IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.8 of 1997 Judgment reserved on:15.5.2010 Date of decision : 05.7.2010 __________________________________________________ Neelam Rani and others … Appellants Versus Smt. Shakuntla Devi and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the appellant : Mr. Rajnish K. Lall, vice Mr. K.D. Sood, Advocate. For the Respondents : None. Kuldip Singh, J The defendants have come in appeal against judgment, decree dated 18.9.1996 passed by learned Addl. District Judge, Kullu in Civil Appeal No.53/95 reversing judgment, decree dated 24.4.1995 passed by learned Senior Sub Judge, Kullu in Civil Suit No.44 of 1991. 2. The facts in brief are that Om Parkash predecessor-in-interest of respondents had filed a suit for permanent prohibitory injunction, in alternative for possession against Vidya Devi and respondents No.2 and 3 on the grounds that land measuring 14 bighas comprised in khasra _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 No.6677 vide jamabandi 1983-84 was owned and possessed by him, respondents have no right, title and interest over the suit land. 3. The respondents and Vidya Devi had contested the suit and took preliminary objections of limitation, maintainability and valuation. On merits, they took the plea that Om Parkash was neither owner nor in possession of the suit land. The revenue entries in his favour are not correct. Daulat Ram their predecessor-in-interest had purchased land from Kehar Singh about 40 years back who handed over possession of the suit land to Daulat Ram at the time of sale of his land. Daulat Ram deceased had fenced the area purchased by him as well as the suit land and raised house and other structures on the suit land and planted fruit trees. They pleaded adverse possession. 4. On the pleadings of the parties the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction? OPP 3. Whether the defendants have acquired titles to the suit land by adverse possession, as alleged? OPD 4. Whether the suit is barred by time? OPD 5. Whether the suit is not maintainable? OPD 6. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP 7. Relief 5. The issues No.1, 2 were answered in negative, issues No.3,5 were answered in affirmative, issue No.6 was not pressed and 3 the suit was dismissed on 24.4.1995. Om Parkash filed appeal An application under Order 41 Rule 27 CPC for additional evidence was filed by Om Parkash predecessor-in-interest of respondents before learned Addl. District Judge. This application was allowed on 15.5.1996, documents Ex.PC jamabandi 1968,69, Ex.PD jamabandi 1973-74, Ex.PE jamabandi 1979-80, Ex.PF jamabandi 1988-89, Ex.PG mutation, Ex.PH Patta and Ex.PI tatima were taken on record. No evidence in rebuttal to additional evidence was produced. The learned Addl. District Judge allowed the appeal on 18.9.1996. In these circumstances, appellants filed the second appeal. Smt. Vidya Devi appellant No.1 died during the pendency of second appeal and her legal representatives were brought on record and the second appeal has been admitted on following substantial questions of law:- 1. Whether the court below has misconstrued the basic document of title Ex.PH and Ex.PG as also the provisions of the rule of ‘Ruppi Jagir’ which has vitiated the finding? 2. Whether the Patta ( Ex.PH) was a valid one and had been conferred by the Ruler of Ruppi Jagir in accordance to his rights and powers? 3. Whether the Jagirdar on the basis of the Punjab Reorganization Act, 1956, and Punjab Jagir Resumption Act, 1957 was competent to grant a valid Patta of Nautor? 4. Whether the oral and documentary evidence especially Ex.PC (JB-1968-69), Ex.PH (Patta) Ex.PG (mutation), Ex.PW-6/A (LC report), and statements of witnesses DW- 1 (Vidya Devi), DW-2 ( Shyam Chand), have 4 been misread and misconstrued by the courts below? 5. Whether the court below has made out wholly new case not pleaded and on the material on record it was established that the defendant/appellants were in possession of the property as owner by way of adverse possession also and the ingredients of adverse possession were duly proved and the suit of the plaintiff was within limitation? 6. I have heard learned counsel for the appellants and have also gone through the record; none appeared on behalf of the respondents. On behalf of the appellants, it has been submitted that learned Addl. District Judge has misconstrued Ex.PH, Ex.PG and provisions of the rule of ‘Ruppi Jagir’, the statements of DW-1 Vidya Devi, DW-2 Shyam Chand, Ex.PC jamabandi 1968-69, Ex.PW-6/A Local Commissioner report. The evidence of adverse possession by appellants has not been properly considered. It has been submitted that prayer was made for setting aside the impugned judgment, decree and restoration of judgment, decree passed by learned trial Court. 7. The substantial questions of laws No.1,4 and 5 are interconnected and therefore, all of them are taken up collectively for consideration. Ex.PW-6/A is the copy of Local Commissioner report in CMA No.57 of 1994, Ex.PW-6/B is the map of disputed structure prepared by Local Commissioner, Ex.PW-6/C is the statement dated 28.5.1994 of Om Parkash made by him at the time of local inspection on 28.5.1994. Ex.PW-6/D is the statement dated 28.5.1994 of Vidya 5 Devi made by her at the time of local inspection. In jamabandies 1968-69 Ex.PC, 1973-74 Ex.PD, 1978-79 Ex.PE, 1983-84 Ex.PA and 1988-89 Ex.PF Om Parkash has been recorded owner in possession of land comprised in khasra No.6677. Ex.PG is the copy of mutation No.2610 dated 15.10.1968. Ex.PH is the copy of patta. 8. The appellants in the written statement have pleaded that the suit land is situated adjoining to the land, house and orchard of defendants. Daulat Ram predecessor of appellants had purchased some land from Kehar Singh about 40 years ago. Kehar Singh was in possession of the suit land and at the time of sale the possession of suit land was also delivered to Daulat Ram who fenced the area and planted an orchard on the suit land. It is thus clear from the stand of the appellant that they have not pleaded any independent title on the suit land except adverse possession. 9. PW-1 Om Parkash has stated that land in question was allotted to him in the year 1968 and he came in possession of the land as owner since then. Now the land in question has been forcibly taken into possession by the defendants. In cross-examination he has stated that the orchard was raised was him. It was suggested to him in cross- examination that the land was purchased by Daulat Ram from Kehar Singh. PW-2 Jatinder Lal has stated that plaintiff is owner of the suit land. PW-3 Karam Chand has also stated that the plaintiff is owner of the suit land. 10. DW-1 Smt. Vidya Devi wife of late Sh Daulat Ram has stated that her husband had purchased land from Kehar Singh. The land in dispute was never cultivated by plaintiff, rather they (defendants) had been enjoying usufruct of land for the last 30 years. 6 DW-2 Shyam Chand has stated that earlier to Daulat Ram, Kehar Singh had been cultivating the land in question. Kehar Singh had sold his ownership land to Daulat Ram. DW-3 Shes Ram has stated that on the land in question apple, plum trees were planted by Smt. Vidya Devi which are 20-25 years old. PW-6 P.S. Kapoor, Advocate has stated that he was appointed Local Commissioner by the Court and has proved report Ex.PW-6/A, plan Ex.PW-6/B, statements of Om Parkash and Smt. Vidya Devi Ex.PW-6/C and Ex.PW-6/D. 11. DW-1 Smt. Vidya Devi in her statement has not stated that Daulat Ram was in possession of the suit land with hostile animus nor she has stated that after the death of Daulat Ram she had been coming in possession of the suit land with hostile animus. DW-2 Shyam Chand has stated that Kehar Singh had sold his ownership land to Daulat Ram. In jamabandies Ex.PA, Ex.PC, Ex.PD, Ex.PE and Ex.PF from 1968-69 to 1988 to 1989 Om Parkash has been recorded owner in possession of the suit land. The presumption of truth is attached to jamabandies. The suit was filed on 3.4.1991, statement of PW-1 Om Parkash was recorded on 21.11.1994 and at that time he has stated that now the defendants have taken possession of the suit land. There is nothing on record to show that prior to the filing of the suit, the defendants were in possession of the suit land. In any case possession howsoever long cannot be termed as adverse possession unless and until such possession is with hostile animus against the true owner. Ex.PW-6/A report of the Local Commissioner is not of any help to the appellants in asmuch as this report, it appears, was submitted by the Local Commissioner in some collateral proceedings arising out of the suit. The respondent was granted land vide patta Ex.PH. The 7 learned lower Appellate Court after due appreciation of evidence on record has rejected the plea of adverse possession of appellant which is a finding of fact and is based upon evidence which has come on record. The appellants have failed to prove their adverse possession on the suit land. The learned counsel for the appellants has failed to make out a case that the learned lower appellate Court has misconstrued oral and documentary evidence on record. The substantial questions of law No.1,4 and 5 are decided against the appellants. 12. The substantial questions of law No.2 and 3 are interconnected; therefore, these substantial questions of law are being disposed of collectively. The learned counsel for the appellants has submitted that the land in dispute was part of Punjab State prior to 1.11.1966 and after 1.11.1966 it became part of State of Himachal Pradesh under the Punjab Reorganization Act, 1966. It has been submitted that all jagirs and muafis were resumed under the Punjab Resumption of Jagirs Act, 1957 (for short Act). In view of the Act the land could not have been allotted to respondent by Jagirdar. Thus respondent has acquired no title over suit land under patta Ex.PH. It has not been disputed that land covered by patta Ex.PH was part of ‘Ruppi Jagir’. It is a different matter that appellants have taken the plea that the land could not have been allotted to respondent in view of the Act. The precise objection of the appellants is that the jagir was resumed under the Act, therefore, the land could not have been allotted by way of patta Ex.PH to respondent by Jagirdar. The part II of the Punjab Reorganization Act, 1966 is from Sections 3 to 8 and Section 5 provides for transfer of territory from Punjab to Himachal Pradesh. 8 Section 88 is of territorial extent of laws which provides that the provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. 13. The learned counsel for the appellants has not relied on any other statutory provisions except the Act in support of his contention that Jagirs and Muafis in the Punjab State were resumed and therefore, the Jagirdar of ‘Ruppi Jagir’ had no right to allot the land in question to respondent vide patta Ex.PH. The Act came into force on 14.11.1957 when it was published in the Punjab Gazette, Extraordinary. The object of the Act is as follows:- “It has been decided by the Punjab Government that all Jagirs and muafis in the State, except military jagirs and jagirs and muafis granted in fvaour of religious and charitable institutions be resumed. The Bill entitled “The Punjab Resumption of Jagirs Bill, 1957”, is designed to give effect to this decision.” It is thus clear that all Jagirs were not resumed under the Act, military jagirs and jagirs and muafis granted in favour of religious and charitable intuitions were left out of resumption under the Act. There is nothing on record regarding showing the nature of ‘Ruppi Jagir’. In these circumstances, it cannot be said that ‘Ruppi Jagir’ was also resumed under the Act before the area comprised of ‘Ruppi Jagir’ was transferred to Himachal Pradesh under the Punjab Reorganisation Act. The appellants have failed to establish that jagirdar of ‘Ruppi Jagir’ 9 was not competent to allot land to respondent vide Patta Ex.PH. The substantial questions of law No. 2 and 3 are decided against the appellants. 14. No other point was urged. 15. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. July 5, 2010 (Kuldip Singh), (sks) Judge.