IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 100 of 2000 alongwith CMP No. 153 of 2000. Judgment reserved on: 15.3.2010. Date of decision: 22.3.2010. Shankar Dass ….. Appellant. Vs. Mathru alias Mathru Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajesh Mandhotra, Advocate. For the Respondent : Mr. Anand Sharma, Advocate. Kuldip Singh, Judge. The defendant has filed second appeal against the judgement, decree, dated 15.12.1999 passed by learned District Judge, Mandi in Civil Appeal No. 49 of 1996. 2. The respondent was plaintiff and he had filed a suit for declaration and confirmation of possession on the grounds that he had applied for grant of Nautor land comprised in khasra No. 306/9, 306/10 measuring 6-5-17 bighas, Mohal Dhanyari/45, Illaqua Tungal, Tehsil Sadar, District Mandi and the land was granted to him by Sub Divisional Officer ( C), Sadar Mandi on 10.7.1975. The land was damaged by Public Works Department, he applied for exchange of Whether the reporters of the local papers may be allowed to see the Judgment? …2… this land on 8.2.1977 with khasra No. 768/ 306/1 measuring 6-5-17 bighas in same Mohal by reviewing the order dated 10.7.1975. The review order was passed by Sub Divisional Officer(C), Sadar Mandi on 19.1.1978 and the land bearing khasra No. 768/306/1 measuring 6-7-17 bighas in the same Mohal was granted to respondent in Nautor. The patta was issued on 23.2.1978. The appellant in collusion with revenue staff got recorded his name as owner in possession of the suit land to the extent of half share and this entry is wrong and illegal. The suit land is in possession of respondent. 3. The suit was contested by the appellant by filing written statement in which objections of maintainability, limitation, non-joinder and mis-joinder of necessary parties, jurisdiction of civil court to try the suit and respondent has no enforceable cause of action, were taken. On merits, it was pleaded that land comprised in khasra No. 768/306/1 measuring 6-12-17 bighas is in exclusive and peaceful possession of appellant for the last 30 years. The respondent had applied for grant of Nautor land comprised in khasra Nos. 306/9 and 306/10 measuring 6-5-10 bighas, which was allotted to respondent by Sub Divisional Officer ( Civil) on 10.7.1975, but the said land was damaged by Public Works Department. The appellant had also applied for grant of Nautor land, the ownership of the land to the extent of ½ share was granted to appellant but patta was wrongly issued in favour of the respondent. The appellant is owner in possession of the suit land to the extent of ½ share and remaining ½ share of the suit land is claimed by appellant by way of adverse possession as he is in exclusive, peaceful, continuous , uninterrupted, …3… hostile possession on half share of the suit land to the knowledge of respondent for the last 30 years. 4. The suit was decreed on 10.5.1996 by the learned Sub Judge and the respondent was held to be owner in possession of land comprised in khasra No. 768/306/1 measuring 6-5-17 bighas. In appeal, the learned District Judge on 15.12.1999 has affirmed the decree dated 10.5.1996. The decree dated 15.12.1999 has been assailed in the second appeal, which has been admitted on following substantial questions of law:- 1. Whether the Courts below erred in holding the suit of the respondent/ plaintiff within limitation? 2. Whether the Court below have misread and misinterpreted Exts. PE and PF besides other documents to hold that the appellant/ defendant has no right, title and interest in the land in dispute. 5. In the appeal, CMP No. 153 of 2000 has been filed under Order 41 Rule 27 CPC for placing on record copy of sale deed dated 15.12.1998 vide which appellant had sold land comprised in khasra Nos. 776/306, 777/306 to Ghanshyam. This application has been opposed by the learned counsel for the respondent. 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that two courts below have misconstrued, misinterpreted the evidence on record. The appellant is owner in possession of half share of the suit land and appellant is owner by way of adverse possession of the remaining half share of the suit land. Ex. PE and Ex. PF have been misconstrued, the sale deed …4… dated 15.10.1998 may be permitted to be taken on record by way of additional evidence. The sale deed dated 15.10.1998 demolishes the case of the respondent. The learned counsel for the respondent has supported the impugned judgement, decree and has submitted that two courts below have recorded a concurrent finding of fact in favour the respondent, there is no merit in the appeal and same may be dismissed. 7. In the application for additional evidence, it is the case of the appellant that plea of respondent that earlier land granted to respondent was exchanged with the suit land is false inasmuch as the earlier land granted to the appellant was also in possession of respondent, which was sold by him by way of sale deed dated 15.10.1998. It has been submitted that appellant came to know about the sale deed dated 15.10.1998 after the decision of the appeal by the lower appellate court and, therefore, appellant has prayed for taking on record the sale deed dated 15.10.1998. 8. The main controversy involved in the appeal is whether respondent is owner in possession of the suit land comprised in khasra No. 768/306/1 measuring 6-5-17 bighas, how he got title over suit land is secondary. The sale deed dated 15.10.1998 is with respect to khasra Nos. 776/306, 777/306 measuring 6-5-17. The earlier land allotted to the respondent comprised in khasra Nos. 306/9, 306/10 measuring 6-5-17 bighas. There is no averment in the application that earlier khasra numbers of khasra Nos. 776/306, 777/306 were khasra Nos. 306/9 and 306/10. In addition, in the application only prayer has been made for placing on record the sale …5… deed dated 15.10.1998. In the body of the application, however, averment has been made that said document may be ordered to be read as part and parcel of the appeal and evidence adduced by the parties. The application under Order 41 Rule 27 CPC cannot be considered as an application for leading additional evidence. The sale deed dated 15.10.1998 even if allowed to be taken on record cannot be read in evidence unless it is proved on record. There is no prayer in the application to prove the sale deed dated 15.10.1998. The application is defective, not maintainable and is accordingly dismissed. 9. Ext. PE order dated 19.1.1978 of Sub Divisional Officer (C), Mandi provides that land measuring 6-5-17 bighas comprised in khasra Nos. 306/9 and 306/10 was granted to Mathru vide order dated 10.7.1975 of Sub Divisional Officer ( C). The applicant had requested that land granted to him was damaged by Public Works Department and he had requested for grant of land comprised in khasra No. 768/306/1 measuring 6-5-17 bighas in the same Mohal. The Sub Divisional Officer ultimately allotted land comprised in khasra No. 768/306/1 measuring 6-5-17 bighas to the respondent. Ext. PF is mutation No. 95 vide which land comprised in khasra No. 768/306/1 measuring 6-5-17 bighas was mutated in favour of the respondent. There is nothing on record that Ext. PE vide which land in dispute was allotted to respondent was set-aside. In presence of Ext. PE allotting the land in dispute to respondent and Ex. PF mutation, it cannot be said that respondent is not owner in possession of the suit land. …6… 10. The respondent has filed the suit on the basis of title. The issue No. 6 was of adverse possession. The trial court has recorded a finding that land was granted to respondent in Nautor and he remained in possession thereof since the date possession was delivered to him, as such, issue No. 6 was decided against the appellant. The leaned District Judge has affirmed the finding in the impugned judgement. The appellant has miserably failed to prove his adverse possession on the suit land, therefore, suit is within limitation. The appellant has failed to establish that two courts below have mis- construed and mis-interpreted Ex. PE and Ex. PF. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are answered in favour of the respondent. 11. No other point was urged. 12. The result of above discussion, the appeal fails and is accordingly dismissed. All interim orders stand vacated. March 22, 2010. ( Kuldip Singh ) (Hem) Judge.