`IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 189 of 2005. Reserved on: 11.03.2011. Decided on: 30.03.2011. _____________________________________________ Parsino Devi. … appellant. Versus Thunia and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant : Mr. K.D. Sood, Advocate with Mr. Mukul Sood, Advocate. For the Respondents : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Kangra at Dharamshala in civil Appeal No.39-N/XIII of 2004, dated 1.1.2005. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - 2. Material facts necessary for adjudication of this regular second appeal are that the respondents/plaintiffs (hereinafter referred to as ‘the plaintiffs’ for brevity sake) have filed a suit to the effect that they are co-sharers in the suit land comprised in Khata No.33 min, Khatauni No.42 and Khasra Nos. 89 and 91, measuring 0-01-74 Hectares, situate in Mohal Gatla, Mauza Kukher Khawara, Tehsil Nurpur, District Kangra. It was alleged that the suit land was never given to the appellant/defendant (hereinafter referred to as ‘the defendant’ for convenience sake) nor was she ever inducted as tenant. Her possession over the suit land was illegal and unauthorized from October, 1993. The defendant without their knowledge and consent got herself recorded as Kabiz over the suit land. The plaintiffs were cultivating the suit land. 3. The suit was contested by the defendant. On merits, it was averred that the plaintiffs had exchanged their land with the defendant in the year 1972 and since then she was in possession of the suit land by virtue of exchange. The learned trial Court framed the issues on 8.10.2000. The learned trial Court decree the suit vide judgment and decree dated 25.11.2003. The defendant preferred an appeal before the learned District Judge, Kangra at Dharamshala. He dismissed the same on 1.1.2005. Hence, this regular second appeal. - 3 - 4. This regular second appeal was admitted by this Court on 20.9.2005. The following order was passed by the learned Single Judge on 20.9.2005:- “After hearing the learned counsel for the parties and perusing the record, in my opinion, various substantial questions of law, as detailed in the grounds of appeal, arise for determination in this appeal. Appeal admitted.” 5. Mr. K.D. Sood, learned counsel for the appellant has strenuously argued that the judgments and decrees of both the Courts below are contrary to the well settled principles of law. According to him, his client has proved the exchange of land and has also proved adverse possession. 6. Mr. Bhupender Gupta, learned Senior Advocate for the respondents has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the records carefully. 8. Initially this regular second appeal was directed to be tagged with regular second appeal No.12 of 2006. However, during the course of hearing it transpired that the facts of both the appeals are distinct and separate. Even though these regular second appeals were heard together, but are disposed by separate judgments. - 4 - 9. Mr. K.D. Sood, learned counsel for the appellant has vehemently argued that his client has proved the exchange of suit land with the plaintiffs in the year 1972. Settlement has taken placed in the village in the year 1982-83. Consolidation has taken place in the year 1985-86. In these proceedings, previous Khasra numbers were changed. The defendant has not placed on record any deed to prove that the suit land was ever exchanged with her by the plaintiffs. 10. Defendant has appeared as DW-1. According to her, the suit land was exchanged by the plaintiffs, measuring 6 marlas. She has expressed her inability to disclose that the alleged exchange was ever entered in the Rapat Rojnamcha by the Patwari. Similarly, DW-2, Gian Singh could not prove the exchange. He belongs to a different village. Even in the copy of jamabandi, Ex.D-1 for the year 1997-98, Khasra Nos.74, 87,107 and 122 are shown to be possessed by Jaishi as Kabaz and defendant is not recorded as Kabaz. 11. Mr. K.D. Sood, learned counsel for the appellant has strenuously argued that the learned trial Court has not framed any specific issue on the question of adverse possession, raised by the defendant. The learned trial Court on the basis of evidence led by the parties has returned the finding that the defendant has failed to prove adverse possession. Even though the specific issue was not framed, the parties understood their - 5 - respective cases and rival contentions and have led their respective evidence. 12. Their Lordships of Hon’ble Supreme Court in Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 have held as under (para-6):- “On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a pasta in favour of her predecessors existed, and had teased the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights through his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikarn service inarn, parties well understood that the two cases opposed to each other were of Dharmila Sarvaumbala inam as aginst a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mix-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not - 6 - be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We, therefore, proceed to consider the central point in the case, to which we have amply referred already.” 13. No other point was urged. 14. Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this regular second appeal and the same is dismissed, so also the pending application(s), if any. The interim-orders dated 20.4.2005 and 20.9.2005 are vacated. No costs. CMP No.317 of 2005. 15. Since the appellant has failed to prove the exchange of land either by oral or documentary evidence, this application is not maintainable. As such, the same is dismissed being devoid of merit. (Rajiv Sharma), Judge. March 30, 2011. (sck).