IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 79 of 1995. Judgment reserved on: 29.7.2010 Date of decision: 23.9.2010. Mitru Devi and ors. …Appellants. Versus Lalit Kumar and ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellants : Mr. Rakesh Jaswal, Advocate For the Respondents : Mr. S.M. Goel, Advocate, for respondent No.1. Kuldip Singh , Judge The defendants are in second appeal against judgment and decree, dated 9.9.1994, passed by the learned Additional District Judge, Kullu in Civil Appeal No. 66/91 affirming judgment and decree, dated 23.9.1991, passed by the learned Senior Sub Judge Lahul and Spiti, exercising the powers of Sub Judge 1st Class, Kullu in Civil Suit No. 267/1988/98 of 1991. Some of the parties in the appeal have died, their names have been deleted and, therefore, the parties in this judgment are referred to as plaintiff, defendants and proforma defendants. 2. The brief facts of the case are that the plaintiff had filed a suit for permanent prohibitory injunction against defendants No. 1 and 1 Whether reporters of Local Papers may be allowed to see the Judgment ?. Yes. 2 2 on the averments that he and proforma defendants are owners in possession of Abadi Deh, land comprised in Khasra No. 7356/7215 measuring 0-3-0 bigha, situated in Phati Manikaran, Kothi, Kanawar, Tehsil and District Kullu vide Jamabandi for the year 1907-08. The case of the plaintiff is that previously there was a house on the suit land, which was burnt in fire long time back and there was a hot water pond (Kund) on the suit land, which is still existing on the spot. The defendants without any right, title or interest on 4.12.1988 had started digging the foundations over the suit land with an intention to raise construction and deprive the plaintiff and proforma defendants of their right to own and possess the suit land. Hence, the suit was filed. 3. The defendants No. 1 and 2 contested the suit by filing written statement. The proforma defendants did not contest the suit. The defendants No.1 and 2 took objections that the plaintiff and proforma defendants are not owners in possession of the suit land. The suit is not maintainable. The defendants No. 1 and 2 are owners in possession of the suit land for the last more than 100 years since the time of their forefathers. They have right to enjoy the suit property. The construction on the suit land was started in November, 1978 to the knowledge of the plaintiff and proforma defendants, but they never raised any objection and now, the construction is almost complete. The replication was filed. On the pleadings of the parties, following issues were framed:- 3 1. Whether the plaintiff is owner in possession of the suit land ? OPP. 2. Whether the defendants No. 1 and 2 have become owners of the suit land by adverse possession ? 3. Whether the defendants No.1 and 2 are entitled for compensation as alleged ? OPD. 4. Relief. 4. The issue No.1 was answered in affirmative, issues No. 2 and 3 in negative and the suit was decreed on 23.9.1991. The learned Additional District Judge dismissed the appeal on 9.9.1994, hence the second appeal, which has been admitted on following substantial questions of law:- 1. Whether in the facts and circumstances of the case the courts below erred in misreading, misquoting and overlooking the documentary evidence with regard to ownership and possession of the suit land ? 2. Whether the findings of the courts below that grant of 3 bishwas of abadi land in favour of predecessor in interest of the respondents by the alleged Patta dated 16.2.1905 is legally sustainable ? 5. I have heard Mr. Rakesh Jaswal, learned counsel for the appellants and Mr. S.M.Goel, learned counsel for respondent No.1 and have also gone through the record. The learned counsel for the appellants has submitted that two courts below have misread and overlooked the documentary evidence with regard to ownership and possession of the suit land. The findings of the courts below that the suit land was granted to predecessor-in-interest of the plaintiff vide Patta, dated 16.2.1905 are not sustainable. The learned counsel for 4 respondent No.1 has supported the judgments and decrees passed by two courts below and has prayed for dismissal of the appeal. 6. The substantial questions of law No. 1 and 2 are interconnected and, therefore, both of them are taken up for decision collectively. The parties have led oral as well as documentary evidence. Ext.P-1 is the copy of Jamabandi for the year 1907-1908. Ext. PX is the Patta, dated 16.2.1905 vide which one house and one ‘kund’ situated on Khasra No.7356/7215 measuring 3 biswas were granted to Roda Mal by Rai Megh Singh of Rupi. Ext. D-1 is the copy of Jamabandi for the year 1899-1900, wherein Khasra No. 7356/7215 measuring 3 biswas is recorded in possession of District Board. Ext. D-2 is mutation No. 677, dated 30.3.1902 vide which the land was merged with Abadi. Ext.D-3 is the certified copy of Musabi of Phati Manikaran. It is, thus, clear that till 1902 land measuring 3 biswas comprised in Khasra No. 7356/7215 vide mutation, Ext.D2, remained a part of Abadi. On 16.2.1905 vide Ext.PX land measuring 3 biswas comprised in Khasra No. 7356/7215 consisting of a house and ‘kund’ was granted to Roda Mal by Rai Megh Singh of Rupi as per Wazib-ul-Arz. 7. It is nobody’s case that Rai Megh Singh was not competent to grant land of Rupi. On the contrary, it has come on record that earlier holder of Rupi Jagir had granted lands from Jagir to many persons from time to time. The defendants No. 1 and 2 have not placed on record any document to show that the land in question was ever granted to them. The defendants No. 1 and 2 had projected their 5 case of adverse possession on the suit land, which they have miserably failed to prove. PW1, Lalit Kumar has stated that Roda Mal was his grand father and land in dispute was given to Roda Mal by Rai Singh of Rupi. The defendants No. 1 and 2 have failed to establish their title over the suit land. There is no dispute that Roda Mal was the grand father of the plaintiff. There is overwhelming evidence on record that the suit property was earlier owned by Roda Mal and now, the plaintiff has inherited the suit property and is owner in possession of the same. The suit property has been detailed in the site plan, Ext.PW1/A. 8. The appellants have failed to point out specific misreading, misinterpretation and misquoting of oral and documentary evidence, which has resulted into erroneous findings. It has also not been established that findings recorded by the two courts below in favour of the plaintiff regarding the suit land are based upon inadmissible evidence or material evidence, which goes to the root of the case, has been ignored. The view taken by the two courts below emerges from the evidence on record. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are decided against the appellants and, consequently, the appeal is liable to be dismissed. 9. In view of above discussion, the appeal is dismissed with no order as to costs. September 23, 2010. ( Kuldip Singh ) (pankaj) Judge.