IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.81 of 1998. Date of Decision: July 01 , 2008 ____________________________________________________________ Chaman Singh Appellant. Versus State of H.P. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes For the appellant : Mr. Ramakant Sharma, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer. _________________________________________________________ Surinder Singh, J This second appeal is directed by the plaintiff-appellant against the judgment and decree passed by the learned District Judge, in Civil Appeal No. 91-NL/13 of 1996 decided on 15.9.1997 whereby he had affirmed the judgment and decree passed by the learned Sub Judge Nalagarh, District Solan dismissing the suit for declaration and injunction. The appeal was admitted on the following substantial questions of law:- 1. Whether the impugned judgment and decree is the result of complete misreading, mis- interpretation as well as misapprecaition of statements of PW1, PW2 and DW1 as well as documents Exhibit P1, D1 and D2? 2. Whether the impugned judgment and decree is the result of non-consideration of law laid down by Whether reporters of the Local papers are allowed to see the judgment? Yes. the Hon’ble High Court in case reported in Dalip Singh –v- State of H.P., 1992 (1) Sim.L.C. 320. As a matter of fact, the land comprised in khasra number 2621/1656, 2622/1656 and 2671/2234 kita-3, measuring 6 bighas 7 biswas situated in village Bhatian, Pargana Plassi, Tehsil Nalagarh, hereinafter to be referred as ‘suit land’, is owned by the State of Himachal Pradesh, to be referred as the ‘defendant’ hereinafter. The appellant who was a ‘plaintiff’ called in question his eviction, from the suit land pursuant to the orders of ejectment passed by the Assistant Collector, Nalagarh in the proceedings under Section 163 of the H.P. Land Revenue Act on the grounds that his father Shri Gian Chand had occupied the suit land on 13.4.1947, since then he remained in its peaceful and continuous possession, to the knowledge of the defendant-State without any interruption. Thus, he has perfected his title by way of adverse possession and the assumption of jurisdiction by the Assistant Collector under Section 163 of the H.P. Land Revenue Act was without jurisdiction, thus the eviction order was bad in law. The suit was resisted and contested by the defendant-State on the ground that the plaintiff had encroached upon the suit land in the month of April, 1991 consequently proceedings under Section 163 of the H.P. Land Revenue Act were initiated and finally, the order of ejectment was passed by the Assistant Collector on 3.12.1991 in accordance with law and the civil Court has no jurisdiction in view of Section 171 of the said Act. The State also took up the objection of maintainability of the suit, no cause of action and also questioned the locus standi of the plaintiff to file the suit. On the pleadings of the parties, the trial Court framed the following issues :- 1. Whether the plaintiff is owner in possession of the suit land? OPP. 2. Whether the suit land is not vested in the State of H.P. under the H.P. Village Common Lands (Vesting and Utilization) Act? OPP 3. Whether the ejectment order passed by the A.C. IInd grade are illegal? OPP. 4. Whether the suit is not maintainable? OPD. 5. Whether this court has no jurisdiction? OPD. 6. Relief After hearing the parties and upon going through the evidence on record, trial Court held that the suit land had vested in the State of Himachal Pradesh under the provisions of H.P. Village Common Lands (Vesting and Utilization) Act and the plaintiff is not the owner in possession thereof, as such the ejectment order passed by the Assistant Collector was perfectly legal, hence the suit was not maintainable and the Court has no jurisdiction to entertain and determine the suit. Feeling aggrieved and dis-satisfied by the impugned judgment and decree, the plaintiff filed an appeal before the learned District Judge who re-appraised the evidence on record in the light of the arguments advanced but he did not find any favour with the contentions raised by the plaintiff, as such dismissed the appeal inter-alia on the ground that the plaintiff was an encroacher over the suit land and did not take any plea of adverse possession, as such Section 171 of the H.P. Land Revenue Act bars the jurisdiction of the Civil Court for the matters which fell exclusively within the domain of the revenue Court, consequently the appeal was dismissed. Having failed in both the courts below, the appellant filed this regular second appeal inter-alia on the grounds that the view taken by the Courts below is incorrect in the light of Dalip Singh’s case 1992 (1) Sim.L.C. 320 of this Court and further that the statements of the witnesses and the documents placed on record were not properly appreciated. Shri Ramakant Sharma, learned counsel for the appellant has vehemently argued that the plaintiff was able to prove the possession o over the suit land f his father from the year 1947. The adverse possession stands fully proved from the evidence on record, therefore eviction order passed by the Revenue Court against him under Section 163 of the Act was without jurisdiction and the courts below did not appreciate the law and evidence in its right perspective, which has caused the miscarriage of justice. Contra, Shri J.S. Guleria, Law Officer, while supporting the judgments of the courts below has submitted that evidence on record does not prove the adverse possession. The appellant was an encroacher. He was ordered to be evicted in accordance with law and the case cited above has different facts which do not apply to the case. Therefore, the appeal merits dismissal. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. In my considered opinion, there is no case worth interference made out by the plaintiff in appeal. Substantial questions of law No. 1 & 2. Both the above questions are inter-connected, therefore taken up together for its decision. It is a settled law that where a person is in settled possession of the property, even on the assumption that he had the right to remain in possession of the property, he cannot be dis- possessed by the owner of the property except by recourse to law. In the instant case, the defendant-State had taken the recourse to law. The plaintiff was given proper opportunity to defend in the proceedings under Section 163 of the H.P. Land Revenue Act. The ejectment order was passed against him on 3.12.1991 and he did not file any appeal against it but filed the suit on 9.12.1996 claiming adverse possession over the suit land which earlier was shamlat land and later vested in the State of Himachal Pradesh. There is no entry of the plaintiff in the revenue papers with effect from 1947 till date showing him or his father in cultivating possession of the land aforesaid. Dalip Singh’s case supra is not applicable to the facts and circumstances of the case in hand. The adverse possession is essentially a hostile possession, i.e., in denial of the title of the true owner. The person claiming adverse possession must have animus to claim such a possession not only in its hostility but also to the knowledge of the true owner. Thus, adverse possession can be claimed against a true owner who, as such, was entitled to possession of the property which is the subject matter of the suit. In other words, it should be Nec vi Nec claim Nec precario, to which the plaintiff failed to prove by adducing the cogent evidence on record. To prove the adverse possession, the plaintiff examined himself as PW1 and produced PW2 Banta Singh. According to them, the father of the plaintiff had occupied the suit land on 13.4.1947 and after his death, the plaintiff came in its possession to the knowledge of the defendant. He did not say as to when his father died and when the plaintiff came in possession of the suit land. The ‘doctrine of Tacking’ does not apply to the possession illegally acquired. On the other hand, Jamabandies for the year 1955-56 Ext. D1, 1963-64 Exhibit D2 and 1989-90 Exhibit D4 reflects the State as the owner and in the column of possession, the entry is shown in favour of “Makboza Bashindgan Deh”. The entries of the suit land before its vesting in the State Government were the same as it was after its vestment but for the fact that the land was kept in the allotable pool. The plaintiff could not rebut the presumption of truth attached to the jamabandis and there are concurrent findings of facts by the Courts below which cannot be interfered in the second appeal. Therefore, for the reasons aforesaid, I do not find that the learned trial Court has mis-appreciated the law and misconstrued the evidence led by the parties before the trial Court. Accordingly no interference is either warranted or called for. For the reasons aforesaid, the appeal is dismissal without costs throughout. (Surinder Singh) Judge. July 1, 2008. (bm)