IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 420/2010 Reserved on: 12.12.2011 Decided on:20.12. 2011 ___________________________________________________ Tawari son of Shri Budhe Ram, resident of Suhra Mohalla, House No. 232/4, Mandi Town, District Mandi, H.P. …Appellant. Versus 1. Smt. Leela Devi wife of Shri Om 2. Sh. Shankar son of Shri Om 3. Sh. Montu son of Shri Om 4. Sh. Anu son of Shri Om 5. Shri Amar son of Shri Om All residents of House No. 248/4, Suhra Mohalla, Mandi Town, District Mandi, H.P. …Respondents. Regular Second Appeal under section 100 of the Code of Civil Procedure against the judgment and Decree dated 29.4.2010 passed by the Ld. Addl. Distt. Judge, Mandi in Civil Appeal No. 7/09 affirming the judgment and decree of the Ld. Civil Judge (Sr. Divn), Court No.1 Mandi dated 19.8.2008, passed in Civil 81/2007 (2000), with a prayer to set aside/quash the judgment and decree of both the Ld. Courts below after decreeing the suit of the appellant/plaintiff with costs throughout. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. G.R. Palsra, Advocate. For the Respondents : Mr. Sandeep Sharma, Advocate. _____________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 29.4.2010 rendered by the learned Additional District Judge, Mandi in Civil Appeal No.7 of 2009. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as “defendants’ for convenience sake). According to the plaintiff, suit land comprised in Khewat No. 316, Khatauni No. 474 and 475, Khasra No. 1734/1381 measuring 47.47 square meters and Khasra No. 1382 measuring 20.62 square meters situated in Mauja Suhra Hadbast No. 366/6 Mandi Town, Tehsil Sadar, District Mandi, H.P. is recorded in the ownership and possession of the plaintiff and other co-sharers. Defendants have no right, title and interest in the suit land. They have started raising construction on the part of the suit land. 3. The suit was contested by the defendants. According to the defendants, suit was barred by order 23 rule 4 of the Code of Civil Procedure. The suit was also barred by order 2 rule 2 of the Code of Civil Procedure. According to the defendants, they are in possession of the suit land since the time of their ancestors. Earlier, the predecessor-in-interest was paying rent to other co-sharers of the suit land, who had 3 not been made party in the suit. Defendants are in possession of the suit land. Their possession was open, peaceful, continuous, uninterrupted and hostile to the knowledge of the owners. Thus, they have become owners of the suit land. The house is comprised of two rooms with verandah. The revenue entries were totally wrong. Sh. Banta, father-in-law of defendant, namely, Leela Devi and grand-father of defendants No. 2 to 5 died in the year 1980. 4. Replication was filed by the plaintiff. Issues were framed by the Civil Judge (Senior Division) on 4.5.2002. He dismissed the suit on 19.8.2008. Plaintiff preferred an appeal before the Additional District Judge, Mandi. He dismissed the same on 29.4.2010. Hence, the present Regular Second Appeal. 5. Mr. G.R. Palsra has vehemently argued that both the courts below have erred in law and have also misread and misconstrued the oral as well as documentary evidence. 6. Mr. Sandeep Sharma has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. Plaintiff has appeared as PW-1. He has stated that he is owner in possession of the disputed room and compound of the house. Smt. Attu is his sister. Defendants did not possess this property. In the cross-examination, the plaintiff has admitted that water meter is installed in the name of 4 defendant Leela Devi. He had filed objections with the concerned department. He has not specifically denied in his cross-examination that earlier Banta was in possession of the suit property and thereafter defendants were in possession of the same. He has denied that he had earlier filed civil suit in the court, which was withdrawn. He has admitted that the house having two rooms is situated on the suit land. Defendants have not raised any construction on the suit land. 9. PW-2 Alam Singh has no knowledge about the dimensions of the said rooms, though he has stated that one room is situated on the suit land. 10. Defendant Leela Devi has deposed that the house was constructed by her father-in-law Banta. He has died 25 years ago. The electricity meter and water connection were installed in the name of her husband. 11. According to DW-2 Mahinder Singh, defendants were living in the disputed house and the house never remained in possession of the plaintiff. 12. According to certified copy of jamabandi for the year 1996-97, plaintiff is recorded in the column of ownership alongwith Smt. Attu. In the column of possession, khasra No. 1734/1381 is recorded as Gair Mumkin Sehan in possession of Chander Kumar, Praveen Kumar, Smt. Kala Devi in equal share to the extent of ½ shares, Surender Kumar, Smt. Shanti Devi to the extent of ½ shares through Banta son of Kirpa Ram as tenant. In the column of rent, there is entry of “Kiraya” 5 15/- Mahabar Yafatani Kabij. Khasra No. 1382 is also recorded in possession of the aforesaid persons through Jiwa son of Baldev as tenant and in the column of rent there is entry of “Kiryaya” 13/- Mahabar Eik Manjila Makan Yafdatani Kabij. It is, thus, evident that plaintiff has not been recorded in possession in any part of the suit land. Khasra No. 1734/1381 is recorded as court yard. According to these revenue entries, on Khasra No. 1382, house is situated. 13. Sh. Banta son of Sh. Kirpa was the father-in-law of defendant No.1 and grand-father of defendants No. 2 to 5. There is no tangible evidence placed on record by the plaintiff that Banta was ever evicted from the suit land. Sh. Baldev, who was recorded in possession of Khasra No. 1382 and Smt. Attu have not been arrayed as party. The plea raised by the defendants about the adverse possession has rightly been rejected by both the courts below. 14. The plaintiff has earlier filed a suit against defendant Leela Devi. Certified copy of the plaint in civil suit No. 171/92 titled Tawari versus Leela is Ex. DY. This plaint was presented on 23.7.1992. The plaintiff has specifically pleaded that Chander Kumar, Parveen Kumar, Kala Devi, Surender, Smt. Shanti through Banta son of Sh. Kirpa Ram were recorded as tenant and said Banta has now expired. It was also averred that Smt. Leela Devi, defendant No.1, was daughter-in-law of Banta. He had started construction over the suit land in connivance with proforma defendant Attu. 6 Copy of statement of plaintiff is Ex.DZ. According to this statement, he was not interested in pursuing the suit and suit was dismissed on 30.6.1993. The certified copy of the order is Ex.DX. According to order dated 30.6.1993, defendant Leela Devi was present in the court when plaintiff had withdrawn the suit. No reasons have been assigned why the earlier suit was withdrawn filed against the defendant. The plaintiff has not given the details of the earlier suit filed against the defendant. Plaintiff has admitted that no new construction has been raised by the defendants. Plaintiff is not in possession of the suit property as per the revenue record. It is in these circumstances that the courts below have come to a right conclusion that the plaintiff is estopped by his own conduct to file the present suit. 15. Accordingly, both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 20.12.2011 *awasthi*