IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 254 of 2001 with Cross-Objections No.333 of 2001. Reserved on: 04.05.2011. Decided on: 27.05.2011. ______________________________________________ Tilak Raj and others. … Appellants/Non-Objectors. Versus Shyam Lal. … Respondent/Objector. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants/ : Mr. Harish Behal, Advocate. Non-Objectors. For the Respondent/ : Mr. Bhupender Gupta, Senior Cross-Objector. Advocate with Ms. Charu Gupta, Advocate. Rajiv Sharma, Judge. RSA No.254 of 2001. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Mandi in Civil Appeal No.27 of 1997, dated 6th January, 2001. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - 2. Material facts necessary for adjudication of this regular second appeal are that the appellants/plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) instituted a suit in the Court of learned Sub Judge 1st Class, Mandi for injunction. The case set up by the plaintiffs is that they as well as co-sharers are owners in possession of the suit land measuring 2-17-17 bighas bearing Khasra Nos. 715/331 and 442/659/334 situate in village Sanyardhi/363, Illaqua Kehanwal, Pachhit, Tehsil Sadar, District Mandi as per jamabandi for the year 1987-88. According to the plaintiffs, the respondent/defendant (hereinafter referred to as “the defendant” for convenience sake) has started digging the suit land on 18th May, 1992 with a motive to grab the same and has already broken and levelled a part of the suit land comprised in Khasra No.715/331/1 as shown in Aks Tatima Shajra Kishatwar, dated 29th May, 1992 (Ex.P-B). The defendant was requested to resist from doing the digging work and on his refusal to do so, the suit was filed on 29th May, 1992 for grant of permanent prohibitory injunction restraining the defendant from changing the nature of the suit land by digging or by raising structure thereon. 3. Defendant resisted the suit by filing written statement. On facts, it has been averred that he was in continuous, hostile, peaceful and uninterrupted possession of the suit land to the knowledge of the plaintiffs and other co-sharers for the last more than 20 years. According to him, he has acquired title over the - 3 - same since 13th January, 1972. Defendant also averred that he has planted orchard in the suit land and has also constructed stairs leading to his residential house and now he is exclusive owner in possession of the suit land. 4. The replication was filed by the plaintiffs. They have controverted the averments contained in the written statement. The trial Court framed the issues on 2nd June, 1993. Trial Court dismissed the suit on 1st February, 1997. Plaintiffs preferred an appeal bearing No.27 of 1997 against the judgment and decree of learned Sub Judge, dated 1st February, 1997. The defendant also filed an appeal bearing Civil Appeal No.16 of 1997 against the judgment and decree dated 1st February, 1997 passed by the learned Sub Judge 1st Class, Court No.1 Mandi. The learned appellate Court below dismissed both the appeals on 6th January, 2001. This regular appeal has been filed by the plaintiffs against the judgment and decree dated 6th January, 2001 rendered in Civil Appeal No.27 of 1997. The defendant has also filed cross- objections bearing No.333 of 2001 against the judgment dated 6th January, 2001. 5. The appeal was admitted by this Court on 20.7.2001 on the following substantial questions of law:- 1. Whether the replication is a part of pleadings in view of Order 8 Rule 9 CPC or the provisions of Order 6 Rule 1 will over- - 4 - ride the provisions contained in Order 8 Rule 9 CPC? 2. Whether in a suit for permanent prohibitory injunction the relief of possession can be granted in view of the provisions contained in Order 7 Rule 7 CPC particularly when a specific prayer in this behalf was made in the replication? 3. Whether the ld. Courts below have misconstrued, misread and misinterpreted the evidence on record and thereby arrived at wrong conclusion on law and facts? 6. Mr. Harish Behal, learned counsel for the plaintiffs has strenuously argued that the findings recorded by both the Courts below are contrary to record. According to him, his clients were entitled to the decree for possession on the basis of alternative prayer made in the replication. He has relied upon Order 7 Rule 7 of the Code of Civil Procedure. He has also argued that the replication has to be treated as integral part of the pleadings. 7. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that the plaintiffs have failed to prove their possession over the suit land. He has supported the findings recorded by the learned Courts below to this effect. He has further argued that the learned Courts below have erred so far as the findings recorded with regard to the plea of adverse possession put - 5 - up by the defendant is concerned. According to him, his client is in possession since 1972 which is overt, hostile and continuous. 8. I have heard learned counsel for the parties at length and have gone through the record carefully. 9. Since all the substantial questions of law are inter- connected, they are being taken up together for determination to avoid repetition of discussion of evidence. 10. Plaintiff, Shyam Lal has appeared as PW-1. According to him, the suit land was in possession of the plaintiffs. According to him, defendant, Shyam Lal, in the month of May, 1992 dug a portion of the suit land to make it level. He further stated that the defendant never remained in possession of the suit land. He has placed on record the copy of jamabandi for the year 1987-88, Ex.P- A. In cross-examination he has admitted that there is a road and on the upper side of the road, house, stair case and orchard of the defendant are situate. He had further deposed that he has seen the orchard of defendant which was having various fruit growing plants. Thereafter he deposed that these belong to them. According to him, he planted 5-7 plants and the other co-sharers planted the other plants. He has further stated that the stair case leads to the house of defendant. According to him, the stair case was constructed by them for going to their orchard. PW-2, Amar Nath, Patwari has proved tatima Ex.P-B. In his cross-examination, he has stated that Khasra No.715/331 was situate on the upper - 6 - side of the road and its total area is 0-14-11 bighas. He has also prepared another tatima Ex.D-A at the instance of defendant. According to the contents of Ex.D-A, he has indicated that various fruit bearing trees were also standing on the land bearing Khasra No.715/331/2. However, in Aks Tatima (Ex.P-B) he has not mentioned about the existence of stairs and orchard. 11. Defendant has appeared as DW-1. He has deposed that the land in dispute is 0-14-11 bighas which is situate below his house and above the road. He has planted orchard on the suit land and constructed the stair case. The stair case was constructed in January, 1972. The land of the plaintiffs is situate below the road. According to him, he is in possession of the suit land continuously since 1972. He is owner of the suit land. DW-2, Gokal Chand has deposed that he has seen the house and orchard of the defendant for the last 15-20-25 years. He has also seen the stair case of the defendant which is situate on the suit land. The house of the defendant is situate on the upper side of the road. DW-3, Smt. Giari has deposed that the stair case and orchard of the defendant are situate on the suit land. She has seen the possession of defendant for the last 25 years. House of the defendant is situate on the upper side of the road. DW-4, Sohan Singh has deposed that the defendant has constructed the stair case and has also planted the plants 20-22 years back. DW-5, Manglu Ram has stated that he has seen the house, stair case and - 7 - orchard of the defendant. He is seeing the possession of the defendant for the last 22-23 years. He constructed the stair case in the year 1972. DW-6, D.C. Sharma, Horticulture Expert has given the inspection note Ex.PW-6/A. According to him, he visited Khasra Nos.715/331/3 and 715/331/4 on which 22 plants were planted. DW-7, Tek Chand has deposed that he has planted the plants in the orchard of the defendant in the year 1977. 12. What emerges from the evidence discussed hereinabove is that the house of the defendant is situate on the upper side of the road and the stair case leads to his house and orchard. DWs-2 to 7 have seen the possession of the defendant on the suit land. The orchard has been raised by the defendant. The statement of PW-2 also supports the plea of the defendant that he is in possession of the suit land. According to PW-2, the suit land is situate on the upper side of the road. In Ex.D-A it is also depicted that the orchard is having 22 fruit growing plants and there was also stair case. In view of this, the plaintiffs have failed to prove their possession over the suit land comprising Khasra No.715/331. 13. The suit had been filed by the plaintiffs against the defendant restraining him from interfering in the suit land. The plaintiffs have not made alternative prayer in the main plaint for possession. The plaintiffs knew at the time when the suit was filed that the defendant was in possession of the suit land, which is also - 8 - evident from Ex.P-B, dated 29th March, 1992. It was not the case of the plaintiffs that the defendant had taken forcible possession of the suit land during the pendency of the suit. In fact, the following prayer has been made by the plaintiffs in the replication: “That the plaintiffs further pray that in case it is found that they have been dispossessed in that case the possession of the suit land may kindly be awarded in favour of the plaintiffs and justice be done.” However, no suggestion has been given by the plaintiffs either to the defendant or to the witnesses examined by him that the plaintiffs were dispossessed from portion of the suit land during the pendency of the suit. 14. According to Shyam Lal (PW-1), the defendant never occupied the suit land. Since the plaintiffs have failed to prove the possession over the suit land, the Courts below could not modify the relief even as per Order 7 Rule 7 of the Code of Civil Procedure. Consequently, the findings recorded by both the Courts below to the effect that the plaintiffs have failed to prove their possession over the suit land bearing Khasra No.715/331 are affirmed. 15. Accordingly, in view of the observations made hereinabove and as per facts and circumstances of the present case, the case law cited by Mr. Harish Behal, learned counsel for the appellants contained in Kedar Lal Seal and another v. Hari - 9 - Lal Seal, AIR 1952 SC 47, Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735, Managobinda and others v. Brajabandhu Misra, AIR 1986 Orissa 281 and Smt. Neelawwa v. Smt. Shivawwa, AIR 1989 Karnataka 45, is not applicable to this case. Cross-Objections No.333 of 2001. 16. Now the Court will advert to the cross-objections filed by the defendant bearing No.333 of 2001. 17. Both the Courts below have returned the concurrent findings that the defendant has failed to prove his title over the suit land by way of adverse possession. 18. In order to prove the adverse possession, it was necessary for the defendant to prove necessary animus. He was required to prove continuous, open and hostile possession over the suit land, that too, to the knowledge as well as exclusion of the real owner. In the instant case, defendant while appearing as DW-1 has claimed possession of the suit land from 1970. According to DW-2, Gokal Chand, he has seen the house and orchard of the defendant for the last 15-20-25 years. DW-3, Smt. Giari has deposed that the defendant was in possession of the suit land for the last 25 years. According to DW-4, Sohan Singh, the possession of the defendant over the suit land was for the last 20- 22 years. DW-6, D.C. Sharma, Horticulture Expert has given the age of the plants standing on the suit land as per growth to be 14- 15 years in July, 1992. All these witnesses have given different - 10 - statements with respect to possession of the defendant over the suit land. None of the witness has given the commencement period of adverse possession when the defendant came in possession of the suit land. Consequently, the defendant has failed to prove the ingredients of adverse possession. 19. In view of the observations and discussion made hereinabove, there is no merit in the regular second appeal as well as the cross-objections filed by the respective parties and the same are dismissed. No costs. (Rajiv Sharma), Judge. May 27, 2011. (sck).