IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 12 of 2001 Date of Decision 30th June ,2011 ________________________________________________________ Partap Singh (died) through LRs ….Appellants Versus Dilbag Singh ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ________________________________________________________ For the Appellants: Mr. Ramakant Sharma, Advocate. For the Respondent: Ms. Vidushi Sharma, Advocate. _____________________________________________________________ Dev Darshan Sud, J (oral) This appeal arises out of the judgment and decree of the learned trial Court dismissing the suit of the plaintiff praying for a decree of delcaration to the effect that he is owner in possession of the suit land as described in the plaint. 2. On the eight settled issues, the learned trial Court holds that succession to the property of late Thelu Ram would be governed by the provisions of Sections 8 and 11 of the Hindu Succession Act. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 3. This finding was challenged before the learned District Judge by way of appeal, which was dismissed. 4. The plaintiff is now in second appeal. The appeal was admitted on 10.5.2001 on the following substantial questions of law: 1. Whether the impugned judgment and decree passed by both the Courts below are the result of misreading, misinterpretation as well as misappreciation of the provisions of Section 11 of the Hindu Succession Act, 1956? 2. Whether both the learned Courts below are right in placing reliance upon the provisions of Section 8 of the Hindu Succession Act, 1956? 3. Whether the findings recorded by the learned Courts below on adverse possession are correct especially when the appellants are in possession to the knowledge of the respondent after the death of Tholu who died in the year 1975 and mutation was attested in favour of the appellants qua one of the properties left in another village i.e. village Bhaloon on 19.7.1976? 5. Adverting to the first two questions there was no dispute with the proposition that inheritance is to be governed by two provisions of law namely 8 and 11 of the Hindu Succession Act. Now, I have not been persuaded to accept the contention of the appellant herein that the interpretation as placed on these two provisions as applicable to the facts of the case is wrong. In fact, the defendant being collateral of deceased Tholu, succession would in fact be governed by Sections 8 and 11 of the Act. Therefore, these questions are decided against the appellant. 6. Question No. 3 is also decided against the plaintiff for the reason that on issue No. 2, the learned Courts below have 3 rightly held that in case of a co-sharer, adverse possession can be claimed only on strict proof of clear ouster rather than mere pleading. Learned counsel appearing for the appellant then urges that the Will executed by late Shri Tholu Ram, which has been filed by him alongwith his application under Order 41 rule 27 of the Code of Civil Procedure, forms the basis of claim of the appellant herein. He prays that this application be allowed. 7. I am not inclined to take into consideration the Will in these proceedings for the reason that it reopens the trial and sets up a new case altogether. However, it will be open to the plaintiff therein to file appropriate petition/claim on the basis of the Will in accordance with law, if so permitted and if within limitation. Appeal stands dismissed. No order as to costs. June 30th, 2011 (Dev Darshan Sud), ms Judge 4