IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 75 of 2008. Reserved on: 20.04.2011. Decided on: 05.05.2011. _____________________________________________________ Ram Singh. …Appellant. -Versus- Lila Devi. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the appellant. : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the respondent. : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 31.10.2007, passed by the learned District Judge, Solan in Civil Appeal No. 61-S/13 of 2006. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had instituted a suit against the respondent-defendant (hereinafter referred to as “the defendant” for convenience sake), for possession and mandatory injunction for recovery of possession of land and suit property, comprised in Khasra No. 590, including old house, situated in Village Katoh, Pargana-Vakna, Tehsil Kandaghat, District Solan. He also sought decree of mandatory injunction, 1 Whether the reporters of the local papers may be allowed to see the judgment? - 2 - directing the defendant to pull down the said unauthorized construction forthwith, comprised in Khasra No. 590/3, measuring 1 biswa. He also pleaded that he was owner of 5 biswas of land, situated in Village Katoh, Pargana Vakna, Tehsil Kandaghat, District Solan, comprised in Khewat No. 35/41min, bearing Khasra No. 590. He also pleaded that he owns a house constructed over the land, which covers an area of about 3 biswas, which has been coming under the monthly tenancy of the defendant at the rate of `10/- per month. He filed a suit for injunction against the defendant in the year, 1985. The same was decreed on 25.07.1987. The defendant preferred an appeal against the judgment and decree dated 25.07.1987. However, the same was dismissed by the learned District Judge on 19.11.1991. The Court held the possession of the defendant over the suit land, including over the house illegal and his plea of adverse possession was also rejected. According to him, the defendant had no right to raise construction in the suit land. The construction by the defendant was illegal. She was asked to hand over the possession of the land in suit to the plaintiff, but she had been assuring that she would hand over the possession as and when she finds alternative site for construction of her house, but she has not kept her promise. 3. The suit was contested by the defendant. On merits, it was pleaded that the revenue entries depicting the plaintiff as owner in possession of the suit land, were wrong and illegal and not binding upon the defendants. She denied that she was coming in possession of the house as tenant at the rate of `10/- per month. She further pleaded that in the year, 1946, her mother - 3 - came into the physical possession of the land and then she constructed a house. The property devolved upon her by way of Will. The possession of the defendant was coming through her mother since 1946 and she has become its owner by way of adverse possession. The defendant has taken compensation from the Government for the repair of the house and at that time, the plaintiff has not raised any objection. The learned Civil Judge (Senior Division), Kandaghat has framed the issues on 08.09.1999. The suit of the plaintiff was decreed. He was held entitled for vacant possession of the land comprised in Khasra No. 590, including old house, situated in Village Katoh, Pargana Vakna, Tehsil Kandaghat, District Solan by removal of unauthorized construction raised upon the suit land. The defendants preferred an appeal before the learned District Judge, Solan. The same was allowed on 30.10.2007. Hence, this Regular Second Appeal. 4. The Regular Second Appeal was admitted on the following substantial questions of law: “1. When in the previous suit instituted by plaintiff- appellant, the stand taken by the defendant- respondent of perfecting her title of adverse possession was negated, was not the plea of adverse possession barred by the principles of res judicata? 2. When the proceedings in the previous suit finally terminated in the year 1991 and the fresh suit was again instituted by the plaintiff- appellant within 12 years, are not the findings recorded by the Lower Appellate Court that the hostile title of the defendant-respondent has become perfect by lapse of time, by considering - 4 - the possession antecedent to the final termination of the previous proceedings? 5. Mr. Bhupender Gupta, learned Senior Advocate for the appellant has supported the judgment dated 30.06.2006, passed by the learned Civil Judge (Senior Division), Kandaghat, District Solan. He has vehemently argued that issue with regard to adverse possession has already been determined in Civil Suit No. 22/1 of 1985 filed by the plaintiff vide judgment dated 25.07.1987. The findings recorded by the learned Sub Judge 1st Class, Kandaghat on 25.07.1987 were also affirmed by the learned District Judge, Solan in Civil Appeal No. 195-S/13 of 1987. He also argued that the findings recorded by the learned trial Court in earlier suit have attained finality. He then contended that the learned District Judge has erred in law by permitting the defendant to count the period of 12 years before 19.11.1991 by tacking the period w.e.f. 1985 to 1991. He then argued that the findings recorded in the earlier suit between the parties constitute res judicata. 6. Mr. G.D. Verma, learned counsel for the respondent has supported the judgment and decree dated 31.10.2007, passed by the learned District Judge, Solan. He has strenuously argued that the findings recorded in earlier suit between the parties will not constitute resjudicata. He also argued that the period of earlier possession of the defendant between 1985 to 1991 was to be counted. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. - 5 - 8. Since all 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. 9. Plaintiff has appeared as PW-1. He has admitted in his cross-examination that defendant is widow. He also admitted that at Kaithlighat, the defendant has no other house than the present house. He has denied that the disputed house was constructed by the mother of the defendant in the year, 1946. He has admitted that the possession of defendant was coming over the suit land since the time of her mother. He has also admitted that in the year 1979, the tin sheets of the house were stolen by some miscreants. He also admitted that the plea regarding the tenancy of Yashoda has been rejected by the Appellate Court in the earlier suit. He has also admitted that the Tehsildar has earlier passed an order for correction of revenue entries in favour of the defendant, but voluntarily stated that he had preferred an appeal against that order and the same was also dismissed by the Appellate Court. 10. Narayan Dutt has appeared as PW-2. In his cross- examination, he denied that his house is situated about 2 Kms. away from the suit land, but voluntarily stated that his house is about ½ Km. away from the disputed site. He has shown his ignorance to the fact that cattle stock of defendant used to be kept in the disputed house. He has also admitted that in the year, 1988, the house has collapsed during the rainy season. He has further admitted that the defendant was not a tenant of Ram Singh. - 6 - 11. Defendant has appeared as DW-1. She has tendered her evidence by way of affidavit. She has denied that her possession over the suit land was illegal. She has admitted that Ram Singh has also filed a suit against her. She has shown her ignorance to the fact that in that suit she has taken a plea of adverse possession. She also shown her ignorance to the fact that the Court has rejected her plea of adverse possession. She has denied that ancestors of Ram Singh has constructed the house over the suit land, but voluntarily stated that her mother has constructed the disputed house in the year, 1946. She has denied the tenancy. She has also denied that she has no authority to construct the second house. 12. Shiv Dutt has appeared as DW-2. He has tendered his evidence by way of affidavit, Ex. D-B. In his cross-examination, he has stated that defendant was his relative. His house was about 1 Km. away from the disputed site. He has denied that the disputed house was constructed by the father of Ram Singh, but voluntarily stated that the said house was constructed by Yashoda. 13. DW-3 Chuni Lal has also tendered his evidence by way of affidavit, Ex. D-C in order to prove the continuous possession of the defendant over the suit land. He has denied that the disputed house was constructed by the father of the plaintiff. 14. Hukam Singh has appeared as DW-4. He has brought the record from the office of S.D.M., Kandaghat. He has proved that a sum of `1000/- was given to the defendant on 24.09.1988 for the repair of house which was damaged during the rainy season. Tarun Jeet Singh (DW-5) has brought the summoned record including F.I.R., Ex. DW-5/A to Ex. DW-5/C. - 7 - 15. Suresh Sharma (DW-6), Junior Assistant of Electricity Board has also brought the record of the Electricity Board pertaining to the house of Leela Devi. He has stated that one electricity meter was installed at Kaithlighat in the year, 1988, but the same was disconnected in the year, 1992. Another meter was installed in the house on 07.05.1992, which was still continuing in the name of defendant. 16. DW-7 is Shri Tara Dutt. He has tendered his evidence by way of affidavit Ex. D-7. He has proved the Will, Ex. DW-7/A executed by Yashoda in favour of the defendant. In his cross- examination, he has stated that he knew Balwant Singh, Petition Writer, but voluntarily stated that he could not say whether he is alive or he has passed away. 17. Learned Civil Judge (Senior Division), Kandaghat, District Solan, on the basis of the evidence led by the parties, has come to the conclusion that the defendant has failed to prove his title over the suit land by way of adverse possession. According to him, the stand taken by the defendant was contradictory. It is evident from the revenue record that the plaintiff was owner of the land in dispute, however, the same was in possession of the defendant. The learned trial Court also came to the conclusion that since the question of adverse possession was earlier raised by the defendant in Civil Suit No. 22/1 of 1985, the same issue could not be re-opened. In other words, in view of the findings recorded in the earlier suit, the plea of defendant was barred by the principles of resjudicata. Learned trial Court while deciding issue No. 5, held that the plaintiff has duly proved his title over the suit land and he was entitled for the restoration of vacant possession - 8 - of encroached land, where the defendant has constructed her house and was also entitled to the possession of suit property, comprised in Khasra No. 590. However, the 1st Appellate Court has overlooked the findings recorded in earlier Civil Suit No. 22/1 of 1985, decided on 25.07.1987 vide Ex. P-6. The findings recorded by the learned Sub Judge 1st Class, Kandaghat in the judgment dated 25th July, 1987 were to the following effect: “Keeping in view the entries in revenue record and the contradictory statements of DWs produced by Lila Devi, it is held that Smt. Lila Devi is not the owner of the land and the house either by way of grant or by way of adverse possession.” 18. The findings recorded by the learned trial Court on 25.07.1987 were affirmed by the learned District Judge in Civil Appeal No. 195-S/13 of 1989 vide judgment dated 19.11.1991. Para-12 of the judgment dated 19.11.1991 reads thus: “12. Alternatively, the case of the defendant is that she is coming in possession of the land in dispute and the house situated therein, since the time of her predecessor in interest and her such adverse possession has ripened into ownership. Though the defendant has been able to prove her possession over the entire land in dispute and the house situated therein, she has not been able to establish her adverse possession for a continuous period of twelve years. The learned court below rightly concluded that the defendant has not been able to prove her adverse possession for a period of twelve years.” 19. It is, thus, evident that in view of the findings recorded in earlier Civil Suit, the plea of adverse possession taken by the defendant was not tenable. It was hit by Section 11 of the - 9 - Code of Civil Procedure. Earlier litigation was between the same parties and the issue raised was also the same, as far as plea of adverse possession is concerned. Plaintiff has argued before the 1st Appellate Court that the principles of resjudicata were attracted in this case. Learned District Judge has erred in law by tacking the period w.e.f. the initial date of filing of the earlier suit, i.e., 11th June, 1985 to the date of decision in appeal on 19.11.1991. The defendant has to prove his continuous, uninterrupted and hostile possession. The period in the instant case has to commence from 19th November, 1991 and not from 1985. The defendant has also not led any cogent and conveniencing evidence to prove adverse possession. The statements of D.Ws. are contradictory. 20. Accordingly, in view of the observations/discussions made hereinabove, the Regular Second Appeal is allowed. The judgment dated 31.10.2007, passed by the learned District Judge, Solan in Civil Appeal No. 61-S/13 of 2006 is set aside and the judgment dated 30.06.2006, passed by the learned Civil Judge (Senior Division), Kandaghat in Civil Suit No. 23-K/1 of 1999 is restored. No costs. (Rajiv Sharma) Judge May 05, 2011. (bhupender) - 10 -