IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 171/2008 Reserved on: 25.11.2011 Decided on:29.11. 2011 _____________________________________________ Inder Singh and others. …Appellants. Versus Ramanand. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. I.D. Bali, Sr. Advocate with Mr. Virender Bali, Advocate. For the Respondent : Mr. Romesh Verma, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 18.1.2008 passed by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No.32-CA/13 of 2007. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent- plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit for permanent 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 prohibitory injunction against the appellants-defendants (hereinafter referred to as ‘defendants’ for convenience sake). According to the plaintiff, he was absolute owner in possession of Khasra No. 252 measuring 1.13 bighas situated in village Lana Cheta. According to him, defendants are stranger to the suit land and they were interested to grab the suit land by dispossessing the plaintiff. The defendants tried to uproot the mustard crop on 26.2.2006. 3. Suit was contested by the defendants. According to the defendants, they are in possession of the suit land since 15.8.1956 and thereafter they were in continuous possession of the suit land and their possession has ripened into absolute ownership. 4. Replication was filed by the plaintiff. Issues were framed by the learned Civil Judge (Senior Division), Rajgarh on 8.11.2006. He decreed the suit on 11.9.2007. Defendants preferred an appeal before the learned District Judge, Sirmaur District at Nahan. He dismissed the same on 18.1.2008. Hence, the present Regular Second Appeal. It was admitted on the following substantial question of law: 1. In case of long adverse possession of the appellants over the suit land of more than 50 years, whether the 3 right of the respondent to recover possession was extinguished under the provision of Article 65 of the Limitation Act, 1963 and the suit was also barred under section 27 of the Limitation Act also? 5. Mr. I.D. Bali, learned Senior Advocate has strenuously argued that both the courts below have misread and mis-appreciated the oral as well as documentary evidence. According to him, the defendants have proved that they were in possession of the suit land and have become absolute owner of the same. He then argued that the learned courts below have completely mis- read Ex.PW-1/A and PW-1/B. 6. Mr. Romesh Verma has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the record carefully. 8. Plaintiff has appeared as PW-1. According to him, he was owner in possession of khasra No.252 situate in village Lana Cheta. According to him, defendants have tried to forcibly dispossess him by ploughing the suit land on 26.2.2006. He had sown mustard. This act was seen by S/Sh. Gurdyal Singh and Vijay Singh (PW-2). He was never told by the defendants that they were owners in possession of the suit land. He has denied that on 15.8.1956, his father and his family was ousted from the 4 suit land by the father of defendant Inder Singh. He also denied the suggestion that public at large considers defendants to be owners of the suit land. 9. PW-2 Vijay Singh has deposed that plaintiff was owner in possession of the suit land measuring 1½ bighas but he has not stated that defendants have uprooted the mustard from the suit land. His house is situated at a considerable distance from the suit land and it takes 2½ hours to reach the suit land from his village. 10. Defendant Inder Singh has appeared as DW-1. According to him, they were in possession of khasra No. 253 measuring 13 biswas. His father on 15.8.1956 had taken possession of the suit land from the father of the plaintiff. The possession was open and hostile. He was considered by the nearby people to be the owner of the suit land. He has denied the suggestion that he ever tried to plough the suit land. He has admitted that the plaintiff was owner of the suit land, which he came to know during demarcation 7-8 years back. He did not remember the khasra number he got demarcated. He did not remember the year of demarcation. He did not remember when he got the land from Jalam Singh. He did not remember on which date he submitted application Ex.DX. He did not remember his date of birth. He has admitted that in Ex. 5 DX, nothing about the adverse possession has been mentioned. He has admitted that the application was read over and explained to him. 11. DW-2 Gopal Singh has deposed that the defendants were in possession of the suit land for the last 50 years. In his cross-examination, he has deposed that the land was never demarcated in his presence. He had come to depose at the request of the defendants. Whatever he has narrated was told to him by the advocate. 12. DW-3 Dhoodu Ram has testified that the land was 1½ bighas. He considered it to be in possession of defendant Inder Singh. He has not deposed anything about the adverse possession. He has stated in his cross- examination that the demarcation of the suit land never took place in his presence. He has admitted that khasra girdawari takes place every year. 13. The plaintiff has also proved Ex.PW-1/A, copy of jamabandi for the year 2001-2002 and Ex.PW-1/B, copy of khasra girdawari. In Ex.PW-1/A, the plaintiff has been shown in ownership and possession of the suit land comprising khasra No. 252, which is ‘Kuhal Abal’. Similarly, in Ex.PW-1/B, copy of khasra girdawari, the crop of maize, potatoes and ginger was grown in the suit 6 land in the year 2004-2005. Presumption of truth is attached to the jamabandi. Defendants have not led any cogent evidence to establish that they were in possession of the land since 15.8.1956 and perfected their title. According to the defendants, the demarcation has taken place about 7-8 years back prior to deposition made in the court on 24.4.2007. Thus, the defendants came to know about the ownership in the year 2000-2001. The present suit was filed in the month of March, 2006. The defendants have also not produced the Revenue Officer, who has carried the demarcation of the suit land. The defendants have withheld the material witness from the court. It is in these circumstances that the first appellate court has drawn adverse inference against the defendants. 14. The plaintiff has led tangible evidence to establish that he was owner in possession of the suit land on the basis of oral as well as documentary evidence. Even in Ex.DX, defendants have not mentioned about the adverse possession. This application was preferred in the year 2006 after filing of the civil suit. There are material contradictions in the statements of DW-1, DW-2 and DW-3. According to DW-2, no demarcation has been taken in his presence. DW-3 has not stated anything about the adverse possession. DW-1 did not remember 7 his date of birth. The defendants have not challenged the revenue entries made in favour of the plaintiff till the filing of the suit. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the judgments and decrees passed by both the courts below. 15. Accordingly, in view of the observations made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 29.11. 2011 *awasthi*