IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.423 of 2000 Date of decision : June 25, 2010 Amir Chand and others …Appellants. Versus Mehngo …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Pt. Om Prakash, Advocate. For the Respondents : Mr. Bhupinder Gupta, Senior Advocate, with Mr. Ajit Jaswal, Advocate. Surjit Singh, J (Oral) This Regular Second Appeal, by the defendants against the findings of the trial Court and the first Appellate Court, rejecting their plea of adverse possession, was admitted on the following substantial questions of law: “1. Whether the admission by the General Attorney of the Plaintiff with regard to the necessary ingredients of adverse possession in favour of the Appellants and against the Plaintiff in respect of the land in dispute is not sufficient to dismiss the suit of Plaintiff and to hold the Defendants to be the owners of the land in dispute by way of adverse possession. 2. Whether the Appellants/Defendants are entitled for a finding that the Defendants/ Appellants have become owners of the land in dispute by way of adverse possession. 3. Whether the Suit of the Plaintiff is barred by limitation.” Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Plaintiff-respondent filed a suit for possession of 315 square metres land bearing Khasra No.772, situate in Mohal Kutlahar, Tehsil Nurpur, District Kangra, pleading that he was owner in possession of the suit land and that in the month of December, 1993, defendants-appellants had forcibly occupied the land and when they were required to vacate it they stated that they would seek demarcation and in case, on such demarcation, it was found to belong to them, they (the defendants) would vacate it, but thereafter they did not vacate it. It was stated that on 12th April, 1996, the defendants finally refused to vacate the suit land. 3. Defendants-appellants contested the suit. They claimed that they had been in possession of the suit land for the last 40 years and that their possession was open, to the knowledge of the plaintiff, notorious, continuous, uninterrupted, peaceful and hostile and the length of their possession being more than 12 years, they have acquired title by prescription. 4. Learned trial Court, after framing issues and recording evidence of the parties, concluded that as per entries in the revenue papers, plaintiff was in possession of the suit land and the defendants had failed to prove their plea that they had been in possession since 1954. Consequently, the suit for possession filed by the plaintiff- respondent was decreed. Appeal filed by the defendants against the judgment and decree of the trial Court has been …3… dismissed by the first Appellate Court, i.e. Court of District Judge, vide judgment and decree dated 3rd June, 2000. 5. I have heard the learned counsel for the parties and gone through the record. 6. Plaintiff himself did not enter the witness-box. He appointed his wife Sarla Devi as his attorney, who appeared as PW-1. No other witness was examined on behalf of the plaintiff. Defendants also did not examine any witness, except defendant No.1 Amir Chand, as DW-1. 7. Plaintiff’s attorney Sarla Devi, in her deposition as PW-1, in no uncertain terms, stated that the possession of the defendants had been illegal from the very beginning and according to her they had been in possession for the last 14-15 years. This statement she made on 27th October, 1998. Suit was filed on 15th April, 1996. In her cross-examination, in reply to a suggestion that the defendants had been in adverse possession of the suit land for the last 40 years, she stated that the suggestion was not correct and that the defendants had been in adverse possession only for the last 15 years. That means, when the suit was filed, defendants-appellants had been in adverse possession for more than 12 years, according to the testimony of PW-1 Sarla Devi. 8. The two Courts below have relied upon the entries in the revenue papers to hold that the appellants had not been in possession since 1954, as claimed by them. …4… The relevant entries are Ex. P-2 Jamabandi for the year 1975-76 and Khasra Girdawari Ex. P-5. 9. View taken by the two Court below is perverse, on the face of it. Plaintiff is being shown in possession of the suit land in the Jamabandi for year 1975-76 and in Khasra Girdawari Ex. P-5 from 1976 to 1982. Presumption of truth does not attach to the Khasra Girdawari. Therefore, on the basis of Ex. P-5, it could not have been said by the two Courts below that the plaintiff remained in possession up to the year 1983. 10. In any case, when there was a categorical statement by plaintiff’s attorney Sarla Devi (PW-1) that the defendants had been in adverse possession for about 13 years, prior to the institution of the suit, the two Courts below were not justified in rejecting the plea of adverse possession raised by the defendants-appellants. The falsity or non-proof of defendants’ claim that they had been in possession since 1954, could not have come in their way of their succeeding in the plea of adverse possession, when plaintiff’s attorney’s statement categorically proved that they had been in adverse possession for more than 12 years, when the suit was instituted. 11. Learned counsel for the respondents submits that admission is not by the plaintiff, but by his attorney and, therefore, it should not be used as admission binding the plaintiff. Submission has been noticed only to be …5… rejected. Sarla Devi was appointed by the plaintiff himself as his attorney not only to pursue the matter on his behalf but also to make statement in the Court. Moreover, she is not a stranger. She is the wife of the plaintiff and, therefore, supposed to be knowing the true facts of the case. 12. In view of the abovestated position, all the three substantial questions of law, on which the appeal was admitted, are answered in favour of the appellants and consequently the appeal is accepted and the judgments and decrees of the two Courts below are set aside. Resultantly, the suit of the plaintiff is dismissed. Appeal stands disposed of. June 25, 2010(sd) ( Surjit Singh ), J