IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 68 of 2011. Reserved on: 16.06.2011. Decided on: 08.07.2011. _____________________________________________________ Jiwa Nand and another. …Appellants. -Versus- Shetu Devi and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. G.R. Palsra, Advocate. For the respondents. : Mr. Tarlok Chauhan, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 09.09.2010, passed by the learned District Judge, Mandi in Civil Appeal No. 15 of 2010. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) instituted a suit for declaration. According to the plaintiffs, respondent-defendant No. 1 (hereinafter referred to as ‘defendant No. 1’ for brevity sake) was wrongly shown as co-owner of the suit property detailed in the plaint. According to the plaintiffs, the suit land was held by them for the last 30 years and before that, their father was in possession. Defendant No. 1 had been married about 50 years’ back and had never been in possession of the suit land. In 1992, defendant No. 1 asked the father of plaintiffs to give her 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - half share, but the plaintiffs and their father denied the same to her. Defendant No. 1 came to plough the fields on 01.11.1993, but she was not allowed to do so. According to the plaintiffs, the possession of plaintiffs and their father over the suit land became hostile to defendant No. 1 and they were in open and continuous possession of the same and it has ripened into ownership in the year 2005. Defendant No. 1 sold the land to defendants No. 2 to 5 (hereinafter referred to as ‘defendants No. 2 to 5’ for convenience sake) vide sale deed No. 86, dated 01.05.2008. According to the plaintiffs, the sale in favour of defendants No. 2 to 5 was null and void. 3. The written statement was filed by the defendants. According to defendant No. 1, despite her marriage, she had been in joint cultivation and possession of the suit land as co-owner. She had been looking after and jointly managing the property. The plea of adverse possession taken by the plaintiffs was denied. 4. Trial Court framed the issues on 02.09.2008. The suit was dismissed by the trial Court on 16.01.2010. Plaintiffs preferred an appeal before the learned District Judge, Mandi. The same was dismissed on 09.09.2010. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 20.04.2011: 1. Whether both the Courts below have mis-read, misconstrued the oral as well as documentary evidence of the appellants especially the statement of PW-1 Jiwa Nand and statement of PW-2 Devinder Kumar and statement of PW-3 Daulat Ram which has materially prejudiced the case of the appellants? - 3 - 2. Whether law of tacking is applicable in the present case which plea has been wrongly rejected by both the courts below raised by the appellants? 3. Whether the appellants are entitled for a decree of injunction as they have proved their possession over the suit land? 6. Mr. G.R. Palsra, learned counsel for the appellants has vehemently argued that both the Courts below have mis-read and mis-construed the oral as well as documentary evidence, more particularly, statements of PW-1 Jiwa Nand, PW-2 Devinder Kumar and PW-3 Daulat Ram. According to him, both the courts below have not correctly appreciated the principle of tacking. 7. Mr. Tarlok Chauhan, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Plaintiff Jiva Nand has appeared as PW-1. According to him, the name of defendant No. 1 has been wrongly entered in the revenue record as co-owner in possession. According to him, the sale deed made in favour of defendants No. 2 to 5 by defendant No. 1 was wrong, null and void. According to him, defendant No. 1 has no right to dispose of the land. He further deposed that the suit land was in possession of his father and now they were in possession. It is, thus, evident that the plaintiffs came in possession of the suit land after the death of their father. Plaintiffs’ father has died in 1997. The present suit was filed on 25.05.2008 and on this date 12 years were not complete. - 4 - 10. PW-2 Devinder Kumar has also deposed that earlier plaintiffs’ father was in possession and after his death they came in possession of the suit land. 11. PW-3 Daulat Ram has deposed that land revenue in respect of the suit land was paid to him by the plaintiffs. The mere fact that defendant No. 1 has not paid land revenue would not go to show that she has been ousted from the suit land. Defendant No. 1 has appeared as DW-2. She has categorically denied that in the year 1992, she demanded possession of her share, which was denied to her by the plaintiffs and their father. She also denied that she tried to plough field in 1993. According to plaintiff Jiva Nand when he drove away defendant No. 1 from the field, many persons were present on the spot, one of them was Devinder. However, Divender while appearing as PW-2 deposed that when Shetu Devi came to plough the suit land at village Khola Nal, he was at his house which is half k.m. away from the suit land. He was not aware what happened on that day between defendant No. 1 and plaintiffs. There is no tangible evidence led by the plaintiffs to prove adverse possession, except the self serving statement of plaintiff Jiva Nand. The burden was upon the plaintiffs to prove adverse possession. The period when his father was in possession cannot be taken to determine the adverse possession. Plaintiffs, as noticed above, have come into possession of the suit land after the death of their father, which occurred in 1997. The Courts below have correctly appreciated the statements of PW-1 and PW-3. 12. Since the plaintiffs have failed to prove their possession over the suit land, the Courts below have correctly denied the relief of permanent prohibitory injunction to them. - 5 - Since the defendant No. 1 was owner in possession of the suit land, there is no illegality in the sale deed, whereby she has sold the land to defendants No. 2 to 5 on 01.05.2008. 13. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge July 08, 2011. (bhupender) - 6 -