IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA 215 of 2000. Decided on October 29, 2010. Prem Dass (deceased) through his LRs Smt. Geeta Devi and others …Appellants. Versus Banarsi Dass & others ..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the appellants Sh. Bhupinder Gupta, Sr. Advocate, with Ms. Charu Gupta, Advocate. For the respondents Sh. K.D.Sood, Advocate. Surjit Singh, Judge (Oral) This Regular Second Appeal was admitted on the following substantial questions of law, by order dated 10.5.2000: 1. Whether the Lower Appellate Court is wholly unjustified in dismissing the entire appeal having been abated in toto on account of the death of one of the plaintiff-respondent Shri Om Parkash? Whether such findings are unsustainable on account of ignoring the well established principles Whether reporters of the local papers may be allowed to see the judgment? - 2 - of doctrine of sufficient representation of the estate? 2. Whether the learned District Judge has failed to exercise the jurisdiction vested in it in not condoning the delay in making application for substitution of the legal representatives of the deceased Shri Om Parkash and failed to set aside the abatement, when the said respondent was duly represented and factum of death was not intimated promptly, whether the learned Lower Appellate Court was justified in ignoring the medical evidence adduced by the Appellant regarding the ailment and explaining the case of the delay? Is not order dated 1st June, 1996 passed by the learned District Judge liable to be set aside in dismissing such application on wrong premise of law? 3. Whether the learned District Judge has exceeded its jurisdiction in recording the findings on merits of the case mechanically after holding that the appeal was liable to be dismissed having been abated in its entirety? Is not the impugned Judgment and Decree erroneous and perverse being opposed to law? 4. Whether both the courts below have ignored material evidence particularly Exhibit DW-2/A, the order of the revenue officer during settlement proceedings upholding the possession of the defendant-appellant over the suit property? When the possession of the Defendant-Appellant was duly established and it was also shown that the suit property is in possession of the Defendant- Appellant as courtyard and on the part of it the - 3 - construction of the Defendant–Appellant is existing? Have not both the courts below acted with material illegality and irregularity in rejecting the claim of the Defendant-Appellant of adverse possession by misreading the relevant and material evidence and taking wrong and erroneous view of law? 2. Facts, relevant for the disposal of the appeal, may be noticed. Respondents-plaintiffs and one Om Parkash, now dead, filed a suit for declaration, that they were owners in possession of land, bearing Khasra No. 1927, situated in Gandhi Nagar, Hamirpur and also for issuance of permanent prohibitory injunction, restraining the appellant- defendant Prem Dass, now dead and represented by his LRs, from interfering in their possession. Suit was contested by Prem Dass, deceased appellant-defendant. He took the plea that he had purchased the adjoining site, bearing Khasra No. 1926 (old No. 441/426), in the year 1956 or 1957 and that when in the year 1962, structure standing on the land purchased by him collapsed, he raised a new structure thereon. He stated that he had been using the suit land as courtyard for his building, standing on Khasra No. 441/426, new No. 1926, and that in the year 1962, he utilized a portion of the suit land, bearing Khasra No. 1927 in the construction of his building and stairs, for accessing the upper storeys of the building. He pleaded that his - 4 - possession was open, hostile, continuous and thus, he had prescribed for title. 3. Learned trial Court decreed the suit, holding that the plaintiffs were owners in possession and that the appellant-defendant had not been successful in proving his plea of adverse possession. Appeal was carried to the Court of District Judge, against the decree of the trial Court, by the appellant-defendant. 4. During the pendency of the appeal before the District Judge, one of the respondents-plaintiffs, namely Om Parkash died, sometime in the month of August, 1992. In April, 1993, an application was moved under Order 22 Rules 4 and 9 CPC, for setting aside abatement and for bringing on record the LRs of said Om Parkash. Another application under Section 5 of the Limitation Act, was moved for condonation of delay, in seeking setting aside of abatement. Learned District Judge, vide order dated 1.6.1996, dismissed the two applications and held that appeal, as against deceased Om Parkash, respondent-plaintiff, stood abated. It was observed that question, whether on account of death of Om Parkash and non representation of his estate by his LRs, appeal stood abated in its entirety, was to be considered at the time of hearing of the appeal. 5. Appeal was finally heard and disposed of vide judgment, dated 1.2.2000. Learned District Judge held that - 5 - there was no merit in the appeal, as the plea of adverse possession, was not proved. At the same time, it was held that on account of death of Om Parkash, the appeal, in its entirety, stood abated. 6. I have heard the learned counsel for the parties and gone through the record. 7. Learned counsel, representing the respondents- plaintiffs, fairly concedes that on account of liberalization of law, relating to condonation of delay, applications, moved by the appellant for representation of estate of deceased Om Parkash and condonation of delay, in seeking setting aside of abatement on account of his death, should not have been dismissed by the learned first appellate Court. Hence, said applications are allowed and LRs of Om Parkash, who have already been named as respondents in this appeal, are brought on record, of the present appeal, as also the appeal filed before the District Judge, i.e. Civil Appeal No. 122 of 1991. With the passing of this order, questions 1, 2 and 3, are rendered redundant. 8. Coming to question No. 4, I have been taken through the entire evidence on record. Admittedly, respondents-plaintiffs are recorded as owners of the suit land in the revenue record, including the record, prepared in the year 1984, on the conclusion of settlement. Copy of missal hakiyat, prepared on the conclusion of settlement, is Ex. D- - 6 - 1. Possession is, however, recorded in the said missal hakiyat, with the appellant. Appellant came to be recorded in possession of the suit land, for the first time, only in this missal hakiyat, copy Ex.D-1. Prior to that, it were the respondents-plaintiffs, who were being recorded as owners in possession. 9. Suit land is lying in the form of a vacant site on the spot, as per entry in Ex.D-1 and also the oral evidence, adduced by the parties, including the defendant. According to appellant-defendant, he had been keeping drums of oil etc. on the suit site, as he manufactures soap. Just by keeping one’s movable articles on a site, adjacent to one’s premises, one does not become owner of that site, nor is the true owner required to take notice of this kind of action, because articles are not kept there, for all times to come. This kind of practice is comparable to permissive use of adjoining property of a neighbour. 10. It has come in the testimony of deceased Prem Dass, who appeared as DW-1 himself, that the site was being used for performing Ram Lila, till 5-6 years before his making the statement in Court. He made statement on 25.5.1990. There is no documentary evidence, in support of appellant’s plea, that he has raised stairs, on a portion of the suit land. Had it been a fact, appellant would have definitely asked for demarcation of the land and such a demarcation - 7 - would have indicated existence of stairs. Prem Dass himself appeared as DW-1. Though, he testified that he had been using this land for more than 12 years and had acquired title by adverse possession, at the same time, he stated in examination-in-chief itself, that he came to know that the suit land belonged to the respondents-plaintiffs, only when settlement had taken place. Settlement took place in the year 1984, as noticed earlier. Now, if he came to know that the suit land belonged to some other person only in the year 1984, he cannot be said to have acquired title by adverse possession, because prior to settlement, he had been under the impression that he himself was the title holder, per his deposition. 11. For the fore-going reasons, I see no justification for interfering with the concurrent findings of the two Courts below, that the defendant has not acquired title by prescription. In view of the above stated position, question No. 4 is answered against the appellant and appeal is dismissed. October 29, 2010 (PC). (Surjit Singh) Judge.