IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 290/1998 Reserved on: 12.3.2009 Decided on:18.3.2009 Bidhu Ram. …Appellant. Versus Budhu Singh. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. Ajay Sharma, Advocate. For the Respondent : Mr. Neeraj Gupta, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 30.5.1998 passed by the District Judge, Kangra at Dharamshala in Civil Appeal No. 65-P/XIII-1996. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit in the court of learned Sub Judge, Palampur for possession of land comprised in Khata No. 172 min, Khatauni No. 321, Khasra No. 1526 measuring 0-01-96 hectares situate in Mohal Lower Lamba Gaon, Tehsil Jaisinghpur, District Kangra as per 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 jamabandi for the year 1987-88. It was alleged that he was owner of the suit land and the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) has no right title and interest over the suit land. The written statement was filed by the defendant. The plaintiff filed the replication. The learned trial court decreed the suit on 30.4.1996. The defendant preferred an appeal before the learned District Judge, Kangra at Dharamshala. The same was allowed by the learned District Judge, Kangra at Dharamshala on 30.5.1998. The Regular Second Appeal was admitted by this court on 10.9.1998, however, no substantial questions of law were framed. The appeal was deemed to have been admitted on the following substantial questions of law vide order dated 24.11.2008: 1. “Whether learned first appellate court below erred in allowing the application under order 6 rule 17 CPC preferred by the defendant, thereby vitiating the impugned judgment and decree? 2. Whether learned first appellate court below mis- appreciated the oral and documentary evidence with special reference to Ex.PA and PW, D-1 and D-2 thereby vitiating the impugned judgment and decree?” Mr. Ajay Sharma, Advocate has strenuously argued that the judgment and decree passed by the learned District Judge, Kangra at Dharamshala is not sustainable in the eyes of law. He further contended that the first appellate court could not allow the application preferred by the defendant under order 6 rule 17 of the Code of Civil Procedure. His further contention is that the first appellate court has misread Ex.P-1 and P-2 which has vitiated the judgment and decree. Mr. Neeraj Gupta, Advocate has supported the judgment and decree passed by the learned District Judge, Kangra at Dharamshala. 3 I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The learned trial court has decreed the suit filed by the plaintiff. The learned trial court has come to a conclusion that the defendant has failed to prove the ownership by way of adverse possession. It appears from the record that the defendant preferred an application under order 6 rule 17 of the Code of Civil Procedure before the first appellate court. The application under order 6 rule 17 of the Code of Civil Procedure was allowed by a speaking order by the learned District Judge, Kangra at Dharamshala on 8.1.1997. The plaintiff had filed reply to the application preferred by the defendant. The application was allowed subject to costs of Rs. 100/-. It is in these circumstances that the written statement was amended. In the amended written statement a specific plea was taken that the actual possession of the defendant commenced from 1966-67 with the intention to hold and claim it to be his own to the exclusion of the plaintiff. It was further set up that the possession continued since then uninterrupted, open, hostile and to the knowledge of the plaintiff for more than 12 years and has ripened into ownership by 1978-79. It was the case of the plaintiff before the learned Sub Judge that the defendant has taken up the plea of adverse possession before the learned Sub Judge, however, he has not pointed out the exact year from which his possession became adverse except the statement that it was 45 years old. However, by way of amendment, the defendant has given his year of possession as 1966-67. A bare perusal of Ex.D-1 shows that the plaintiff was shown as owner and the defendant was shown in possession. 4 In Ex.D-3 i.e. copy of jamabandi for the year 1966-67, the plaintiff was shown to be the owner but the defendant was shown in possession of the suit land as non-occupancy tenant. The same entry was repeated in Ex.D-2. The plaintiff has not challenged these revenue entries. It is true that the presumption of correctness is attached to the revenue entries, however, the same are rebuttable. In the case in hand, the plaintiff has not rebutted the revenue entries as discussed hereinabove. The plaintiff has failed to prove that he was dispossessed in the year 1983 by the defendant. He had been living in Jungle-Bairi for the last 40 years. The defendant was living in Lamba Gaon for the last 50 years. DWs have deposed that for the last 30-40 years, the defendant had been coming in possession of the land. The case of the defendant is that he had been in possession of the suit land since1966-67. The nature of the land is Barani Abbal. He has proved all the ingredients of adverse possession, namely, open, uninterrupted and hostile within the knowledge of the plaintiff for more than 12 years. Accordingly, the first appellate court has come to a just conclusion that the adverse possession of the defendant commenced from 1966-67 and thereafter it ripened into ownership in the year 1978-79. Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 18.3.2009 (Rajiv Sharma ), J. *awasthi*