IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 344 of 2011. Reserved on: 05.08.2011. Decided on: 30.08.2011. ___________________________________________ Pohlo Ram. … Appellant. Versus Desh Raj and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. T.S. Chauhan, Advocate. For the Respondents : None. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Ghumarwin, District Bilaspur on 4.6.2011 in civil appeal No.13/13 of 2008. 2. Material facts necessary for the adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has filed a suit for declaration to the effect that he is exclusive owner in 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - possession of land measuring 9.2 bighas, comprised in Khasra No.1588/620, Khata/Khatauni No.242/293, situate in village Sunhani, Tehsil Ghumarwin, District Bilaspur (hereinafter referred to as “the suit land” for brevity sake) by virtue of nautor land granted to his father through him and the revenue entries showing the defendants as joint owners over the suit land, are illegal and wrong. 3. According to the plaintiff, the suit land was originally owned and possessed by proforma respondent, i.e. State of Himachal Pradesh. Plaintiff, Pohlo Ram son of Shri Thunia Ram applied for the grant of nautor land before the S.D.O.(Civil), Ghumarwin and the nautor was sanctioned by the S.D.O.(Civil), Ghumarwin on 18.9.1972 to the father of plaintiff, who was blind and an old man. He was living with the plaintiff. One Shri Ram Lal challenged this order dated 18.9.1972 before the Deputy Commissioner, Bilaspur. He dismissed the same. This order was challenged before the Divisional Commissioner by way of revision. The revision petition was dismissed. Further appeal was also filed before the Financial Commissioner. It was also dismissed by the Financial Commissioner. It is further alleged by the plaintiff that he has levelled the suit land and made it cultivable. The revenue entries in the name of contesting defendants in revenue record are illegal, wrong and void. He has also prayed in the alternative that his possession has matured into title by way of adverse possession. - 3 - 4. The suit was contested by the defendants by filing joint written statement. It is denied that the plaintiff is owner in possession of the suit land. According to the defendants, they are co-owners in possession of the suit land. It is categorically denied that the suit land was granted as nautor to the plaintiff. 5. Issues were framed by the learned trial Court. The learned trial Court decreed the suit on 28.12.2007. The defendants preferred an appeal before the learned Additional District Judge, Ghumarwin, District Bilaspur. He allowed the same on 4.6.2011. Hence, this regular second appeal. 6. Mr. T.S. Chauhan, learned counsel for the appellant has supported the judgment and decree, dated 28.12.2007 passed by the learned trial Court. According to him, the learned first appellate Court has mis-read and misinterpreted the documentary as well as oral evidence led by the parties. He lastly contended that the findings recorded by the first appellate court with regard to adverse possession are also liable to be set aside. According to him, his client has proved all the ingredients of adverse possession. 7. I have heard Mr. T.S. Chauhan, learned counsel for the plaintiff at length and gone through the judgments as well as pleadings carefully. 8. Ex.PW-1/B and Ex.PW-1/C are the applications for nautor land. Ex.PW-1/D and Ex.PW-1/E are the reports of Gram Panchayat, Berthin. Ex.PW-1/G is no objection certificate issued - 4 - by the Forest Department. PW-1/I is the tatima of the land. Ex.PW-1/J and Ex.PW-1/K are the challan forms vide which nazrana, as directed, was deposited. Ex.P-1/M is the copy of patta. Ex.PW-1/O is the copy of mutation attested in the name of the father of plaintiff. Copy of the order passed by the learned Deputy Commissioner is Ex.PW-1/S, Ex.PW-1/T is the copy of order passed in revision petition filed before the Divisional Commissioner. Copy of special power of attorney is Ex.PW-1/U. 9. It is evident from the contents of Ex.PW-1/S, dated 19.9.1973, the order passed by the Deputy Commissioner, Bilaspur that the land granted as nautor to the father of plaintiff, Shri Thunia Ram has been upheld taking into consideration that Thunia Ram was blind and an old man and has applied for grant of nautor land through his son, namely, the plaintiff. This fact was also reiterated in the order passed by the Divisional Commissioner vide Ex.PW-1/T. The orders passed by the Deputy Commissioner and Divisional Commissioner were up-held upto the level of Financial Commissioner. 10. There is a procedure prescribed under the Nautor Rules, the manner in which nautor land is to be allotted. The person must be eligible for allotment of land after completing all the codal formalities. The person, in whose favour the land is sanctioned, has to deposit the nazrana and thereafter patta is made in his favour. In the instant case, the patta has been - 5 - issued in favour of Thunia Ram vide Ex.PW-1/M. The mutation was also attested in the name of father of the plaintiff, namely, Thunia Ram. In Ex.PW-1/Q, copy of jamabandi for the year 1986-87, plaintiff alongwith Balak Ram, Reshmo, Parwati and Shiv Dei alongwith Desh Raj and Nikka Ram are recorded as joint owners in joint possession of the suit land. This entry has also been reiterated in the jamabandi for the year 1991-92, i.e. Ex.PW-1/R. 11. DW-1, Rajdeen, Patwari has also stated in his affidavit that the suit land was allotted to the predecessor-in- interest of the plaintiff, namely, Thunia Ram. The land was inherited by the plaintiff alongwith defendants Balak Ram and Reshmu Devi, son and daughter of Thunia Ram. It is, thus, evident that the land was allotted to Thunia Ram, predecessor- in-interest of the plaintiff vide Ex.PW-1/M and the mutation was also attested in his favour vide Ex.PW-1/O. 12. Now the Court will advert to the submission of adverse possession raised by Mr. T.S. Chauhan, learned counsel for the plaintiff. The plaintiff has not led sufficient evidence to prove his adverse possession over the suit land. The case of the plaintiff, in a nutshell, is that he has improved the suit land and has been cultivating the land. The possession of the plaintiff was only permissive since his father was blind and required the land to be cultivated by the plaintiff. Though PW-1, Pohlo Ram, PW-2, Sunka Ram and PW-3, Khazana Ram have deposed that - 6 - the plaintiff was coming in possession of the suit land, but there is no evidence when the plaintiff has ousted the defendants from the suit land. Moreover, the witnesses produced by the plaintiff have only stated that plaintiff is in possession of the suit land from 1972. It is settled law that the period has to be given with precision when the possession became hostile qua the true owner. He has claimed himself to be the co-owner of the land at the time of taking up the plea of adverse possession. This plea being mutually destructive was not available to him. The plaintiff has failed to prove the requisite conditions of adverse possession. There has to be animus on part of the party to hold the land adverse to the true owner. The findings recorded by the first appellate court that the plaintiff has failed to prove adverse possession, are up-held. 13. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this regular second appeal and the same is dismissed. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. August 30, 2011. (sck).