IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No.175/1998. Date of Decision : 4th July, 2008. Nanak Chand and others. …Appellants. Versus: Roshan Lal and others. Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 Yes. For the appellants: Mr. Ramesh Sharma, Advocate,vice Mr.N.K.Thakur,Advocate . For Respondents. Mr.Ajay Sharma, Advocate. Sanajy Karol, J (Oral). The present appeal arises out of the concurrent finding of fact recorded by the courts below. Respondents No. 1 to 3 herein as plaintiffs (hereinafter referred to as the ‘plaintiffs’) filed a suit against the present appellants as defendants (hereinafter referred to as the ‘defendants’). In the suit a prayer was made for a decree by way of declaration that the land measuring 1 kanal 11 marlas out of the land measuring 9 kanals 10 marlas comprised in Khewat No. 2 min, Khatauni No. 2 min, and old Khasra No. 910 and new Khasra No. 359 (the suit land) be declared to be owned and possessed by the plaintiffs and the entries as reflected in the Jamabandi for the years 1970-71, 1975-76 and 1980-81 showing the ownership to the contrary 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 be declared null and void. In the alternative a decree for the possession of the suit land was also prayed for. The plaintiffs’ suit was contested by the defendants on the ground that the jurisdiction of the Civil Court was barred; the plaintiffs had acquiesced to the right of ownership of the defendants; the suit is bad for non- joinder of necessary parties; the defendants had become owners by way of adverse possession and they being in possession of the suit land for a long time, therefore, the suit was barred by limitation. On the basis of the pleadings of the parties, the trial Court framed the following issues; 1. Whether the plaintiffs are owners in possession of the suit land and the revenue entries in favour of defendants 3 to 6 and predecessor-in-interest of defendants 9 to 16 are wrong and false, as alleged?. …OPP. 2. Whether the suit is within time? . ..OPP. 3 Whether the suit is barred U/s 57 of the H.P. Consolidation of Holding Act?. …OPD. 4. Whether the plaintiffs are estopped by their act and conduct? …OPD. 5. Whether the suit is not maintainable?. …OPD. 6. Whether the suit is bad for non-joinder of necessary parties?. …OPD. 7. Relief. In order to prove its case, Roshan Lal-plaintiff examined himself as PW-1 and placed on record Jamabandi 3 for the years 1986-87 (Ext. P-1), 1970-71 (Ext.P-2 and Ext.P- 3), 1975-76 (Ext.P-4) and 1980-81 (Ext.P-5) . Defendant-Nanak Chand examined himself as DW-1 and placed on record the revenue entries being copies of Jamabandi for the years 1970-71 (Ext.D-1), 1965-66 (Ext.D-2), 1938-39 (Ext.D-3), 1930-31 (Ext.D-4), 1926-27 (Ext.D-5), 1922-23 (Ext.D-6), 1980-81 (Ext.D-7) and 1986- 87 (Ext.D-8). Appreciating the material on record, the trial court came to the conclusion that the jurisdiction of the Civil Court was not barred as the order passed by the Consolidation Officer conferring proprietary rights, evident from Ext.D-8, was a nullity as the Land Reforms Officer had no jurisdiction to confer the same. The court also found that from the revenue entries and more particularly Ext.P-2, the status of the defendants in the suit land was shown to be that of a tenant without having paid any rent i.e. ‘Bella Lagan Babja Gair Majrua’. The court, therefore, came to the conclusion that the defendants had no right whatsoever in the suit land and the suit of the plaintiffs was accordingly decreed with the direction that the possession of the suit land be handed over to the plaintiffs. The suit was decreed vide judgment and decree dated 7th August, 1992 passed by Sub Judge, Ist Class, Court No. II, Amb, District Una, H.P. in Civil Case No. 408 of 1989. 4 Aggrieved by the same, the defendants preferred Civil Appeal No.57 of 1996 which was dismissed by the District Judge, Una, H.P. on 1st January, 1998 upholding the decree passed by the court below. The present appeal was admitted on the following substantial question of law: 1. Whether on the facts pleaded and proved the impugned judgments and decrees are able to be executed and what is the effect of passing in executable decrees?. 2. Whether the impugned judgments are vitiated by mis-construing and mis-interpreting the revenue records showing the possession and ownership of the defendant appellants?. 3. Whether the Civil Court has the jurisdiction to entertain the lis involving the question of proprietary rights under the H.P. Tenancy and Land Reforms Act?. 4. Whether the civil court has the jurisdiction to adjudicate upon the matter arising out of the litigation during the consolidation operation?. In support of his contention, the learned counsel for the appellants has referred to and relied upon the judgments delivered by this Court in Baldev Singh and others Vs. Siri Ram , Latest HLJ. 2008 (HP) 642 and Kamlesh Kumari and another Vs. Piaro Devi and others 2007 (3) Shim. L.C. 469 to contend that the Civil Court has no jurisdiction to 5 entertain the civil suit in view of Section 57 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971.(hereinafter referred to as the ‘Consolidation Act’) It has also been argued that the defendants being in uninterrupted, exclusive and hostile possession of the suit land from the year 1922, the present suit is also barred by limitation. Mr.Ajay Sharma, learned counsel for the respondents has supported the judgment for the reasons set out therein and has clarified that the orders passed/proceedings under the ‘Consolidation Act’ are not subject matter of challenge or adjudication in any of the proceedings. I have heard learned counsel for the parties and also perused the record. From Ext. P-1, Ext.P-2 and Ext.P-3, it is clear that the defendants up to the year 1971 have been recorded to be in possession as tenants without payment of any rent. Such entries have not been disputed by the tenants at any point in time. In fact, it has come in evidence of defendant No.1 that he has not paid any rent to any person at any point in time. There is no material on record to show that any rent whatsoever was paid to the plaintiffs. It is only in the year 1975-76 when the defendants are shown to be the owners of the suit land. Their status changed in terms of revenue entry (Ext.P-4) which continued as such in the revenue record 6 Ext.P-5 (Jamabandi for the year 1980-81) . The plaintiffs filed a suit in the year 1988. It is a matter on record that consolidation proceedings were affected in the year 1986-87. In the present suit the plaintiffs have challenged the entries before the consolidation proceedings, therefore, in my view, the bar stipulated under the provisions of the Consolidation Act shall not be applicable in the facts and circumstances of the present case. In this background the decision referred to and relied upon by the learned counsel for the appellants are distinguishable. In those cases the facts are that certain steps had been taken by the parties by virtue of which proprietary rights had been conferred during the consolidation proceedings. The plea of limitation by virtue of adverse possession, in my view, cannot be allowed to be taken by the appellants for the simple reason that the trial Court has categorically recorded that on 22nd May, 1992 Shri K.S. Rana, Advocate appearing on behalf of the defendants had withdrawn the plea of adverse possession. Further the plea of adverse possession is vague, un-specific and simply because the defendants have occupied the suit land for a long period, that fact by itself would not confer any right of title upon them. It has to prove as to when and in what manner their possession has become hostile qua the rightful owners. During the course of hearing the learned counsel for the appellants has also argued that the defendants have 7 acquiesced to the plaintiffs’ continuation of the possession on the suit land. In my view, this contention needs to be rejected for the reason that the plaintiffs being the rightful owners were entitled for the possession of the suit land in accordance with law as mere permissive possession even for a long period of time would not be taken as a manifestation of the intention to abandon the ownership. In any case there is no proof of acquiescence. The first appellate Court has already held as under: “The suit has been filed by the respondents/plaintiffs for correction of entry in the record of right on the ground that they are owners in possession of the suit land and the appellants have been erroneously recorded as tenant without payment of Lagan. The respondent/plaintiffs have as such sought the correction the entry in the record of right as per provision of Section 46 of Consolidation Act. The subject matter of the suit has not arisen out of consolidation. The title of the respondents/plaintiffs have been denied to by the appellants/defendants. Thus the suit is not barred under Section 57 of the Consolidation Act.” Nothing has been argued to substantiate the substantial question of law No.3. In my view, the courts below have correctly appreciated the revenue entries and the evidence (documentary and oral led by the parties). The question of law is answered accordingly. 8 For the aforesaid reasons, I see no reason to interfere. The judgment rendered by the Court below is totally in accordance with law and there is no illegality or perversity in the same. Consequently, the appeal is dismissed. (Sanjay Karol), Judge. July 4, 2008(R)