IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 26 of 2011. Date of decision: 29.6.2011. Amar Singh & ors. ….. Appellants. Vs. Bhim Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Mahesh Gupta, Advocate. For the Respondent : Mr. Janesh Mahajan, Advocate. Kuldip Singh, J. (Oral). The appellants were defendants and they have come in appeal against the judgement, decree dated 10.9.2010 passed by learned Additional District Judge, Mandi, Camp at Karsog, in Civil Appeal No. 11/ 2008, affirming the judgement and decree, dated 3.1.2008, passed by learned Civil Judge (Sr. Division), Karsog, Distt. Mandi, in Civil Suit No. 45 of 2006. 2. The facts in brief are that respondent had filed a suit for possession against the appellants regarding the land more specifically described in the plaint, which was granted as Nautor to the respondent by the government in the year 1980. The mutation to this effect was attested in favour of the respondent on 5.1.1982. It has been alleged that appellants threatened to interfere in the suit land and forcibly occupied the same in December 2004. The respondent Whether the reporters of the local papers may be allowed to see the Judgment?yes …2… had filed a criminal complaint against the appellants, which was dismissed. Thereafter the suit was filed. 3. The suit has been contested by the appellants by filing joint written statement. They have taken preliminary objections of maintainability, lack of cause of action, improper valuation, jurisdiction, estoppel and the suit has not been filed in accordance with High Court Rules and Orders. On merits, the appellants had taken the plea that suit land was granted to respondent by the government behind their back. The appellants are in exclusive possession of the suit land since time immemorial and they are in adverse possession of the suit land. 4. The respondent started demanding the possession of the suit land from the appellants after the land was allotted to him by way of Nautor in the year 1980. The appellants refused to give possession of the suit land to the respondent. The land was demarcated on 19/20.6.1982 and on demarcation, the appellants were found in possession of the suit land. The respondent even admitted the possession of the appellants in the criminal case. The replication was filed and on the pleadings of the parties, the following issues were framed by the learned trial court:- 1. Whether the plaintiff is entitled for the decree of possession of the suit land as prayed? OPP. 2. Whether the defendants have become owner of the suit land by way of adverse possession? OPD. 3. Whether the suit is not maintainable against the defendants? OPD …3… 4. Whether the plaintiff has no cause of action to file the present suit against the defendants? OPD. 5. Whether the plaintiff is estopped to file the present suit by his own act, conduct and deeds? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 7. Relief. The issue No. 1 was answered in affirmative, issues No. 2 to 4 and 6 in negative, issue No. 5 was not pressed and suit was decreed by the learned trial court on 3.1.2008 as per operative part of the judgement. The appellants filed first appeal, which was dismissed by the learned Addl. District Judge on 10.9.2010, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether both the courts below have misread the pleadings and have failed to properly understand the claim made in the suit remitting (sic) in wrong conclusion thereby rendering the impugned judgement and decrees, erroneous and perverse? 2. Whether both the courts below have acted in a highly erroneous, perverse and arbitrary manner in decreeing the claim of possession of the present respondent/ plaintiff whereas the claim of the possession of the present respondent/ plaintiff was not proved beyond reasonable doubts and it will cause irreparable loss and injury to the present appellants/ defendants which cannot be compensated in terms of money as possession over …4… the suit land belongs to the present appellants/ defendants prior to 1982? 3. Whether both the courts below have acted in a highly erroneous, perverse and arbitrary manner in decreeing the suit for possession of the present respondent/ plaintiff by deciding the issue No. 2 against the appellants/ defendants regarding the adverse possession by discarding the evidence adduced by the appellants/ defendants. Both the courts below have not understood the actual controversy between the parties to the suit land and the concept to adverse possession was not properly understood by both the courts below? 5. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that appellants are in adverse possession of the suit land. The courts below have misconstrued, misinterpreted the evidence on record. It has been submitted that appellants are in possession of the suit land prior to the grant of suit land to the respondent in the year 1980/ 1982. At the time of demarcation of the suit land, the appellants were found in possession. It has been submitted that two courts below have wrongly decreed the suit of the respondent. The learned counsel for the respondent has supported the impugned judgement and decree and has submitted that no substantial question of law emerges in the second appeal. The two courts below have rightly appreciated the material on record. The impugned judgement, decree are sustainable. …5… 6. The substantial questions of law No. 1, 2 and 3 are interconnected, therefore, all of them are taken up collectively for determination. The case of the respondent is that suit land was granted to him in the year 1980 by the government as Nautor land. Thereafter, it was wrongly taken into possession by the appellants. The respondent even filed a criminal complaint, which was dismissed. In these circumstances, the suit was filed. On the other hand, the stand of the appellants is that they are in adverse possession of the suit land even prior to the allotment of the suit land by government to respondent by way of Nautor in the year 1980. 7. PW 1 Bhim Singh has stated that Nautor land was allotted to him by the government in the year 1980 and mutation was attested in his favour in the year 1982. On 4.12.2004, he got the land demarcated. The appellants later on uprooted the boundary fixed during the course of demarcation. The appellants on 4.12.2004 had restrained him from entering the land. DW 2 Bhikam Ram is a witness regarding demarcation dated 4.12.2004. Similarly, PW 3 Man Singh is a witness to the demarcation dated 4.12.2004. PW 4 Krishan Chand, Field Kanungo has stated that on the application of Bhim Singh, he was directed to carry out the demarcation. He visited the spot on 4.12.2004 and carried out the demarcation. He has proved report Ex. PW 5/A. In cross-examination, he has stated that he fixed three pucca points at the time of demarcation. 8. DW 1 Amar Singh son of Sahnu Ram has stated that on 19.6.1982 revenue staff came to the spot for demarcation. He is in possession of the land prior to the year 1982. In cross-examination, …6… he has admitted that suit land was allotted to plaintiff in Nautor. DW 2 Bindu Ram has stated that he was present at the time of demarcation carried out on 19.6.1982. The land towards the house of Amar Singh was found in his possession and the other land was found in possession of respondent. In cross-examination, he has stated that he does not know whether Amar Singh is interfering in the Nautor land. DW 3 Amar Singh s/o Lagnu Ram has stated that suit land is in possession of Amar Singh appellant prior to the year 1982. In cross- examination, he has stated that lands of respondent and appellants are separate. This is the entire oral evidence led by the parties. 9. The defence of the appellants is based upon adverse possession. The suit land was allotted to respondent in the year 1980 by way of Nautor. DW 1 Amar Singh s/o Sahnu has stated that he is in possession of the suit land prior to the year 1982. In his statement, he has nowhere pointed out that he is in adverse possession of the suit land and since when. It is admitted fact that suit land was earlier owned by the State and as against the State for adverse possession the prescribed period is thirty years. The appellants have led no evidence that during the ownership of the State the appellants were in adverse possession for the last 30 years. Not only as against the State, the appellants have also not established their hostile animus against the respondent during the statutory period and when it started. The possession how so long will not become adverse possession unless hostile animus and adverse possession is pleaded and proved in accordance with law. DW 1 in his statement has not stated hostile animus or adverse possession …7… and its starting point on the suit land. He has stated only about his possession. In the present case, the ingredients of adverse possession have not been proved in accordance with law. The two courts below have rightly appreciated the material on record. The appellants have not pointed out that impugned judgement is based on some inadmissible evidence or material evidence has been ignored. The re-appreciation of evidence is not permissible in second appeal. The appellants have failed to make out any case for interference. The substantial questions of law No. 1 to 3 are decided against the appellants. 10. In view of above discussion, there is no merit in the appeal, which is accordingly dismissed with no order as to costs. CMP No. 45 of 2011 stands disposed of in view of disposal of appeal. June 29, 2011. ( Kuldip Singh ), (Hem) Judge.