IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 92 of 1997 Judgment Reserved on : March 8, 2010 Date of Decision : March 18_ , 2010 Himachal Pradesh State Electricity Board Appellant Versus Kr. Satinder Singh and others Respondents Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Baldev Singh, Advocate, for the appellant. For the respondent : Mr. Neeraj Gupta, Advocate, for the respondents. Sanjay Karol, J. This is an appeal filed by the Himachal Pradesh State Electricity Board (in short HPSEB) assailing the impugned judgment and decree dated 4.9.1996 passed by the learned Single Judge of this Court in Civil Suit No. 46 of 1988, titled as Kr. Satinder Singh and others versus Himachal Pradesh State Electricity Board. Whether reports of Local Papers may be allowed to see the judgment? 2 The respondents herein are the original “plaintiffs” and/or their legal representatives and the appellant herein is the “defendant” and are referred to as such hereinafter. The plaintiffs filed a suit for declaration pleading that land measuring 21 bighas 17 biswas comprised in khasra No. 223, khewat No. 36 of jamabandi for the years 1996-97, situated in mauza Saproon, Hadbast No. 58/653, Tehsil Kandaghat, district Kohistan (as it then was), forming part of the erstwhile Patiala East Punjab State Union (PEPSU) was owned and possessed by Kr. Devi Singh, Kr. Shiv Singh and Kr. Hari Singh sons of Kr. Amar Singh of Solan, predecessors-in-interest of the plaintiffs. According to the plaintiffs 6 bighas and 2 biswas of land comprised in khasra No. 223/1 was acquired by the PEPSU Government. The mutation entry to the said effect was attested on 20.2.2001. Hence 15 bighas 15 biswas of land comprised in khasra No. 314/223 was left to be owned and possessed by the plaintiffs. Somewhere in the year 1967, without the plaintiffs’ consent the defendant occupied 7 bighas 17 biswas of their land and the remaining land measuring 7 bighas 18 biswas was wrongly shown to be reflected in possession of Sh. Budhia son of Sh. Nanku as non occupancy tenant. The same was without the consent and knowledge of the plaintiffs. As a consequence of the enactment of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 proprietary rights were conferred upon the legal heirs of Sh. Budhia. Out of this land, vide notification dated 21.5.1980, 1 bigha 10 biswas of land was acquired by the 3 Government. However at the time of mutation, plaintiffs’ land to the extent of 462 sq. metres was wrongly included in mutation No. 98 and shown to have vested in the defendant by virtue of the said acquisition proceedings. The plaintiffs filed Civil Writ Petition No. 534 of 1987 before this Court seeking a direction that the defendant be directed to pay adequate compensation. In reply, the defendant took a plea that since 1968/69 they have been in continuous and peaceful possession of 7 bighas 17 biswas of land as tenants under the plaintiffs hence no compensation was required to be awarded. The Civil Writ Petition was disposed of with a direction to the plaintiffs to file a Civil Suit. Hence the present suit. In the written statement the defendant took a plea that 4 bighas 9 biswas of land forming part of khasra No. 314/223 was acquired for the construction of 66 KV sub station in terms of award dated 12.8.1954 which fact was duly reflected in the revenue record ( Annexure D-2 to D-6) and they perfected their title by way of adverse possession since 1954 with respect to 1 bigha 10 biswas of land. Thus out of 7 bighas 17 biswas of land, defendant is owner in possession of 5 bighas 9 biswas. On the basis of the pleadings of the parties following issues were framed in the suit: “1. Whether the suit is bad for non joinder of necessary parties namely Punjab State Electricity Board and heirs of Sh. Budhia? OPD 4 2. Whether the plaintiffs are estopped from filing the suit due to their acts, conduct, omissions, commissions and acquiescence? OPD 3. Whether the defendant is in occupation of the suit property as a tenant? If so, under whom and on what terms? OPD 4. Whether the plaintiffs are the owners of the suit property? OPP 5. Whether land measuring 462 sq. meters comprised in khasra No. 879, 880, 884 & 886 (according to new settlement record) was owned by the plaintiffs and has wrongly been shown to be owned by the defendant on the basis of acquisition proceedings in case No. 140 dated 3.9.1981. 6. Relief.” Additional issues: “1. Whether the suit is not maintainable on account of the previous acquisition proceedings having been taken with respect to the major portion of the land in question? OPD 2. Whether the defendant has become owner of the suit land by way of adverse possession, as alleged? OPD 3. Relief.” After trial, the plaintiffs’ suit stands decreed to the following effect: “In view of the findings and the reasons recorded above, the suit of the plaintiffs partially succeeds and a decree is passed to the following effect:- that the plaintiffs are declared to be the owners of an area measuring 3 bighas 8 biswas out of the total suit land. 5 The suit regarding the remaining area of the suit land stands dismissed. In the circumstances of the case, the parties will bear their own costs. A decree be prepared accordingly.” The learned Single Judge held the plaintiffs’ suit to be totally maintainable and not bad for non joinder of parties. The plaintiffs could not be said to be estopped from filing the suit due to their acts, conduct, omission, commissions and acquiescence. The defendant was found to be possessed with 7 bighas 17 biswas of land comprised in khasra No. 314/223 as a tenant (Gair-maurusi electricity sub station), out of which 4 bighas 9 biswas of land already stood acquired by the State. With respect to the remaining 3 bighas 8 biswas of land the defendant could not prove its possession to be adverse to that of the plaintiffs. Thus on the basis of the entries in the revenue record the plaintiffs were held to be owner of the remaining land. The area of 462 sq. metres comprised in (new) khasra numbers 879, 880 and 884 to 886 was in fact acquired by the Board and as such plaintiffs ceased to be the owner thereof. The plaintiffs have accepted the judgment and the decree passed by the learned Single Judge of this Court. The controversy in the present appeal thus is narrow. The short question is as to whether the defendant has been able to prove its possession which is adverse over the plaintiffs’ land measuring 3 bighas 8 biswas forming part of khasra No. 314/223. 6 That the plaintiffs are in possession of the same cannot be disputed. In any event it has been so held by the learned Single Judge and is also evident from the revenue record being the entries made in the jamabandies Ext. P-26 and Ext. P-27. The defendant has examined three witnesses namely Sh. D. R. Hira (DW-1), Sh. Chhangu Ram (DW-2) and Sh. Birbal Kapur (DW-3). None of these witnesses have deposed how the defendant has perfected its title by way of adverse possession. In fact it is a case of no evidence. They have not even whispered about the same. None of the defendant’s witnesses have deposed that possession of the defendant is open, continuous and hostile to the knowledge of the plaintiffs. It is not a case of wilful neglect of the property by the owner nor has it been so established. It is also not a case where the plaintiffs have abandoned their property or that they have acquiesced to the defendant’s rights as owner. In fact legal action by them negates such presumption. Hence we find no merit in the appeal and the same is accordingly dismissed. Interim order dated 22.4.1997 is vacated. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 18_, 2010 (PK)