Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 41 of 1998. Decided on: July 1st, 2008. Vimla Devi and others. …… Appellants. Versus Surinder Kumar and another. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? No. For the appellants : Mr. Ramakant Sharma, Advocate, vice Mrs. Devyani Sharma, Advocate. For the respondents : Ms. Madhu Sharma, Advocate, vice Mr. Ashwani Sharma, Advocate. Surinder Singh, J. The present Regular Second Appeal has been filed by the defendants, feeling aggrieved and dissatisfied by the judgment and decree passed by the learned Additional District Judge (1), Kangra at Dharamshala, whereby he had set-aside the judgment and decree passed by Sub Judge Ist Class (I), Nurpur in civil suit No.643/89/ 28/90 and decreed the suit of the plaintiff-respondent for the relief of possession. The present appeal was admitted on the following substantial questions of law:- “1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of statements of DW1 to DW5 and Ext.D1 to D5 and Exts. P1 to P4 and PW1 to PW3? - 2 - 2. Whether the learned lower appellate court was right in accepting the appeal filed by the respondents/plaintiffs in a case wherein the learned trial court had decreed the counter claim filed by the defendant and dismissing the suit filed by the plaintiffs? 3. Whether the impugned judgment and decree is the result of non- consideration of the provisions of Order 8 Rule 6A and provisions of Order 7 Rule 1 CPC? 4. Whether the learned lower appellate court is right in passing a decree for possession admittedly when the plaint was neither accompanied with spot map nor any tatima especially when the land qua which the decree for possession is sought is being abadi deh? 5. Whether the learned lower appellate court is right in coming to the conclusion that the appellant-defendant has failed to prove his possession, that is, adverse possession in an appeal preferred by the plaintiffs against the dismissal of their suit and no separate appeal having been preferred against the decree passed by the trial court in a counter claim preferred by the defendant.” In brief, the facts of the case giving rise to the present appeal are that the respondents hereinafter to be referred as “the plaintiffs” had filed a suit against the appellants, to be called “the defendants”, for seeking the relief of possession with respect to the khasra Nos.2919, 2920, 2921, 2922, 2923, 2924, 2925, 2926 total plots 8 measuring 406-16 square meters, situated in up-Mohal Rampuri, Nurpur town, Tehsil Nurpur, District Kangra, H.P., as per Misal Hakiat Jadid for the years 1987-88 of Up-Mohal Rampuri, hereinafter to be referred as the “suit land” with a consequential relief of permanent injunction restraining the defendants from causing any interference into his ownership and possession in any manner. As per the case of the plaintiffs, their father Shri Roshan Lal son of Shri Laxman Dass had purchased the suit land vide sale deed Ex.P1 registered on 4.7.1972, from its previous owner Shri - 3 - Ram Chand. After its purchase their father Roshan Lal came in its possession. The defendant took the possession of the suit land in the year 1982, during the period between 1978 to 1988, when the settlement operation was going on. The defendant was totally stranger to the suit land, but after encroachment raised a Kachha residential house and cowshed there upon without any right, title or interest. Despite several requests, the defendant did not vacate the possession of the suit land, as such the plaintiff claimed the possession by demolishing the structure and removing of its debris. The suit was resisted and contested by the defendant on the grounds of its maintainability inter-alia took up the plea of estoppel, adverse possession and also questioned the locus-standi of the plaintiffs to file the suit in his written statement and in addition also filed the counter-claim that the structure over the suit land was 50 years old which was built up by his predecessor-in-interest and he has perfected the title by adverse possession. The plaintiffs denied the claim of the defendants by filing replication and written statement to the counter claim. The learned trial Court framed the following issues on the pleadings of the parties: “1. Whether the plaintiffs are owners of the suit land, as alleged? OPP 2. If issue No.1 is proved, whether the plaintiffs were dispossessed from the suit land by the defendant in 1982, as alleged? OPP 3. Whether the suit is time barred, as alleged? OPD 4. Whether the plaintiffs have no cause of action, as alleged? OPD 5. Whether the plaintiffs have no locus-standi to sue, as alleged? OPD 6. Whether the defendant is owner in possession of the suit land by way of adverse possession, as alleged? OPD 7. Whether the counter-claim is not maintainable as alleged? OPP - 4 - 8. Whether the defendant is entitled to file the counter-claim, as alleged? OPP 9. Whether the defendant has no locus standi to file the counter-claim, as alleged? OPP. 10. Relief.” To prove its case, both the parties led their evidence and after hearing the parties, the trial court dismissed the suit of the plaintiffs, whereas decreed the counter-claim filed by the defendant, declaring the defendant as owner of the suit land by way of adverse possession and the plaintiffs were restrained to cause any interference into his possession. The plaintiffs felt aggrieved and assailed the judgment and decree passed by the trial court, in appeal before the learned District Judge that the learned trial court had wrongly decreed the counter claim and dismissed his suit. After hearing the parties, the learned first Appellate Court held that the defendants had not perfected the title by way of adverse possession, as alleged, as such, the impugned judgment passed by the learned Sub Judge decreed the counter claim was held unsustainable. Consequently, set-aside the judgment and decree of the lower court and decreed the suit of the plaintiff, for possession. The defendant in the present second appeal has assailed the findings of the first Appellate Court pleading that it fell in error and came to the wrong conclusion. The defendant was able to prove his adverse possession over the suit land and trial court had properly appreciated the evidence on record and plaintiff did not file the separate appeal against the counter claim, therefore, it caused a miscarriage of justice. - 5 - Shjri Ramakant Sharma, learned counsel for the appellants has vehemently argued that the defendant was able to prove the adverse possession over the suit land by leading cogent and reliable evidence and the learned trial court had rightly appreciated the evidence on record and the first appellate court has given a complete go-by to the law and fact proved on record. Thus, the misinterpretation and misappreciation of the law has caused a prejudice to the defendant. Contra, Miss Madhu Sharma, learned vice counsel for the defendant supported the judgment and decree passed by the learned First Appellate Court. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record, but I find no force in the instant appeal. The plaintiffs have been able to prove on record that their father Shri Roshan Lal son of Shri Laxman Dass had purchased the suit land from Shri Ram Chand, in the year 1972 vide a registered sale deed Ex.P1. The entries of the plaintiffs find mentioned in the Misal Hakiat Bandobast Ex.P2 for the year 1987-88. The plaintiff’s case is that the defendant had encroached upon the suit land in the year 1982. The defendant has claimed the adverse possession over the suit property, for the last about 50 years, as aforesaid in reply to the plaint and took similar stand by filing the counter claim. The defendant in his statement has admitted that the plaintiffs requested him to vacate his possession over the suit land, but he asserted his adverse possession. The overall reading of his statement gives an impression that there was a complete lack of animus on the part of the defendant to hold the suit land adversely to the plaintiffs. There - 6 - is nothing to conclude that the defendant has become owner by adverse possession. Legally the possession of the plaintiffs should be nec vi nec claim nec precario i.e. continuous, peaceful and hostile possession to the knowledge of the plaintiff. The longevity of the possession cannot protect the defendant from his eviction against the true owner in absence of the proof of the necessary ingredients of adverse possession. In fact the defendant, in his statement before the court below had not admitted the plaintiffs to be the owners of the suit land which fact is self destructive. The suit of the plaintiffs is based upon the title and the defendant has failed to prove the adverse possession to non-suit the plaintiffs. Thus there is no misreading and misinterpretation of oral as well as documentary evidence on record by the first appellate court and it rightly set aside the judgment and decree passed by the learned trial court qua the relief of adverse possession claimed by the defendant in his written statement and the counter-claim. There was no need to file a separate appeal against the counter claim as the defendant had already claimed the same relief in his written statement in reply to the relief claimed by the plaintiffs. Further the plaintiff had claimed the possession of suit land in entirety qua whole khasra number, therefore, no tatima or site plan or map was required to be filed or proved. I also do not find anything on record that the first appellate court has infracted order 8 Rule 6-A and Order 7 Rule 1 CPC, hence there are no grounds to interfere with the findings arrived at by the first appellant court. No other points urged or pressed. For the reasons, aforesaid, I find no force in this appeal, the judgment and decree passed by the lower appellate court is affirmed - 7 - and is upheld with all the consequences. The interim order passed on 23.1.1998 in CMP No.57 of 1998 and confirmed on 1 10.3.1998 is hereby vacated. Parties to bear their own costs. (Surinder Singh ) Judge July Ist, 2008. (Pds)