IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 285/1995 Reserved on: 17.11.2008 Decided on:1.1.2009 Sita Devi and others. …Appellants. Versus Laturia and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the appellants : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate for respondents No.1 to 4 and 7 to 9. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 2.6.1995 passed by the learned District Judge, Hamripur in civil appeal No. 24 of 1990. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as ‘the plaintiffs’) filed a suit for declaration by way of permanent injunction alleging that they had been coming in possession of the suit land as entered in Khata No.2 min, khatauni No.5 min, khasra No. 623/608 min, 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 measuring 5 kanals 18 marlas situated in Tikka Patora, Mouja Bahlu, Tehsil and District Hamirpur as per jamabandi for the year 1978-79 and the defendants have no concern with the suit land. The nature of the suit land is Kharetar and it is not cultivable. The same was never given to the defendants nor have they cultivated it by paying rent. It was during the consolidation operation, they came to know about the wrong entries on the basis of which the appellants-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) have been entered in the column of possession as non-occupancy tenant. According to the plaintiffs, the entry is incorrect as under law no person can be inducted as a tenant on Kharetar. The suit was resisted by defendant No.2 Puran Chand. Sh. Puran Chand died during the pendency of the appeal and vide order dated 23.8.1996, his legal heirs were ordered to be brought on record. He had pleaded his possession over the suit land for the last more than 60 years. He has alleged that the possession is hostile, open and uninterrupted and with the result the defendant has become owner by way of adverse possession. The trial court decreed the suit on 29.11.1989. The defendants preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur dismissed the appeal on 2.6.1995. This Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the entries in the revenue record ‘Bila Lagan Ba Tasavar Malkiat Khud’ for the last more than 30 years are sufficient to establish the adverse possession? 2. When there are long standing entries in the revenue record depicting the possession of the defendant- appellants, could the courts below raise this presumption in favour of the owner by applying the principle that ‘possession follows title’? 3 3. When the defendants-appellants were not proved themselves to be in long standing possession which fact was not only supported by the revenue entries but also by the admission of one of the co-owner, could the decree for possession be passed in favour of the plaintiffs merely on the ground that the land recorded in the revenue record is Kharetar land?” Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the judgments and decrees passed by both the learned courts below are contrary to law. He has also strongly relied upon the entries made in the revenue record to establish that his clients had been shown as tenants and in alternative he has argued that they have become owners of the suit land by way of adverse possession. Mr. Ramakant Sharma, Advocate has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter- connected, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. PW-1 Laturia Ram has deposed that the suit land is Kharetar and it is not cultivable. He has deposed that the possession of the plaintiffs over the suit land is in the capacity of owners. The defendants had never remained in possession of the suit land. He has denied that for the last 40 years the defendants had been cutting the grass from the suit land. He came to know about the wrong revenue entries in the year 1986. PW-2 Bhagat Ram has supported the possession of the plaintiffs over the suit land for the last more than 30 years by stating that the nature of the land is Kharetar. According to DW-1 Piar Chand the grass was being cut by the defendants from the suit land which is a Ghasani for the last 40-50 years. 4 The cutting of grass was never objected to by the plaintiffs, who never remained in possession nor cut any grass from the suit land. He has deposed in his cross-examination that the grass is cut by them in the months of November/December and it grows during the rainy season. In the consolidation proceedings, they came to know about the ownership qua the suit land. DW-2 Gorakh Ram has deposed that he was a co- sharer in the suit land and the defendants have been coming in possession of the suit land for the last 50 years. The plaintiffs, according to him, never cut any grass. It is settled law that the tenancy cannot be created on Kharetar. Kharetan is not cultivable land. There may be long standing entries i.e. Ex.D-1 for the year 1929-30, Ex.D-2 for the 1933-34, Ex.D-3 for the year 1941-42, Ex. D-4 for the year 1942-43, Ex.D-5 for the year 1952-53, Ex.D-6 for the year 1961-62 and Ex.D-7 for the year 1971- 72, however, these will not result in the creation of tenancy. The tenancy can only be of cultivable land. The payment of rent is sine qua non for the creation of tenancy. The tenancy is a bilateral act. It was for the defendants to prove how the tenancy was created. Both the learned courts below have come to a right conclusion that the revenue entries showing the defendants as tenants were incorrect and have rightly discarded the same on the basis of the evidence led by the plaintiff. Mr. Bhupender Gupta has also argued that his clients have become owners of the suit land by way of adverse possession. It has come on record that the suit land is Kharetar and the gross grows in the month of July which is cut in the months of November/December. It was never the case of the defendants that they have ever cultivated the suit land. DW-1 Piar Chand has deposed that the defendants had been cutting the grass from the suit land for the last more than 40-45 years. Their possession was never objected to by the plaintiffs. To similar effect is the statement 5 of DW-2 Gorakh Ram. DW-2 Gorakh Ram has also supported the version of DW-1. The land being Kharetar remains barren for nine months. The defendants have also taken a plea that the land in question was given to the defendants by the ancestors of the plaintiffs. They have claimed themselves to be non-occupancy tenants over the suit land. These are mutually destructive pleas raised by the defendants. The defendants cannot claim the adverse possession of the suit land against the owners if they are claiming themselves to be the tenants as well. Simply cutting the grass from the suit land will not make the defendants owners of the suit land. It is necessary to establish plea of adverse possession that possession was open, hostile, peaceful, and continuous and to the denial of the true owner’s title. The defendants have failed to prove the basic ingredients of the adverse possession. They had been cutting the grass only for three months in a year. Consequently, there is no merit in this appeal and the same is dismissed. There will, however, be no order as to costs. 1.1.2009 (Rajiv Sharma ), J. *awasthi*