IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 184 of 2011 Date of decision: 29.7.2011 Karam Singh …..Appellant. Vs. Roshni Devi and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the appellant : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the Respondents : Mr. Mohan Sharma, Advocate. Kuldip Singh, J (Oral) The appellant is plaintiff and has assailed the judgment, decree dated 3.1.2011 passed by learned Addl. District Judge, Mandi in Civil Appeal No.43 of 2008, affirming judgment, decree dated 31.5.2008 passed by learned Civil Judge (Sr. Division), Karsog in Civil Suit No.81/2006. The parties in the judgment are referred to plaintiff and defendants. 2. The brief facts of the case are that plaintiff had filed a suit for declaration to the effect that entries of suit land comprised in khasra No.745, measuring 0-5-10 bighas showing defendant No.3 as owner of ½ share be declared null and void. The respondent No.2 be directed to execute sale deed of the suit land in favour of plaintiff on the basis of agreement dated 13.7.1974 Ex.PW-1/E. The sale Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… deed No.294 dated 7.6.2006 executed by defendant No.2 in favour of defendant No.1 and the mutation No.371 attested on the basis of sale deed be declared null and void. The plaintiff has prayed relief of permanent prohibitory injunction restraining the defendants from alienating, mortgaging and transferring the suit land in any manner. The plaintiff in alternative has prayed that he has become owner of the suit land by way of adverse possession since 13.7.1974. 3. The suit was contested by defendant No.2 by filing written statement in which he took preliminary objections of maintainability, non-joinder and mis-joinder of necessary parties, limitation, court fee, jurisdiction, estoppel and no enforceable cause of action. On merits he denied that defendant No.2 alongwith deceased Karam Singh, Smt. Ghaimbo, Gulabi, Ganpati and Tara Devi entered into agreement to sell, mortgage the suit land as claimed by plaintiff. He has asserted that he had delivered the possession of the suit land in favour of defendant No.1 on the basis of sale deed. He admitted that he had sold the land comprised in khasra Nos. 740/1, 744,740 total measuring 1-11-15 bighas but he denied that he had entered into any agreement with plaintiff. The land comprised in khasra No.745 was recorded in absolute ownership of defendant No.1 and deceased Karam Singh. 4. The defendants No.1 and 3 had contested the suit by filing separate written statement. They have also taken more or less same preliminary objections as taken by defendant No.2. On merits, they have stated that they are the absolute owners in possession of the suit land. …3… 5. The plaintiff filed replications to the written statements and reiterated his stand taken by him in the plaint. The trial Court has recorded a finding that defendants No.1 and 3 are in possession of the suit land. The trial Court doubted the genuineness of the agreement Ex.PW-1/E. The trial Court dismissed the suit on 31.5.2008. The plaintiff filed an appeal which has been dismissed by learned Addl. District Judge on 3.1.2011, hence second appeal. 6. I have heard the learned counsel for the parties and have also gone through the records. Mr. G.D. Verma, Sr. Advocate has submitted that the learned lower appellate Court has not considered the evidence led by the parties. The lower appellate Court has made out completely a new case which was not put forward by the parties. The appellant is in possession of the suit land on the basis of agreement dated 13.7.1974 Ex.PW-1/E. The plaintiff has established his case and without conceding that the plaintiff is not entitled to specific performance of the contract dated 13.7.1974, the plaintiff is entitled to a decree of permanent prohibitory injunction on the basis of agreement since the plaintiff has proved his possession on the suit land. It has been submitted that the lower appellate Court has not properly appreciated the material on record while deciding the appeal. 7. The learned counsel for the respondents has submitted that no fault can be found with the findings of the trial Court in as much as the basis of the suit is of agreement dated 31.7.1974. The suit was filed on 22.12.2006. The limitation for filing a suit for specific performance is governed by Article 54 of the Indian Limitation Act, …4… 1963. The suit is hopelessly time barred. The suit has been filed by the plaintiff on the basis of agreement dated 13.7.1974 Ex.PW-1/E. 8. In the plaint the prayer has been made for specific performance of contract on the basis of agreement dated 13.7.1974, setting aside sale deed No.294 executed by defendant No.2 in favour of defendant No.1, permanent prohibitory injunction and in the alternative plaintiff has become owner of the suit land by way of adverse possession. The trial Court has seriously doubted the genuineness of the agreement dated 13.7.1974 Ex.PW-1/E. The learned lower appellate Court has dismissed the appeal by recording other reasons and also approving the findings recorded by trial Court. 9. The defendant No.2 has sold the suit land in favour of defendant No.1. There is nothing on record to show that after agreement dated 13.7.1974 the plaintiff had approached the revenue authority for entering his possession over the suit land. Simply an averment in the agreement that the possession has been handed over on the spot is not rebuttal to the consistent revenue record which is in favour of the other side showing possession of the suit land in their favour. The plaintiff has not produced any documentary evidence in addition to agreement dated 13.7.1974 Ex.PW-1/E showing his possession on the suit land. The learned trial Court has recorded a specific finding while deciding issue No.7 that defendants No.1 and 3 are in possession of the suit land. This finding has been approved by the learned lower appellate Court. 10. The suit has been filed for specific performance of the contract on the basis of agreement dated 13.7.1974. The suit has …5… been filed on 22.12.2006 after about 32 years. The limitation for filing the suit for specific performance of the contract is three years. It has not been shown on what basis the plaintiff is entitled to extension of limitation and how the suit filed in the year 2006 on the basis of agreement dated 13.7.1974 Ex.PW-1/E is within limitation. The Rule 6 of Order 7 CPC provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. There is no such averment in the plant in terms of Rule 6 of Order 7 CPC seeking extension of limitation in filing the suit in the year 2006. The suit on its face in the year 2006 on the basis of agreement dated 31.7.1974 is barred by limitation. 11. The defendant No.2 has sold the suit land in favour of defendant No.1 and this sale has been assailed by the plaintiff in the suit. The plaintiff has failed to make out any case to set aside the sale executed by defendant No.2 in favour of defendant No.1. The plaintiff is also claiming adverse possession on the suit land on the basis of agreement dated 13.7.1974. The claim of the plaintiff for adverse possession on the basis of agreement dated 13.7.1974 is contradictory and it cannot be accepted. The plaintiff on the basis of agreement dated 13.7.1974 cannot be said to be in adverse possession of the suit land. Once the defendants No.1 and 3 are found to be in possession of the suit land then the plaintiff is not entitled to relief of injunction also. 12. The two Courts below have rightly appreciated the material on record. It has not been shown as to how the findings …6… recorded by two Courts below are wrong, nor it has been shown that findings are perverse. The evidence cannot be re-appreciated in second appeal. No question of law much less substantial question of law is involved in the appeal. There is no merit in the appeal which is accordingly dismissed. In view of dismissal of the main appeal, CMP No.353 of 2011 is also disposed of. July 29, 2011 ( Kuldip Singh ), (sks) Judge.