IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.304/1992 Reserved on.7.3.2008 Decided on: 19.3.2008 State of H.P. and another …Appellants. Versus Girja Kumar and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No. For the appellants : Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. G.R. Palsara, Advocate for the respondents. Rajiv Sharma, J. A challenge has been laid by way of this regular second appeal to the judgment and decree passed by the learned Additional District Judge, Mandi dated 28.2.1992 rendered in appeal No.85/90. The brief facts necessary for the adjudication of this second appeal are that the respondents (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit for declaration with consequential relief of injunction. The case of the plaintiffs briefly was that the land comprised in khata Khatauni No. 72min/95, khasra No.73 measuring 2-4-10 bighas situated in Mauja Bhieuli/371 as recorded in the ownership of the State Government, but the same is open, peaceful, continuous, uninterrupted, hostile and notorious possession of the plaintiffs to the knowledge of the true owner i.e. State of H.P. and its agents and servants for the last over 40 years over which they have raised fruit bearing trees and had also 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 constructed 4 houses and as such they had acquired title of the suit land by way of adverse possession. The plaintiffs have assailed the orders passed by the Settlement Officer dated 2.4.1970 ordering the ejectment of the plaintiffs from the suit land. They had also assailed the order dated 12th July, 1983 whereby father of the plaintiffs Sh. Bishambhar Duttt was shown to have been ejected from the suit land. It is the case of the plaintiffs that Sh. Bishambhar Dutt was never ejected from the suit land and to the contrary suit land continued to be in possession of the plaintiffs without any interruption from the time of their fore-fathers. The appellants (hereinafter referred as the defendants for convenience sake) had contested the suit by taking preliminary objections to the effect that the suit was not maintainable in the present form, suit was bad for non-service of notice under section 80 of the Code of Civil Procedure, the Court had no jurisdiction to try the suit, the suit was not properly valued for the purpose of court fee and jurisdiction and plaintiffs had no enforceable cause of action to file the suit. On merits, they had stated that in the year 1970, Bishambhar father of the plaintiffs was found in possession of the suit land as an encroacher and the Settlement Officer passed ejectment order dated 2.4.1970 under section 163 of the H.P. Land Revenue Act and he was physically ejected from the suit land pursuant to ejectment order vide rapat rojnamcha No. 447 dated 12.7.1983. The trial court on the basis of the pleadings of the parties had framed the following issues: 1. Whether the plaintiffs are in possession of the suit land for the last 40 years and have now become owners thereof by adverse possession as alleged? OPP 2. Whether order dated 2.4.1970 by the settlement officer ordering ejectment of the plaintiffs from the suit land and subsequent rapat No.447/ 12.7.1983 about ejectment of Bishambhar Dutt, are illegal, null and void as alleged? OPP 3. Whether suit of the plaintiff is not maintainable? OPD 3 4. Whether suit is bad for non-service of notice under section 80 CPC? OPD 5. Whether this court has no jurisdiction to try the suit? OPD 6. Whether suit is properly valued for the purposes of court fees and jurisdiction? OPD. 7. Whether plaintiffs have no enforceable cause of action as alleged? OPD 8. Relief. The findings recorded by the learned Sub Judge on the aforesaid issues are as under: Issue No.1. Yes. Issue No.2 Yes. Issue No.3 No. Issue No.4. No.. Issue No.5 No. Issue No.6 Yes. Relief Suit decreed as per the operative portion of judgment. Consequently the trial court had decreed the suit of the plaintiffs. The defendants preferred an appeal against the judgment and decree dated 14.6.1990. The learned Addl. District Judge had framed the following points for determination: 1 Whether there is no evidence to hold that the respondents have become owners of the suit land by adverse possession? 2. Final order. The learned Addl. District Judge had recorded the following findings on the aforesaid points: 1 No. 2 Appeal dismissed. 4 The learned Addl. District Judge dismissed the appeal filed by the defendants on 28.2.1992. The defendants approached this Court by way of regular second appeal assailing the judgment of the learned Additional District Judge dated 28.2.1992. The regular second appeal was admitted on the following questions of law on 17.9.1992: 1. Whether the suit was barred in view of the provisions of section 163 (3) of the H.P. Land Revenue Act, 1953? 3. Whether the suit of the plaintiff, in the facts of the case that on 2nd April 1970, an order of ejectment was passed ordering the ejectment of the plaintiff under section 163 of the H.P. Land Revenue Act, 1954, can be said to be within the period limitation?? This Court vide judgment dated 3rd July, 1998 allowed the appeal and set aside the judgments and decrees of both the courts below. The case was remanded back to the trial court. The plaintiffs preferred a civil appeal No. 1348 of 1999 against the judgment and decree dated 3rd July, 1998 before the Hon’ble Supreme Court. The Hon’ble Supreme Court vide judgment dated 8.3.1999 set aside the judgment and decree passed by this Court in the second appeal and directed the matter to be heard and disposed of afresh on the available evidence. The second appeal was again heard by a learned Single Judge of this Court (Justice R.L. Khurana). The learned Single Judge accepted the appeal and set aside the judgments and decrees of the courts below and the suit of the plaintiffs was dismissed as being time barred. The plaintiffs preferred an appeal before the Hon’ble Supreme Court against the judgment and decree dated 4.1.2000. The Hon’ble Supreme Court allowed the appeal on 31st October, 2007 and the judgment and decree dated 4.1.2000 passed by this Court was set aside and the matter was remanded back to this Court 5 to decide the issue relating to adverse possession. It is in this backdrop that this second appeal is to be decided. The learned Additional Advocate General had strenuously argued that the suit filed by the plaintiffs was not within limitation. He then contented that the plaintiffs have failed to establish the plea of adverse possession and the learned courts below have misconstrued and misread the evidence. Mr. G.R. Palsara, Advocate had drawn the attention of the Court to the observations made by the Hon’ble Supreme Court in its judgment dated October 31, 2007 with regard to plea of limitation. He also contended that the order dated 2.4.1970 passed by the settlement officer was never produced on record by the defendants. Mr. Palsara further contended that the plaintiffs have led cogent and convincing evidence to establish the plea of adverse possession on the basis of the oral as well as documentary evidence. I have heard the learned counsel for the parties and perused the record. Since both the questions of law are inter-connected, therefore, the same can be conveniently discussed together. It is admitted case that the trial court has not struck any issue on the point of limitation. The issues as framed by the trial court have been reproduced in entirety in the opening paras of the judgment. The plaintiffs have specifically stated in para 6 of the plaint that the cause of action has arisen to them on 24th October, 1988 when the revenue authorities started threatening them to forcibly dispossess from the suit land. The defendants have filed the following reply to this para: “That the contents of para No.6 of the plaint are admitted to the extent that no cause of action has arisen to the plaintiff against the replying defendants” 6 It was necessary for the defendants to get the issue framed on the question of limitation if they were aggrieved in any manner. The issues No.3,4,6 and 7 were not pressed by the counsel of the parties before the trial court. The plaintiffs in their written-statement have specifically stated that the cause of action had arisen to them on 20.10.1988 and the suit was filed on 27.2.1989. The order passed by the Settlement Officer, the copy of which even was not placed on record by the defendants dated 2.4.1970 had no bearing as far as the limitation is concerned. The Hon’ble Supreme Court in its judgment dated 31st October, 2007 has dealt extensively with issue pertaining to limitation. The Hon’ble Supreme Court has noted the contention of the plaintiffs that the order dated 2.4.1970 passed by the Settlement Officer was not communicated to them. The Hon’ble Supreme Court has also noted the contention of the plaintiffs that they were not issued notice or offered an opportunity to put forth their case before making any entry/passing any order by the Settlement Officer. The Hon’ble Supreme Court had come to a conclusion that onus was on the defendants/department to place the relevant record to show that there was valid order by the competent authority. In view of the observations made hereinabove and as per the judgment of the Hon’ble Supreme Court dated 31st October, 2007 it is held that the suit filed by the plaintiffs was within limitation. Now, the Court has to consider whether the plaintiffs have proved their continuous, uninterrupted and hostile possession over the suit land or not. The settlement proceedings took place in the year 1965-66. Sh Bishambhar, father of the plaintiffs has been shown to be in possession of the suit land during the course of inquiry. Girja Kumar PW-1 had deposed that the suit land is in continuous possession of the plaintiffs from the year 1945. He has stated that they used to cut the grass and raise crops and 7 have also planted orchard and constructed as many as 4 houses on the suit land. The first house, according to him, was constructed in the year 1952 and then in the year 1956 and thereafter in the year 1962-63. He had categorically stated that neither they nor their forefather were ever ejected by any one from the suit land and they continued to be in possession of the same. He has further stated that the copy of the order passed by the Settlement Officer was not supplied to him when he asked for the same. PW-2 Hardev Singh has only proved tatima Ex.P-4 to show that four houses are situated over the suit land. PW-3 M.L. Vaidya has proved the report Ex.P-5 and site plan Ex.P-6 about the 4 houses of the plaintiffs constructed on the suit land. PW-4 Prem Singh, PW-5 Bhup Singh and PW-6 Jai Ram had deposed that the plaintiffs are in continuous and peaceful possession of the suit land since the time of their forefathers and have raised a fruit bearing trees and have constructed 4 houses over the suit land. PW-7 Smt. Kala Sharma, Record Keeper had stated that file No. 1469/SO State versus Kanhaiya was destroyed on 27.7.1988. In the jamabandis for the year 1975-76, 1979-80 and in Missal Haquiat, the father of the plaintiffs has been recorded to be in possession of the suit land as an encroacher. DW-2 Padam Singh Patwari had admitted in his cross-examination that only rapat rojnamcha was recorded in the Patwarkhana and no other proceedings were carried out on the spot for the ejectment of Sh. Bishambhar Dutt. DW-1 Sh. Gowardhan Singh had stated that Bishambhar was ejected from the suit land on the basis of rapat rojnamcha. He had admitted that no warrants of possession were delivered to him for dispossession of Sh. Bishambhar. There is variance in the statement of DW-1 Padam Singh and DW-2 Gowardhan Singh. It is thus evident that the plaintiffs are in continuous, hostile and uninterrupted possession of the suit land to the knowledge of true owner. They have 8 planted fruit bearing trees on the suit land and have constructed 4 houses. They have become owner of the suit land by way of adverse possession. The order dated 2.4.1970 and the subsequent rapat rojnamcha dated 12.7.1983 had already been set aside by the trial court on the basis of the cogent evidence led by the plaintiffs, more particularly, statement of PW-1 Girja Kumar and revenue record. Consequently the regular second appeal fails and the same is rejected. The judgment and decree passed by both the courts are upheld. There shall be no order as to costs. ( Rajiv Sharma), Judge March 19, 2008 *Awasthi*