1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RSA. NO. 206 of 1998. Judgment Reserved on: 5.8.2008 Date of Decision: 6.8.2008 Chandu and another ……………Appellants Versus Kaushlya Devi and another …… Respondents Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? No For the appellants: Mr. J.R. Thakur, Advocate. For the respondents: Mr. Rakesh Jaswal, Advocate, for respondent No.1. None for respondent No.2. Kuldip Singh, J The plaintiffs have filed the present appeal against judgment, decree dated 1.10.1997, passed by learned District Judge, Bilaspur in Civil Appeal No.66 of 1989, reversing judgment, decree dated 31.8.1989, passed by learned Sub Judge Ist Class, Ghumarwin, District Bilaspur in Case No.117-1 of 1986. 2. The brief facts of the case are that the appellants filed a suit for declaration that they and Sita Ram proforma respondent _____________________________ whether reporters of Local Papers may be allowed to see the Judgment?Yes 2 No.2 are owners in possession of the suit land, by way of adverse possession and entry in the revenue record showing respondent No.1-defendant Kaushalya Devi owner in possession to the extent of 1/3rd share over the suit land is wrong and for decree of permanent prohibitory injunction, restraining the respondent No.1 for causing interference on the suit land land. 3. The further pleaded case of appellants is that the suit land comprised in khasra No.368 in revenue record is shown to be owned and possessed by the appellants and proforma respondent No.2 to the extent of 2/3rd share and respondent No.1 to the extent of 1/3rd share. It has been pleaded that the respondent No.1 vide agreement dated 27.9.1966, sold her share to the appellants and proforma respondent No.2 and possession was also handed over to them. The respondent No.1 was asked many times to execute and register sale deed of suit land in their favour but she had been putting off the matter on one pretext or other. It has been pleaded that appellants and proforma respondent No.1 are in possession of suit land since 27.4.1966 (sic 27.9.1966) peacefully, continuously, openly and hostile to the interest of the respondent No.1. Therefore, they have become owners of the share of respondent No.1 by way of adverse possession. On 30.4.1986 respondent No.1 had threatened to interfere and dispossess the appellants from the suit land and therefore, the suit was filed. 3 4. The suit was contested by the respondent No.1 by filing written statement, wherein preliminary objections of maintainability, limitation, jurisdiction, valuation, verification, lack of cause of action, estoppel and locus standie of the appellants to file the suit were taken. The respondent No.1 admitted that the parties are co-sharers on the suit land. She denied having executed any agreement as claimed by appellants. She denied that possession of the suit land was handed over to appellants. She denied the claim of adverse possession of the appellants on the suit land. The appellants filed replication to the written statement of respondent No.1 and reiterated their stand. The learned Sub Judge on 31.8.1989, decreed the suit and declared that appellants and proforma respondent No.2 had become owners of the suit land by way of adverse possession. The respondent No.1 was also restrained from causing interference on the suit land. The judgment, decree dated 31.8.1989 was assailed by respondent No.1 in appeal and learned lower appellate Court on 1.10.1997 accepted the appeal and dismissed the suit. The present appeal has been filed by appellants against judgment, decree dated 1.10.1997, which has been admitted on following substantial question of law:- “Whether the lower court has wrongly held that appellants have failed to prove that they have perfected their title to the suit land by adverse possession”? 4 5. I have heard Mr. J.R. Thakur, learned counsel for the appellants and Mr. Rakesh Jaswal, learned counsel for the respondent No.1 and gone through the record. Learned counsel for the appellants has submitted that the learned lower appellate Court has not properly appreciated the material on record and has erred in returning the finding that the appellants have not acquired title on the suit land by way of adverse possession. Learned counsel for the respondent No.1 has submitted that no substantial questions of law is involved in the appeal. He has submitted that the claim of the appellants is based upon agreement dated 27.9.1966 and therefore, there is no question of adverse possession of the appellants on the suit land. The learned counsel for respondent No.1 has supported the impugned judgment, decree. 6. The suit of the plaintiffs is based upon agreement dated 27.9.1966 Ex.PW-2/A. In para-4 of the plaint, the appellants have pleaded that they asked respondent No.1 time and again to execute a registered sale deed but respondent No.1 had put off the matter every time. In para-5 of the plaint the appellants have pleaded that they and proforma respondent No.2 have become owners of the suit land by way of adverse possession with effect from the date of agreement. The appellants have filed suit on the basis of executory contract being agreement dated 27.9.1966. The appellants have claimed possession of the suit land on the basis of agreement dated 5 27.9.1966 Ex.PW-2/A. In Achal Reddi vs. Ramakrishna Reddiar and others, AIR 1990 SC 553, It has been held by Hon’ble Supreme Court that the purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the present case the appellants have projected that on the basis of agreement Ex.PW-2/A, the respondent No.1 had agreed to execute sale deed later on, but she had put off the execution of the sale deed on one pretext or other. This plea implies that appellants admitted respondent No.1 to be the owner of suit land and once their possession on the suit land is permissive under agreement Ex.PW-2/A they cannot be heard to plead adverse possession in presence of agreement Ex.PW-2/A. The adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of alleged possession is legal under the agreement Ex.PW-2/A then the alleged possession of appellants cannot be adverse to respondent No.1. The learned lower appellate Court has rightly appreciated the material on record in returning the finding that appellants are not in adverse possession of suit land. It is a finding of fact. The appellants are claiming possession on the suit land on the basis of agreement to sell Ex.PW-2/A, therefore their alleged possession on the suit land is not better then permissive possession. The substantial 6 question of law is decided against the appellants as well as proforma respondent No.2 and in favour of respondent No.1 7. No other point was urged. 8. The result of above discussion, appeal fails and is accordingly dismissed. No costs. ( Kuldip Singh) Judge August 6, 2008 (sks)