HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 309 of 1997. Decided on: 22.5.2008. Mahanti ………Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr. N.K. Sood, Advocate. For the respondent: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J. (Oral): This is a regular second appeal filed by the appellant against the judgment and decree passed by the learned District Judge, Bilaspur, dated 1.10.1997, vide which the appeal filed by the respondent-State was allowed and the judgment passed by the learned Sub Judge, Ghumarwin, dated 30.5.1989, decreeing the suit of the appellant/plaintiff for declaration and permanent injunction, was set aside. Briefly stated the facts of the case are that the appellant as plaintiff filed a suit for declaration and permanent injunction as against the respondent/State, ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - who was impleaded as defendant. The plaintiff claimed that the land comprised in Khasra No.748/691/1, measuring 2-17 bighas, situated in Village Dangar, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. was in possession of the plaintiff since 1950. It was alleged that earlier her husband was in possession of the suit land and after his death, the plaintiff is in possession and she has constructed two houses and cowshed over the suit land and has also developed an orchard and since her possession is adverse as against the defendant since 1950, she has become owner by way of adverse possession. The plaintiff also challenged the order of Tehsildar, dated 18.5.1985, about the ejectment of the plaintiff, which order was upheld by the SDM, Ghumarwin, vide order dated 17.3.1986. The suit was tried by the learned trial Court, who concluded that the plaintiff has proved that she has become owner in possession by way of adverse possession and accordingly the relief of declaration was also granted in favour of the plaintiff and the order passed by the Tehsildar Ghumarwin and affirmed by the SDM was declared as wrong and illegal. The relief of permanent injunction was also granted in favour of the plaintiff and as against the defendant restraining it from interfering in the possession of the plaintiff over the suit land. A plea was also taken during the trial of the case that the Civil Court has no jurisdiction, which was answered in the negative by the learned trial Court. On appeal, the findings were reversed by the learned First Appellate Court, who held that the Civil Court had no jurisdiction to try the suit and on merits also, the findings were reversed leading to the dismissal of the suit. - 3 - I have heard the learned counsel for the parties and have gone through the record of the case. The appeal was admitted on substantial questions of law which were mainly as to whether the plaintiff had perfected her title by way of adverse possession before the initiation of proceedings of ejectment against her and whether the orders passed by the Revenue Officers were not correct and there was jurisdiction of the Civil Court to adjudicate upon the legality and validity of the orders passed by the Revenue Officers. Another substantial question of law framed was that there has been misreading of the pleadings and evidence and as such the findings of the learned appellate Court are liable to be set aside. On appraisal of the record of the case, it is clear that the plaintiff has claimed her adverse possession over the suit land since 1950 and alleged that earlier her husband was in possession and she continued in possession of the suit land after his death and that the possession was hostile. The learned trial Court had specifically referred to the evidence and the pleadings of the plaintiff which had not specifically proved as to when the adverse possession of the plaintiff started and from which date the possession can be said to be adverse as against the true owner i.e. State of H.P. The plaintiff has simply pleaded and proved her long possession over the suit land since 1950 or for the last 40 years for which there were contradictions since she alleged in the pleadings that she has been in possession over the suit land since 1950 and in court, she stated that she has been in possession for the last 40 years. The mere fact that the possession of the plaintiff may be long does not turn her long possession into adverse possession as against the true owner. Therefore, the findings of the - 4 - learned First Appellate Court holding that the plaintiff had failed to prove her adverse possession over the suit land are based upon correct appreciation of evidence and law and are liable to be affirmed. Coming to the findings of the learned First Appellate Court that the Civil Court had no jurisdiction to try the suit, the learned First Appellate has referred to the provisions of Section 171 of the H.P. Land Revenue Act as well as Section 163 of H.P. Land Revenue Act. However, these provisions of Section 163 of the H.P. Land Revenue Act were amended w.e.f. 27.6.1989 and accordingly, in case any plea of adverse possession was taken, it was required to be decided by the Revenue Officer after that date. However, in the present case, the suit was filed by the plaintiff on 9.9.1986 and it has also been decided on 30.5.1989. Order of ejectment was passed by the Revenue Officer on 18.5.1985, as per Ext.D-1, which was affirmed on appeal by the SDM on 17.3.1986, vide Ext.D-2. Thus, it is clear that the Revenue Officer had already passed the order of ejectment, which was affirmed on appeal and amendment was brought to the H.P. Land Revenue Act subsequently. The dates and the amendments were also considered by this Court in State of Himachal Pradesh v. Durga Singh, 2001(1) Cur.L.J. 381. Therefore, it is clear that the said amendment did not apply to the facts of the present case and to that extent the findings of the learned First Appellate Court are liable to be reversed and it is held that the Civil Court had the jurisdiction to try the suit. However, the plaintiff had failed to prove his case and as such the suit of the plaintiff was dismissed. Therefore, there is no merit in the appeal filed by the appellant which is dismissed accordingly. - 5 - Before parting with this appeal, I may point out that the learned counsel for the appellant has submitted that some schemes have been formulated by the State Government for regularization of the unauthorized occupants. In case, the case of the plaintiff falls within any scheme so formulated by the State Government, the plaintiff shall be at liberty to apply for the regularization within that scheme and the State Government shall take a decision at the earliest. However, the findings of this Court dismissing the suit of the plaintiff shall not affect the plea raised by the plaintiff for regularization if permitted under the scheme. The appeal is dismissed accordingly. The parties are left to bear their own costs. May 22, 2008. (V.K. Ahuja), (TILAK) Judge.