IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 283 of 2003. Reserved on: 11.11.2010. Decided on: 22.11.2010. _________________________________________________________ Mehar Chand and others. …Appellants. Versus Dilawar Singh and others. … Respondents. __________________________________________________________ Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants : Mr. Satyen Vaidya, Advocate. For the Respondents : Mr. T.S. Chauhan, Advocate for respondents No.1 and 4. None for respondents No.5 and 6. __________________________________________________________ Rajiv Sharma, J.: This regular second appeal is directed against the judgment and decree dated 31.3.2003 passed in Civil Appeal (RBT) No.165/01 /1996, by the learned Additional District Judge, Una. 2. Material facts, necessary for adjudication of this regular second appeal are that the appellants/plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) had filed a suit for declaration to the effect that they were owners in possession of land measuring 0-91-23 (about 23 kanal 16 marlas) comprised in Khewat No.180 min, Khatauni No.240, Khasra No.1111, 1114, 1115, 1116, 1295 and 1296 (carved out from pre-settlement Khasra Nos. 37/25/2, 37/28 min, 37/128 min, 38/128 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - min, 61/14 and 61/13/2) as entered in Misal Haquiat Bandobast Jadid Sani for the year 1987-88, situate in Up-Mohal Thakardwara, Mauja Basal, Tehsil and District Una and the entries appearing in the name of defendant, Ajit Singh (hereinafter referred to as “the defendant” for convenience sake) reflecting him to the Gair Morusi were wrong, fake, inoperative and were not binding on the right, title or interest of the plaintiffs over the suit land and for consequential relief of permanent injunction restraining the defendant from interfering in any manner whatsoever in the peaceful possession of the plaintiffs as owners of the suit land. The defendant contested the suit by filing written statement. On merits, the defendant denied the contents of plaint and specifically pleaded that prior to the consolidation in the village Shri Hari Singh, father of the defendant was tenant under Shri Sant Ram and Chet Ram, owners of the land measuring 7 kanals 9 marlas and in adverse possession of the land measuring 17 kanals 5 marlas comprised in Khasra No.7025/3441, 3442, 3601, 3610, 3620, 7041/3621 and 7049/3622 for more than 12 years and his possession was open, hostile and he had perfected his title by efflux of time. He has stepped into the shoes of Shri Hari Singh and he was coming in physical possession of the suit land. According to him, the revenue entries made in his name and his ancestors were correct as per the situation on the spot and were binding on the plaintiffs. Plaintiffs filed replication and they reasserted the contents of plaint. 3. The learned trial Court framed the issues on 18.1.1991. Learned trial Court dismissed the suit on 26.9.1996. The plaintiffs preferred an appeal before the learned Additional District Judge, Una. - 3 - The learned Additional District Judge, Una dismissed the appeal on 31.3.2003. Hence, this regular second appeal by the plaintiffs. 4. This regular second appeal was admitted on the following substantial questions of law, on 27.8.2003:- 1. Whether the findings of the trial Court as affirmed by the first appellate court that the defendant was in adverse possession of land, are perverse and dehors the evidence on record? 2. Whether the possession recorded in Jamabandi, in the absence of any other evidence on record, is sufficient to conclude adverse possession of such person? 5. Mr. Satyen Vaidya, learned counsel for the appellants has strenuously argued that the judgments and decrees passed by both the Courts below are against the principles of law. According to him, the learned courts below have not correctly appreciated the ocular and documentary evidence on record. He lastly contended that the defendant had miserably failed to prove the plea of adverse possession. Mr. Tara Singh Chauhan, learned counsel for the respondents has supported the judgments and decrees passed by both the courts below. 6. I have heard learned counsel for the parties and gone through the records carefully. 7. Since both the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 8. Plaintiff, Mehar Chand has appeared as PW-1. He stated that he was owner in possession of the suit land measuring 23 kanals and 16 marlas. He then stated that the plaintiffs never inducted Ajit Singh or Hari Singh as Gair Morusi tenants and they were not in - 4 - possession of the suit land. He further stated that consolidation proceedings took place in the village 7/8 years ago and settlement proceedings took place 2/3 years back. He also testified that the suit land was being cultivated by him through labourers. However, he admitted that he was on the spot at the time when the consolidation proceedings took place in the village. He had shown his ignorance to the fact that Sant Ram, Chet Ram or Hirda Ram inducting Harjalla son of Kesar, grand-father of the defendant as Gair Morusi tenant over the land comprised in Khasra Nos. 3611 and 7027/3465. He also denied tenancy of Harjalla over the remaining khasra numbers. PW-2, Des Raj has supported the version of PW-1. According to him, neither Jeet Singh nor his grand father was ever put in possession of the suit land. PW-3, Inder Ram has testified that he had been ploughing the land of Mehar Chand by using his tractor and he was paid accordingly. 9. Defendant has appeared as DW-1. He testified that he was in possession of the suit land after the demise of his father and prior to his father, his grand-father was in possession of the suit land. He also testified that their status was of tress-passers since 1945-46, whereas on the rest of the land, they were Gair Morusi. According to him, consolidation proceedings have taken place in the village during 1981- 82, however, the owners never agitated their rights before the consolidation authorities. DW-2, Teja Singh has supported the version of DW-1. According to him, the land was in possession of the defendants prior to 1965. DW-3, Piara Singh has also supported the case of the defendant. 10. Plaintiffs have relied upon Ex.P-1, Misal Haquiat Bandobast for the year 1987-88. The status of defendant was shown as - 5 - tress-passer on the land comprised in Khasra No.1111, 1114, 1115, 1116 and 1296 and on Khasra No.1295 he was shown as Gair Morusi tenant on payment of rent. Ex.P-2 is the copy of Misal Haquiat Istaymal for the year 1981-82 where the same entry was reiterated. The defendant has placed on record Ex.D-1, copy of jamabandi for the year 1959-60 and Ex.D-2, copy of jamabandi for the year 1972-73. In these documents, Hari Singh, father of the defendant was shown as Gair Morusi tenant on certain portion of land and Gair Morusi without paying rent over the remaining portion of the suit land. Ex.D-5 is the copy of field book, Bandobast Jadid Sahni, showing the dimensions of new khasra numbers. Ex.D-7 is the copy of jamabandi for the year 1945-46, Ex.D-8 is the copy of jamabandi for the year 1954-55. Ex.D-9 is the copy of Khasra Girdawari for the year 1987 to 1993. Ex.D-10 is the copy of Khasra Girdawari for the year 1984-86. Ex.D-11 is the copy of Khasra Girdawari for the year 1973 to 1978. Ex.D-12 is the copy of Khasra Girdawari for the year 1942 to 46. Ex.D-13 is the copy of Misal Haquiat for the year 1981-82 of the land comprised in Khewat No.757 min where father of defendant, Hari Singh son of Harjala has been shown as Gair Morusi tenant on payment of rent. Ex.D-14 and Ex.D-15 are the copies of Misal Haquiat Istaymal for the year 1981-82 and Misal Haquiat Bandobast for the year 1987-88. These entries do not relate to suit land. Ex.D-16 is again copy of Misal Haquiat Bandobast for the year 1987-88 pertaining to khasra No.1295 where the defendant has been shown as Gair Morusi tenant over the suit land. It is, thus, evident from the records that the defendant is coming in possession of the suit land as Gair Morusi tenant either on payment of rent or on some portion of land as Gair Morusi without paying rent. These revenue entries from the year - 6 - 1945-46 were being reiterated in the subsequent years. Similarly, in Khasra Girdawaris, the status of the defendant has been reiterated as tenant in possession. 11. Consolidation proceedings have taken place in the village in the year 1983-84. The plaintiffs have not raised any objection at that time. The plaintiffs at no given time have challenged the revenue entries where the defendant and his predecessors-in-interest have been shown as tenant. Even during the course of consolidation proceedings, no objection was raised by the plaintiffs qua the revenue entries, which took place 2/3 years back. The plaintiffs knew about the revenue entries made in favour of the defendant when civil suit titled “Brahmi Devi and others versus Teja Ram” was decided on 4.11.1967. 12. The defendant has led ample oral as well as documentary evidence to prove the plea of adverse possession. According to him, his father was in possession as Gair Morusi tenant over the land measuring 8 kanalas 16 marlas. He has occupied the remaining 15 kanals of land forcibly. He has also deposed that before his father, his grand-father was in possession of the land. Plaintiffs knew about their possession, but they never objected to. He has also given khasra numbers of the land occupied by him and his predecessors-in-interest forcibly, denoting Khasra Nos. 1111, 1114, 1115, 1116 and 1296. He also testified that the plaintiffs have not raised any objection at the time of consolidation nor they have filed any appeal. DW-2 has deposed that the defendant was in occupation as Gair Morusi tenant on some portion of the land on payment of rent and on the remaining land, he was in occupation as Gair Morusi tenant without payment of rent. He was in possession since 1965. He has seen the possession of defendant since 1965. DW-3 has - 7 - also supported the version of DW-1. According to him, the defendant had forcibly occupied 15/16 bighas of land and he was shown as Gair Morusi tenant on 7/8 kanals of land. He also deposed that the defendant was in possession of the land before he attained the age of majority and before him, the land was in possession of his father. It is, thus, evident from Exs. D-1, D-2 and D-3 that on some portion of the land the defendant has been shown as non-occupancy tenant without payment of rent and on some portion of land on payment of rent and the remaining land, he was in physical possession. Revenue entries to this effect have been coming in his favour with effect from 1945-46. The plaintiffs have not taken any steps to get the revenue entries corrected during the course of consolidation or settlement. DW-1 has categorically deposed that the plaintiffs knew about their possession, however, they never objected to it. Defendant has proved all the ingredients of adverse possession. The defendant has shown that his predecessors-in-interest were in occupation of the land and they have perfected their title by way of adverse possession and first entry to this effect was incorporated in the year 1945-46 and thereafter they had been coming in possession uninterruptedly, peacefully and their possession was hostile to the knowledge of true owners. 13. Accordingly, in view of the observations made hereinabove, there is no merit in this regular second appeal and the same is dismissed, so also the pending application(s), if any. The records of courts below be sent back. (Rajiv Sharma), Judge. November 22, 2010. (sck).