IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.75 of 1996. Judgment Reserved on: 23.9.2008. Date of decision: 30.10.2008. Nand Lal …Appellant-Defendant Versus Swarn Kanta & Ors. …Respondent-Plaintiff Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.G.D. Verma, Senior Advocate with Mr.Romesh Verma, Advocate. For the Respondents:Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. Dev Darshan Sud,J. This is the defendant’s second appeal against the judgment and decree of the two Courts below granting a decree in favour of the plaintiff-respondent for possession of land comprised in Khata No.209 min, Khatauni No.616, Khasra No.1678, measuring 0-02-60, situated in Tikka Keharian, Tehsil Jawali, District Kangra, H.P. The plaintiff, respondent herein, filed a suit for possession of the suit land on the allegations that he is owner alongwith other co-sharers including Shri 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 Durga Prashad, who was impleaded as proforma defendant No.2. The case set up was that the defendant, appellant herein, had no right, title or interest in the land, but in 1984-85, during settlement operations, he got his name recorded in the column of cultivation in the revenue record describing him as Kabiz. This, according to the plaintiff, was an act committed by the defendant-appellant in connivance with the revenue staff and revenue record altered without recourse to due process of law. The defendant, inter alia took the defence of adverse possession claiming his possessory right as having been inherited from his forefathers who had been in occupation of the land for the last more than 100 years. All the other allegations in the plaint were denied. The learned trial Court, on the five settled issues held in favour of the plaintiff. Two issues, namely, (a) whether the plaintiff is owner in possession of the land and (b) whether in 1984 the defendant had illegally connived to take possession of the land, held in favour of the plaintiff. On the question of adverse possession, a specific finding was given against the defendant, appellant herein. These findings were reaffirmed by the learned appellate Court on re- appraisal of the evidence. The defendant is now in appeal before this Court. Three substantial questions of law have been raised for consideration by this Court, namely:- 3 “1. Whether the appellant has acquired ownership rights over the suit land by virtue of his adverse possession? 2. Whether on account of mis-reading of pleadings and mis-appreciation of evidence on record, findings are liable to be set aside? 3. Whether report of the Local Commissioner was liable to be set aside in view of the Objections as raised by the Appellant? Questions No.1 and 2: Taking up the first two questions together, learned counsel appearing for the appellant has taken me through the evidence and findings of the two Courts below. Issues No.1, 2 and 4, namely, “Whether the plaintiff is the owner of the suit land, as alleged?, If issue No.1 is proved, whether the plaintiff was dispossessed from the suit land by the defendant in January, 1984, as alleged?, And If issue No.1 is not proved, whether the defendant has become owner of the suit land by way of adverse possession, as alleged?”, relating to the determination of the title of the respondent-plaintiff and adverse possession of the defendant, appellant herein, the Court considered the oral and documentary evidence of the parties. Exts.P-3 and P-4, Jamabandies for the year 1984-85 prepared during the settlement, show the plaintiff as owner and the defendant as Kabiz over the suit land. The learned appellate Court, on a re-appraisal of the evidence also held that on the basis of the Jamabandies Exs.P-1 to P- 4 8, which do not show the possession of the defendant or any title to occupation. It was only during the settlement for the first time when Exs.P-3 and P-4 were prepared that the defendant-appellant’s name came to be entered. The contention of the appellant herein that he has raised construction in the year 1971-72 was negatived on the oral and documentary evidence when both the Courts below considered that no documentary or oral evidence had been produced on the record to substantiate this allegation. More importantly, the Courts hold that there is no material on the record to show the basis on which the defendant, appellant herein, entered as Kabiz. The contention of the appellant-defendant that his forefathers were in possession of the land, could not be substantiated from the revenue record. It was undisputed that Girdavari (Court inspection) is carried out every six months and there was no record to show that the defendant-appellant or his predecessors-in- interest have been recorded in possession of the suit land at any point of time. The Court holds and rightly so that if the pleading of the appellant-defendant is to be accepted then such fact must be incorporated in the revenue record. In the circumstances, the oral testimony of the defendant DW-1 and Surjan Singh DW-2 was not accepted. DW-3, Karam Singh, Nambardar, who was produced to corroborate this evidence, had admitted in his cross-examination that he was unaware about the location of the land. One other fact for discarding the 5 evidence of DW-2 was that he was inimical to the plaintiff. On the totality of the oral evidence of the defendant, the necessary ingredients of adverse possession, namely, nec vi nec clam nec precario i.e. possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor, was not established. The trial Court holds and rightly so that the defendant had been unable to establish his since he came into possession, the nature of possession and whether this possession was open to the knowledge of the plaintiff. The issues were decided against the defendant, appellant herein. The appellate Court has re-affirmed these findings. Learned counsel for the appellant-defendant submits that both the Courts below were wrong in ignoring the evidence on the record and holding the plaintiff to be the owner of the suit land. This submission cannot be accepted, as both the Courts below as a fact have concluded on the question of the title of the plaintiff which is duly supported by the revenue record. The Courts below also found that the defendant has been unable to establish his purported long possession for the last more than 100 years as pleaded. In-fact, the evidence led by the defendant-appellant has been discarded on sound principles in law that is to say the facts stated did not establish the fact pleaded. One other principle of law invoked by the Court below was that presumption of truth attached to the long 6 standing entries in the revenue record and this has not been rebutted. I cannot be persuaded to take a different view as I find from the record that the submissions made on behalf of the appellant are not substantiated by the evidence on record even if the facts are re-appreciated by this Court in second appeal. Both these questions are decided against the appellant. Question No.3: On the third question, all that need be said is that the report of the Local Commissioner did not support the claim of the appellant-defendant. This was only one factor taken into consideration by the learned appellate Court in dismissing the appeal but was not the sole or the pivotal factor. In other words, the decision is not based solely on the report of the Local Commissioner but on the revenue record and the other evidence to hold that the defendant has no possessory title to the land. In these circumstances, this question is answered against the appellant. In the totality of the facts and circumstances of this case, I do not find any merit in this appeal which is accordingly dismissed. There shall be no order as to costs. All interim orders shall stand vacated. All miscellaneous applications are disposed of. October 30, 2008. (Dev Darshan Sud) (aks) Judge.