IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 178 of 1997 Date of Decision : July 3, 2008. Saraswati & others …Appellants Versus: Sewak and others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. Dharamvir Sharma, Advocate. For respondents 1 to. Mr. G. R. Palsra, Advocate. 4 & 10 Sanjay Karol, J. (Oral) In view of the fact that Mr. G. R. Palsra, Advocate has caused appearance today, the cost in terms of the order dated 2.7.2008 be not deposited. 2. The appeal was admitted on the following substantial questions of law :- 1. Whether on the facts and circumstances as established in the instant case, a clear case of adverse possession has been made out by the appellants/plaintiffs? 2. Whether the appellants/plaintiffs have acquired ownership rights in respect of the suit land on the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 basis of their hostile, open and uninterrupted possession to the knowledge of the respondents/defendants? 3. Whether the documents including Ext.P2 copy of Misal Haquiat, sale deed No. 497 dated 26.6.85 and other documents have been legally interpreted by the courts below? 4. Whether the vendor can legitimately pass on better title in favour of the vendee and deliver possession of the suit land which possession of the suit land the donors never enjoyed during their ownership. 5. Whether respondents/ defendants No. 1 to 9 had abandoned their rights in favour of the appellants/ plaintiffs in respect of the suit land?” 3. For the purpose of convenience, the appellants herein (original plaintiffs/successors-in-interest) are referred to as the ‘plaintiffs’ and the respondents herein (original defendants/ successors-in-interest) are referred to as ‘the defendants’. 4. The plaintiffs filed a suit for declaration with respect to the suit premises on the ground that the predecessors-in- interest of the defendants had abandoned and given up their rights in favour of the predecessors-in-interest of the plaintiffs and the plaintiffs being in uninterrupted hostile possession of the suit land have become owners by way of adverse possession. The suit was resisted on the ground that Shri Sudama predecessor-in-interest of the defendants was the recorded owner and in joint possession of the suit land and the same 3 continued with the defendants as such in their own rights as owners in possession. 5. On the pleadings of the parties, the trial Court framed the following issues :- “1. Whether the predecessors-in-interest of the defendants had given up their rights in the suit land as alleged? OPP 2. Whether the plaintiffs are owner in possession of the suit land on account of their adverse possession? OPP 3. Whether registered sale deed No. 497 dated 26.6.1985, sale deed No.50, 5, 506 dated 29.6.85 and sale deed No. 509 dated 1.7.85 have not been validly executed by the defendants as alleged, if so its effect? OPP 4. Whether the suit is not maintainable in its present form? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 6. Relief.” 6. In order to prove its case, the plaintiffs examined S/Shri Gulzari (PW-1), Dillu (PW-2), Bhagat Ram (PW-3), Thakur Dass (PW-4) & Sunder (PW-5). In rebuttal, the defendants examined their witnesses and after appreciating the material on record, the learned trial Court held that the predecessors-in-interest of the defendants had not given-up their rights in the suit land and, therefore, the plaintiffs could not be said to be owners in possession having perfected their title by way of adverse possession with respect to the suit land. The sale deeds dated 29.6.1985 and 1.7.1985 were held to be validly 4 executed by the defendants. The trial Court found that the suit was not maintainable in its present form and consequently dismissed the same. 7. Aggrieved by the judgment and decree dated 28.12.1989, in Civil Suit No. 71/89(86) passed by the learned Sub Judge (Court No.1) Mandi, H.P., dismissing the plaintiffs’ suit for declaration and injunction, the “plaintiffs” filed Appeal No. 27 of 1990, which was also dismissed in terms of judgment and decree dated 28.1.1997 passed by the Addl. District Judge, Mandi. 8. The lower Appellate Court, after fully appreciating the material on record and more particularly the statements of S/Shri Bhagat Ram (PW-3), Thakur Dass (PW-4) affirmed the judgment passed by the trial Court and came to the conclusion that the plaintiffs had failed to prove the fact that they were in hostile possession of the suit land, to the exclusion of the original owners. 9. I have heard the learned counsel for the parties and also perused the record. 10. In order to constitute the plea of adverse possession, it is necessary for the plaintiffs to show that they have not only pleaded but also proved the fact that they have been in continuous and uninterrupted possession of the suit premises and that their possession is hostile to that of the original owners which in the present case are the defendants. 5 11. I have carefully examined the records. The averments constituting the plea of adverse possession in the plaint are extremely vague and unspecific. After appreciating the material on record, in my view, the Courts below have rightly arrived at a conclusion that the plaintiffs have failed to show that they are in continuous, uninterrupted and hostile possession of the suit premises, to the exclusion of the defendants. 12. It is settled law that a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead, prove and establish all facts necessary to establish his adverse possession. (Mohan Lal and others v. Mirza Abdul Gaffar and another (1996(1) SCC 639), Virendra Nath v. Mohd. Jamil and others (2004(6) SCC 140) and P.T. Munichikkanna Reddy and others v. Revamma and others ( 2007(6) SCC 59). 13. PW-3 has in fact admitted the fact that defendant No.10 Shri Rirku has constructed a house and a cowshed on the suit land and the remaining portion thereof is also in his possession. Revenue record Ext.P-1 and Ext.P-2 (jamabandi missal hakiyat) proves that the defendants are possessing the 6 land as co-sharers. In view of the same, the defendants have all the rights to transfer the suit land. 14. For the aforesaid reasons, there is no illegality or perversity in the impugned judgments or concurrent findings of facts. The substantial questions of law are answered accordingly. The appeal is accordingly dismissed with no order as to costs. ( Sanjay Karol ), Judge. July 3, 2008. (rana)