IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.:463/2007 Decided on. 9.7.2008 Gagan Singh and others …Appellants. Versus Duni Chand. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellants : Mr. J.R. Thakur, Advocate. For the respondent : Mr. B.R. Verma, Advocate. Rajiv Sharma, J. (oral) This Regular Second Appeal has been filed against the judgment and decree dated 5.12.2006 passed by the learned District Judge in Civil Appeal No. 46 of 2006. The brief facts necessary for the disposal of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a civil suit claiming a decree for permanent prohibitory injunction restraining the appellants-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) from making interference or dispossessing the plaintiff from the land as detailed in the plaint. The defendants contested the suit by filing a written 1 Whether the reporters of Local Papers may be allowed to see the judgment?. No. 2 statement. The plaintiff filed a replication to the written statement. The trial court on the basis of the oral as well as documentary evidence decreed the suit on 20.10.2005. The defendants feeling aggrieved by the judgment and decree of the learned Civil Judge (Junior Division) filed an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur dismissed the appeal on 5.12.2006. Mr. J.R. Thakur, Advocate has strenuously argued that the judgments and decrees passed by both the learned courts below are not sustainable in the eyes of law. He has also contended that the defendants have proved their possession over the suit land by way of adverse possession and the learned trial court has not correctly decided the application under Order 26 Rule 9 to the Code of Civil Procedure preferred by the defendants. I have heard Mr. J.R. Thakur at length and have also perused the record. The plaintiff has appeared as PW-1. He has deposed that the suit land is in his ownership and possession along with other co-sharers. In order to prove the factum of ownership- and possession over the suit land, he has produced on record the copy of jamabandi Ex.P-1. He has further stated that the land in suit was bought by him alongwith other co-sharers from Ravinder and Vijender. In his cross-examination, he has deposed that possession over the suit land alongwith other land sold to him was delivered at the time of the sale. He has denied the suggestion that the defendants have cultivated the land and have raised the orchard over the suit land since 1969. PW-2 Rajinder Kumar has duly supported the version of PW-1. He has stated on oath that maize crop is cultivated regularly over the suit land. The nature of the land as per the revenue record is “Ek-fasli”. The defendants to prove their case have examined 3 Sh. Chamel Singh as DW-1. He has simply testified that the defendants are in possession of the suit land where a well and tube-well have been installed. In his cross-examination, he could not tell the area where the well has been installed and orchard planted. He has further stated that he is in possession of the land given to him by his predecessor-in-interest. He has admitted in his cross-examination that the Patwari makes the crop inspection every six months. DW-2 Parmodh Singh has testified that there is a well, tube-well and orchard in the suit land, which are quite old and it was in existence for the last 17-18 years. In his cross-examination, this witness has stated that he did not know that he is deposing about Khasra Nos. 1679/1507 and 1697/1521. He could not disclose on which khasra number, the well is situated and the orchard is planted. DW-3 Partap Chand has stated that the plaintiff had never objected to the possession of the defendants over the suit land. He was also not sure to which land he was referring to while appearing as DW-3. It is evident from the statements of PW-1 and PW-2 along with copy of jamabandi that the plaintiff is in possession of the suit land. Mr. J. R. Thakur also contended that the defendants have become owner of the land by way of adverse possession. The defendants have failed to establish on what day, they came in possession on the suit land and what was the nature of their possession. The defendants though have pleaded that they were in possession of the suit land since 1946 but the said fact was not supported by cogent and reliable evidence. It was for the defendants to prove that their possession was open and hostile. DW-2 and DW-3 are not even aware of the actual khasra numbers with respect to which they have deposed before the Court. DW-1 has shown his ignorance about the Girdawari periodically conducted by the Patwari. He has not stated that the Girdawari conducted by the Patwari was either 4 wrong or contrary to the actual position over the suit land. The defendants have failed to prove their claim of adverse possession before both the courts below. The courts below have come to a right conclusion that the plaintiff was in possession of the suit land and the defendants had no right or title over the suit land on the basis of the oral as well as documentary evidence. The plea of adverse possession raised by the defendants has rightly been rejected by both the courts below since they have failed to establish that they were in continuous, uninterrupted and hostile possession of the suit land. Since there was no dispute with respect to the boundaries of the suit land, the application preferred by the defendants under Order 26 Rule 9 of the Code of Civil Procedure has rightly been rejected by the learned trial court. There is no question of law much less any substantial question of law involved in this appeal. Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There shall be no order as to costs. July 9, 2008 (Rajiv Sharma ), J. *awasthi*