property for himself being a co-sharer and also on behalf of the other co-sharers, as their trustee. 10. Appellant-plaintiff pleaded that he had not been served in the partition proceedings and, therefore, the order of ex-parte proceedings and also the final order of partition …5… (ex-parte) were illegal. Process Server was examined by the respondent-defendant as DW-3. He categorically stated that he had effected the service by affixation of summons on the door of the house of plaintiff in the presence of his wife. No doubt he did not file any affidavit in support of his report, which he submitted to the Revenue Officer, but his report was authenticated by the Supervisory Officer. Otherwise also, such a question is not required to be gone into by the Civil Court. The appellant-plaintiff would be better advised to approach the Assistant Collector 1st Grade for setting aside the ex parte order of partition or to approach the appellate/ revisional Revenue Authorities for setting aside the order of partition. Civil Court does not have the jurisdiction in such matters, in view of the bar contained in Section 171 of the H.P. Land Revenue Act. 11. In view of the above stated position, all the substantial questions of law, on which the appeal was admitted, are answered against the appellant. Consequently, the appeal is dismissed. April 20, 2010(ss) (Surjit Singh), J