IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 339 of 1999. Judgment Reserved on 21.5.2009. Date of Decision : 15.6.2009. Chhitru …Appellant. Versus Rekhia ….Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. K.D.Sood, Advocate. For the respondent : Mr. Deepak Kaushal, Advocate. Kuldip Singh, Judge The appellant was plaintiff and has come in appeal against judgment, decree dated 11.8.1999 passed by District Judge, Sirmaur District at Nahan in Civil Appeal No. 30-CA/13 of 1998 affirming judgment, decree dated 1.6.1998 passed by Sub Judge, 1st Class (I), Paonta Sahib in Civil Suit No. 179/1 of 1994. 2. The facts, in brief, are that the appellant had filed a suit for possession on the basis of title of land comprised in khata khatauni No.167/268, khasra No. 372/140 min, measuring 4 bighas situate at village Rampur Majri, Tehsil Paonta Sahib. The appellant alleged himself to be the owner of the suit land which was mortgaged by him to respondent in October, 1965 for a 1 Whether reporters of Local Papers may be allowed to see the Judgment ? .Yes 2 consideration of Rs. 800/-. It was alleged that respondent has utilized the usufruct of the land more than the double of the mortgage amount and as such, the appellant is entitled to redemption of the suit land without payment of mortgage money. The entries in revenue record showing respondent as ‘Davedar Mushtri’ are wrong, fraudulent and not binding on the appellant. 3. The suit was contested by respondent by filing written statement, he denied mortgage as alleged by the appellant. The defence of the respondent is that appellant had sold the suit land to respondent for a sale consideration of Rs.4000/- by way of oral sale and the possession of the suit land was also delivered to the respondent at the time of oral sale. The respondent is continuously coming in possession of the suit land and appellant has no concern with the suit land. It has been pleaded that in case sale is not proved in favour of the respondent, he has become owner of the suit land by way of adverse possession as the possession of the respondent on the suit land is continuous, hostile, open and to the knowledge of the appellant for more than 12 years. The respondent filed counter-claim for a decree of declaration that he is owner in possession of the suit land. The appellant filed replication and denied the claim of the respondent. On the pleadings of the parties the following issues were framed:- 1. Whether the suit land was mortgaged by the plaintiff with the defendant in the year 1965, with possession for a consideration of Rs.800/-, as alleged? ..OPP. 2. Whether the defendant has earned more than double mortgage amount as profit and as such, plaintiff is entitled to redeem the same without payment of money, as alleged? .OPP. 3 3. Whether revenue entries showing defendant as ‘Davedar Mushtri’ are wrong and fraudulent, as alleged? .OPP. 4. Whether defendant is raising construction over the suit land without any right, title or interest, as alleged?..OPP. 5. If issue No.1 is not proved in affirmative, whether plaintiff is entitled for the possession of the suit land being owner of the property in dispute, as alleged? ..OPP. 6. Whether the suit land was purchased by the defendant from the plaintiff, as alleged ? .OPD. 7. If issue No.6 is not proved in affirmative, whether defendant has become the owner of the suit land by way of adverse possession, as alleged? ..OPD. 8. Whether the suit is not maintainable, as alleged? ..OPD. 9. Relief. The issues No. 1 to 6 and 8 were answered in negative and issue No.7 in affirmative and the suit was dismissed and counter claim was allowed by the trial Court on 1.6.1998. The appeal filed by the appellant was dismissed by District Judge on 11.8.1999, hence the appellant has come in second appeal which has been admitted on the following substantial questions of law:- 1. Whether the suit of the plaintiff for redemption could be held to be barred by limitation once the mortgage of the suit property for consideration of Rs.800/- by the plaintiff in favour of the defendant in 1965 was established? 2. Whether a mortgagee in possession could be permitted to raise a plea of adverse possession and the suit of redemption could be dismissed on the ground of adverse possession? 4 3. Whether the changes effected in the revenue entries made without the order of the competent court or revenue officer could raise the presumption of truth which could be accepted by the court? 4. Heard and perused the record. It has been submitted on behalf of the appellant that the respondent had come in possession of the suit land under a mortgage and, therefore, he cannot raise plea of adverse possession. The principle of once a mortgage always a mortgage was not appreciated by the two courts below. There is no presumption of truth to revenue record wherein change was made without order of the Court or competent revenue officer. The learned counsel for the respondent has supported the impugned judgment, decree. 5. In Ex.P-2, jamabandi 1965-66 the appellant has been recorded as non-occupancy tenant on khasra No. 140 min. In Ex.P- 1 jamabandi 1970-71, Ex.P-3 jamabandi 1990-91 and Ex.P-4 again jamabandi 1990-91, respondent has been recorded as ‘Davedar Mushtri’ on the suit land. Ex.P-5 is rapat No.41 dated 3.10.1965 regarding khasra No.140 min and others. Ex.D-1 is the jamabandi 1975-76 wherein respondent on the suit land has been shown ‘Davedar Mushtri’ but in remarks column, there is an entry that vide mutation No. 441 proprietary rights have been conferred on Chhitru on 5.8.1976 of land comprised in khasra No. 140/1 measuring 13 bighas 13 biswas, besides other land. 6. The trial Court has answered issue No.1 in negative. The learned counsel for the appellant in the lower Appellate Court had stated at the Bar that appellant has failed to prove that the suit 5 land was mortgaged with possession with respondent. In view of this stand of the appellant, no elaborate discussion is required to hold that the suit land was not mortgaged by appellant with respondent. Therefore, question of limitation for redemption does not arise. The adverse possession of respondent on the suit land is on different footing. The substantial question of law No.1 is thus decided against the appellant. 7. In substantial question of law No.2 also the appellant has raised the plea of adverse possession on the basis of mortgage. The appellant himself in the lower Appellate Court through his counsel had stated that he has failed to prove the mortgage on the suit land. There was no relationship of mortgagor and mortgagee between the appellant and respondent, therefore, in law, the respondent could take plea of adverse possession against the appellant. The defence of the respondent is that he had purchased the suit land by way of oral sale for a consideration of Rs.4000/-. In alternative, his case is that he is in adverse possession of the suit land for the last more than 12 years. The defence of the respondent is based upon executed contract as against executory contract. The respondent has failed to prove sale of suit land in his favour by appellant but that does not mean in law he is debarred from taking plea of adverse possession if he fails on his plea of sale. In Ex.P-1 jamabandi 1970-71, Ex.D-1 jamabandi 1975-76, Ex.P-3 jamabandi 1990-91, the respondent has been shown as ‘Davedar Mushtri’ on suit land. The respondent is claiming suit land on the basis of sale . In other words, right from 1970-71 onwards the appellant is claiming 6 title on the suit land. The possession of the respondent on the suit land is admitted by the appellant when he has filed the suit for possession against the respondent. Once the respondent is claiming ownership of the suit land from 1970-71 onwards continuously that means his possession on the suit land is adverse against the appellant with hostile animus and intention to possess from 1970-71 onwards. 8. The learned counsel for the appellant has relied Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Ors. 2008 (4) CCC, 558 (S.C.) wherein the Supreme Court recommended the Union of India to seriously consider and make suitable changes in the law of adverse possession. In that case, the trial Court had accepted the plea of adverse possession but first Appellate Court as well as High Court did not accept the plea of adverse possession and the Supreme Court endorsed the finding of the first Appellate Court upheld by the High Court. In the present case, the two Courts below have concurrently recorded finding of adverse possession of respondent on the suit land and decreed the counter-claim of the respondent. The appellant has failed to point out that finding of adverse possession on the suit land recorded in favour of the respondent is perverse. It is not the case of the appellant that two Courts below have ignored material evidence and considered inadmissible evidence while recording finding of adverse possession in favour of respondent. The two courts below after due appreciation of evidence on record have committed no mistake in returning the finding that the respondent is in adverse possession of the suit land. 7 The substantial question of law No.2 is decided against the appellant. 9. It is the case of the appellant that respondent was put in possession of the suit land in October 1965. According to appellant, the respondent came in possession of the suit land as mortgagee which he has miserably failed to prove. On the other hand, the case of the respondent is that he came in possession of the suit land on the basis of oral sale. The possession of respondent on the suit land has not been denied even by the appellant from October, 1965 onwards. The plea of appellant of mortgage and defence of respondent of sale of the suit land has been answered by both the Courts below in negative. Ex.P-5 rapat No.41 dated 3.10.1965 is with respect to khasra No. 140 min and others. In other words, the change in revenue entry with respect to the suit land in favour of respondent is duly explained by rapat No.41 Ex.P-5 as well as plea of appellant that respondent came in possession of the suit land in October, 1965. The substantial question of law No.3 is answered against the appellant. 10. The two Courts below have rightly appreciated the material on record in returning the finding that the respondent has become owner of the suit land by way of adverse possession. The appellant has failed to make out any case for interference. Resultantly, the appeal is liable to be dismissed. 11. No other point was urged. 8 12. In view of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. June 15, 2009. ( Kuldip Singh ) (GR). Judge.