IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 205 of 1998. Reserved on : 14.09.2010. Decided on: 05.10.2010. _____________________________________________________ Mansho Devi and others. …Appellants. -Versus- Brahmi Devi and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. J.R. Thakur, Advocate. For the respondents. : Ms. Tim Saran, Advocate vice Mr. Vivek Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): This Regular Second Appeal is directed against the judgment and decree dated 01.10.1997, passed by the learned District Judge, Bilaspur in Civil Appeal No. 52 of 1988. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the predecessor-in-interest of the appellants, Shri Sarwan Singh plaintiff, in original suit, (hereinafter referred to as “the plaintiff) had instituted a suit for declaration to the effect that the land comprised in Khasra No. 4279 and 4286 was 15-17 bighas and after the consolidation, new Khasra No. 2122 and 2135, measuring 16 bighas has been 1 Whether the reporters of the local papers may be allowed to see the judgment? No. corrected in the Jamabandi. Khasra No. 4279, measuring 2-8 bighas was exchanged with the land of Shri Malagar comprised in Khasra No. 4291, 4293 and 4299, but after the death of Shri Malagar, his wife Smt. Jiuni had delivered back the possession of the exchanged land and thereafter, both the parties were enjoying the peaceful possession. During the consolidation operation, the revenue entries regarding the exchange of land remained in the name of defendant and the order of Consolidation Officer, dated 13.03.1963 and mutation No. 579 is illegal and is not binding. The mutation No. 579, which had been attested on the basis of the orders passed by the Consolidation Officer, had been set aside by the Financial Commissioner vide order dated 08.12.1964 and the matter was referred for arbitration as per provision contained under Section 10(4) of H.P. Consolidation of Holdings Act, 1953. Shri Run Singh, father of the plaintiff (since deceased) had withdrawn the arbitration proceedings with permission to seek the relief from the competent Civil Court. 3. The predecessor-in-interest of the respondents, Shri Inder Singh, defendant in original suit ( hereinafter referred to as “the defendant” for convenience sake) filed the written statement. On merits, the defendant had admitted the contents of the suit, but he had denied the withdrawal of the exchange of land. The defendant has alleged that Smt. Jiuni had no right to withdraw the exchange of land. The possession of the plaintiff over the suit land had also been denied and he had prayed for dismissal of the suit. 4. Plaintiff has filed the replication, whereby he has reiterated and reaffirmed the stand taken in the plaint. 5. The trial Court framed the issues on 05.09.1979, 08.04.1987 and 01.07.1987 and dismissed the suit on 30.11.1987. The plaintiff preferred an appeal before the learned District Judge, Bilaspur on 30.12.1987 against the judgment and decree dated 30.11.1987. The learned District Judge dismissed the appeal on 01.10.1997. Hence, this Regular Second Appeal. 6. Against the judgment and decree dated 01.10.1997, the appeal was admitted by this Court on the following substantial questions of law on 12.06.1998: “1. Whether the courts below have misread and misinterpreted and not legally examined the true import of question of adverse possession, in the facts of the case in hand? 2. That the lower appellate court has grossly erred in deciding the question of exchange of suit land between the parties and wrongly held that respondent is non-occupancy tenant of the appellant without any basis /legal evidence to that effect.” 7. Mr. J.R. Thakur, learned counsel for the appellants has strenuously argued that both the Courts below have misread the oral as well as documentary evidence. According to him, the plaintiff has proved that Smt. Jiuni Devi has returned back the suit land. 8. Ms. Tim Saran, learned vice counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 9. I have heard the learned counsel for the parties and gone through the pleadings carefully. 10. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 11. Plaintiff Shri Sarwan Singh has died during the pendency of this appeal and his legal representatives were brought on record vide office order dated 25.07.2006. Defendant Shri Indar Singh had also died and his legal representatives were brought on record on 14.05.1999. Appellant 1(b) Shri Rajender Singh also died and his legal representatives were brought on record on record on 27.07.2009. 12. Plaintiff has placed on record the copies of Khasra Girdawari Ex.P-1 and P-2, where in column No. 17, the entry of possession has been changed in favour of Smt. Jiuni and Shri Inder Singh as per order of Consolidation Officer, dated 13.03.1963. Ex.P-3 is the copy of mutation No. 579, whereby the mutation has been attested in favour of Shri Inder Singh and Smt. Jiuni on the basis of the orders passed by the Consolidation Officer. Ex.P-4 is the copy of Khasra Girdawari, Ex.P-5 is the order of learned Senior Sub-Judge, Bilaspur, whereby the reference under Section 10(4) of the H.P. Consolidation of Holdings Act, 1953 has been returned without any decision as the parties have expressed a desire that the question of title be left open and they shall get their title established from the proper Civil Court after the consolidation proceedings. Ex.P-6 is the statement of Shri Run Singh, on the basis of which, the reference has been returned. Ex.P-7 is the copy of Jamabandi for the year 1958-59, whereby the suit land comprised in Khasra No. 4299, 4291 and 4293, measuring 2-8 bighas has been shown in possession of the predecessor-in-interest of the plaintiff and in the column of owner, the name of Shri Inder Singh has been mentioned. Ex.P-8 is the copy of Rapat Rojnamcha, which has been incorporated on the basis of the order of the Consolidation Officer. Ex. P-9 is the copy of Khatoni Istemal, wherein the predecessor-in-interest of the plaintiff has been shown as owner, but in the column of possession, the names of Smt. Jiuni and Inder Singh are appearing and in the column of rent, the words Bila Lagaan Tassabar Malkiat Khud is mentioned. Ex. P-10 is the copy of Jamabandi for the year 1958-59, in which Khasra Nos. 4279 and 4286, measuring 15-17 bighas has been shown as owned and possessed by the predecessor-in-interest of the plaintiff. Ex.P-11 is the Jamabandi for the year 1963-64 pertaining to old Khasra Nos. 4286 and 4279 and new Khasra Nos. 2122 and 2135, measuring 16 bighas, which is shown in the ownership of Shri Ran Singh etc., but in the column of possession, Smt. Jiuni and Shri Inder Singh have been shown as Gair Marussi. Ex.P-12 is the copy of order of Financial Commissioner, whereby he has set aside the order of Consolidation Officer, dated 13.03.1963 and remanded the case to the Consolidation Officer for the reference of dispute to the Arbitrator for determination of issue of title as per provisions contained under Section 10(4) of the H.P. Consolidation of Holdings Act, 1953. Defendant has also tendered in evidence Ex.D-1 to Ex.D-15. Plaintiff has examined three witnesses and the defendant has also examined three witnesses. 13. It is not disputed that the plaintiff has exchanged the suit land with the predecessor-in-interest of the defendant Shri Malagar and necessary entries were also changed in the revenue record. However, according to the plaintiff, after the death of Shri Malagar, Smt. Jiuni has returned back the possession of the land given in exchange and accordingly, the revenue entries were corrected as per the copy of Jamabandi for the year 1958-59, Ex. P-10 and P-7. However, again these entries were changed and made in favour of the defendant by the Consolidation Officer. The orders passed by the Consolidation Officer and the mutation has been set aside by the Financial Commissioner on 08.12.1964. The Consolidation Officer had been directed by the Financial Commissioner to refer the dispute to the Arbitrator as per the provisions contained under Section 10(4) of the H.P. Consolidation of Holdings Act, 1953. The arbitration proceedings were returned without any decision as the parties had desired to get the question of title ascertained from the proper Civil Court. The revenue entries in Ex.P-10, i.e., Jamabandi for the year 1958-1959 without any authority of law. There is no iota of evidence placed on record how the change in revenue record had been effected. The stand of the plaintiff shows that the withdrawal of the exchange was effected on the statement of Smt. Jiuni made before the Patwari. However, there is nothing on record to prove this fact. The plaintiff has failed to prove that the suit land was ever returned by Smt. Jiuni Devi, widow of late Shri late Shri Malangar. The possession of the defendant over the suit land has remained continuous from the date of knowledge, i.e., 1958 without any interruption and hostile to the interest of the plaintiff. The plaintiff had failed to prove his ownership and possession over the suit land. He had failed to prove that he was dispossessed forcibly by the defendant on 25.07.1984. It is established that the entire suit land was owned and possessed by Shri Malagar and after his death, Smt. Jiuni came in possession of the suit property. The suit was filed by the predecessor-in-interest of the plaintiff after 12 years from the orders passed by the Consolidation Officer, dated 13.03.1963. The order passed by the Consolidation Officer could be challenged only within a period of one year as per Article 100 of the Limitation Act. 14. Accordingly, in view of the observations made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge October 05, 2010. (bhupender)