IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 184 of 1998 Date of Decision : July 3, 2008. Jai Chand …Appellant Versus: Bhagwan Singh and another …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Ajay Kumar, Advocate. For respondent No. 1 : Mr. R. S. Jamalta, Advocate. Sanjay Karol, J. (Oral) Appellant herein is defendant No.1 in the suit filed by the plaintiff-respondent No.1 herein. Respondent No.2 herein was proforma defendant No.2 before the trial Court. 2. For the purpose of convenience, the appellant herein is referred to as ‘defendant No.1’ and the respondent No.1 herein is referred to as ‘the plaintiff’. 3. Plaintiff filed a suit with respect to the suit land comprising of Khata Khatauni No. 50 min/ 201 min Kh. No. 2621/611 min old and recent Kh. No. 1031 and 1039 and 1051 Kitas 3 measuring 2-74-67 hect. (hereinafter referred to as ‘the suit land’) claiming ownership. The plaintiff 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 also claimed possession of the suit land as defendant No.1 had encroached upon the part of the said land. On notice, defendant No.1 filed the written statement claiming ownership, by way of succession, his father having purchased the land from his ancestors and in the alternative ownership by way of adverse possession. 4. Based on the pleadings of the parties, the trial Court framed the following issues :- “1. Whether the plaintiff is owner of the suit land as alleged? OPP 2. Whether the suit is hit by the judgment of Hon’ble High Court as alleged? OPD 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the suit is bad for want of proper court fee and jurisdiction? OPD 6. Whether the defendant has become owner of the suit land by way of adverse possession? OPD 7. Relief.” 5. The plaintiff’s witnesses proved on record the ownership through documentary and oral evidence. The defendant’s plea that his ancestors had purchased the suit land and/or that he had perfected title by way of adverse possession was negatived by the Trial Court and the plaintiff’s suit for possession was decreed. 6. Civil Suit No. 35/1 of 1992 was decreed by Sub Judge Ist Class (II) Rohru, Distt. Shimla on 28.2.1995 which was 3 assailed by defendant No.1 before the District Judge, Shimla. However, the said Civil appeal being No.43-S/13 of 1995 was dismissed by the first Appellate Court in terms of its judgment dated 2.3.1998. 7. Thus, defendant No.1 has filed the present appeal, which stands admitted on the following substantial questions of law :- “1. What is the effect of the finding of the ld. Distt Judge, Shimla and the trial Court. If there is apparent and glaring discrepancy in the pleadings and evidence adduced by the defendants? 2. Whether the findings of ld. Distt Judge, Shimla and trial Court are sustainable in the face of the evidence and legal position as applicable to the facts of the case and whether there has been a complete misreading and mis-interpretation of evidence by the ld. Distt Judge, Shimla and document Ex.DW1/A? 3. What is the legal effect of the judgment of the ld. Distt Judge, Shimla, if it is found that he has failed to formulate proper points for determination? 4. When the learned Distt Judge, Shimla has completely discarded and ignored the relevant and material evidence and has based is due on totally immaterial and irrelevant and has also grossly mis- read the evidence leading to palpably erroneous findings and if so to what effect? 8. I have heard learned counsel for the parties and also perused the record. 4 9. The present appeal arises out of the concurrent finding of facts recorded by the Courts below. The scope of interference in the present appeal against the finding of facts is limited. 10. The plaintiff has stepped into the witness box and examined himself as PW-1 and has also examined Shri Chet Ram, Retd. Kanungo as PW-2. In rebuttal defendant No.1 has examined himself as DW-1 and has further examined S/Shri Bhagwan Dass (DW-2), Charan Dass (DW-3) & Mehar Chand (DW-4). In support of this case, the plaintiff has proved the receipt Ext.PX, whereby Rs.100/- was paid as ‘Najrana’ to the erstwhile owner for having been inducted as occupancy tenant with respect to the suit premises. Entries in the jamabandi (revenue record) pertaining to the year 1965-66 (Ext.PD) clearly show the plaintiff and his brother defendant No.2 to be occupancy tenants under the erstwhile owner. The said position is also evident from the jamabandi pertaining to the year 1970- 71 (Ext.PC). By virtue of the provisions of the H.P. Tenancy and Land Reforms Act, the ownership of the suit land was conferred upon the tenants, namely, plaintiff and defendant No.2 and the mutation dated 15.7.1975 (Ext.PE) in terms of order dated 20.4.1965 has been duly proved by the plaintiff. The plaintiff has further proved that the suit land bearing khasra number was re- numbered and new khasra Nos. 1031, 1039 and 1053 were carved out from the old khasra Nos. 2621/611, which stands substituted by 611/3. 5 11. The occupancy rights of the contesting party with respect to the suit land have been negatived by the Courts below by concurrent finding of facts. In fact the first Appellate Court has held that defendant No. 1 has admitted that the land with respect to which the tenancy rights were granted by the erstwhile owner formed part of the Khasra No. 611/1. Thus, the courts below have rightly held that the land in question does not form part of the suit property. There is nothing on record to show that the same is not true. Learned counsel has not been able to show anything to the contrary. Documents Ext.PW-1/A does not even pertain to the suit land but pertains to Khasra No. 1053. Therefore, it would have no bearing on the merits of the present case. 12. On the plea of adverse possession the Courts below, referring to and relying upon the evidence led by the defendants have come to the conclusion that defendant No.1 had encroached upon the part of the suit land just about 3-4 years prior to the filing of the suit, which fact was discovered by the plaintiff when he returned back home. The plaintiff immediately took remedial measures and inspite of the fact that defendant No.1 had planted trees (apple orchard) on the said encroached land, the Courts below rejected the defendant’s contention that his possession was adverse and hostile to that of its rightful owner. 13. The pleadings and proof/evidence with respect to the plea of adverse possession is missing in the present case. 6 14. It is settled law that a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead, prove and establish all facts necessary to establish his adverse possession. (Mohan Lal and others v. Mirza Abdul Gaffar and another (1996(1) SCC 639), Virendra Nath v. Mohd. Jamil and others (2004(6) SCC 140) and P.T. Munichikkanna Reddy and others v. Revamma and others ( 2007(6) SCC 59). 15. In my view, there is no error committed by the Courts below. The evidence has been correctly appreciated and the documents have also been construed properly. The material has been considered in its entirety and there is no error necessitating interference against the concurrent finding of facts recorded by the Courts below. Therefore, in my view, no substantial questions of law arises for consideration. The appeal is accordingly dismissed. ( Sanjay Karol ), Judge. July 3, 2008. (rana)