High Court of Himachal Pradesh · 2011

Mr. Romesh Verma, Advocate. : This Regular Second Appeal is directed against the judgment and decree dated 03.12.2002, passed by the learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 33-P/2000.

2. Material facts necessary for adjudication of this Regular Second Appeal, are that the predecessor-in-interest of the respondents late Shri Dhani Ram-plaintiff (hereinafter referred to as (cid:147)the plaintiff(cid:148) for convenience sake) had instituted a suit for possession against the appellants-defendants (hereinafter referred to as (cid:147)the defendants(cid:148) for brevity sake). According to him, he was owner of the suit land and was in possession of the same till the harvesting of Kharif crop of the year 1996. On 20.05.1996, the 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - defendants forcibly took possession of the land and sown paddy therein.

3. The written statement was filed by the defendants. According to the defendants, they were in possession of the suit land since 1961-1962, i.e., during consolidation and now they have become owners of the suit land by way of adverse possession.

4. Replication was filed by the plaintiff. The trial Court framed the issues on 21.12.1998. The trial Court decreed the suit on 15.01.2000. The defendant preferred an appeal before the learned Additional District Judge-II, Kangra at Dharamshala. The same was dismissed on 03.12.2002. Hence, this Regular Second Appeal. This Regular Second Appeal was admitted on the following substantial questions of law on 28.04.2003: (cid:147)1. Whether both the Courts below have misred and mis-appreciated the oral and documentary evidence on record, more specifically Exts. D-1 to D-6 to hold that the respondents/plaintiffs are the owners of the land in dispute and they are entitled to possession thereof?

2. Whether the trial Court has erred in dismissing the application under Order 6 Rule 17 C.P.C. of the appellants/defendants, which had material bearing on their case?

5. Mr. Banbhushan, learned vice counsel for the appellants have vehemently argued that both the Courts below have misred and misconstrued the oral as well as documentary - 3 - evidence. According to him, the learned Courts below have mis- appreciated Ex. D-1 to D-6 and the application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement has been wrongly decided by the learned Additional District Judge-II, Kangra at Dharamshala.

6. Mr. Romesh Verma, learned counsel respondents has supported the judgments and decrees passed by both the Courts below.

7. I have heard the learned counsel for the parties and gone through the pleadings carefully.

8. 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.

9. According to the plaintiff, the defendants have taken over the suit land forcibly on 20.05.1996. He has denied that the Settlement Officials have found the possession of the defendant over the suit land. PW-2 Shamsher Singh has supported the version of plaintiff.

10. According to defendant Jagat Ram, he was cultivating the suit land since 1961-1962 and the possession of the suit land was given to him during the proceedings of (cid:145)TELEBAND(cid:146). According to him, the plaintiff has knowledge about the delivery of possession to him. However, he has not disclosed as to who has handed over the possession of the suit land to him in the year 1961-1962. According to him, the next settlement took place in the year 1971-1972 and the suit land was demarcated and his possession was declared over the suit land. However, he has not produced any tangible evidence to prove whether he has filed any - 4 - application for recording his possession during (cid:145)TELEBAND(cid:146) or settlement. DW-2 Rajinder Singh has supported the version of DW-1 Jagat Ram.

11. As per Ex. P-3, certified copy of Jamabandi for the year 1966-67, the plaintiff has been shown in ownership and possession of the suit land. In Ex. D-1, certified copy of Jamabandi for the year 1981-82, the suit land has been shown under the ownership of plaintiff Dhani Ram and in possession of defendants Jagtu and Johli. In Ex. D-2, copy of the Jamabandi for the year 1986-87, the same position has been reiterated. In copy of Jamabandi for the year 1991-1992, Ex. D-3, the same entries are in existence as in Ex. D-2. In Jamabandi for the year 1996- 1997, Ex. D-4, the same position is reiterated.

12. According to the revenue record, the defendants came into possession of the suit land in the year 1971-1972, however, before that the suit land was recorded in exclusive ownership of plaintiff. The defendants have not led any tangible evidence to prove how the suit land was given to them during consolidation proceedings in the year 1961-1962. In copy of Jamabandi, Ex. P-3 for the year 1966-1967, the ownership and possession is with the plaintiff.

13. The defendants have taken the plea of adverse possession, but no evidence has been led by the defendants to establish the same. It is necessary for the parties, who claim title by way of adverse possession to give the point of time when he started claiming the adverse title against the true owner and at what point of time 12 years were complete. The ingredients of adverse possession are required to be proved by leading tangible - 5 - and cogent evidence. Mere possession over the suit howsoever long, cannot be said to have matured into adverse title, unless the person in possession stake his claim hostile to the interest of the real owner.

14. DW-1 Jagat Ram in his statement has categorically admitted that the plaintiff is the owner of the suit land. In his statement, he has not given the period from which date he is claiming adverse possession, except by stating that he thought himself the owner of the suit land. The defendant has not placed on record any order passed by the revenue authorities during the time of (cid:145)(cid:145)TELEBAND(cid:146) or settlement, on the basis of which, he has handed over the possession. Though there is statement of DW-2 that after measurement, the Tehsildar has announced the order in favour of Jagat Ram, however, this order, purportedly passed by the Tehsildar, has not been placed on record. Learned Additional District Judge-II, Kangra at Dharamshala while dismissing the application under Order 6 Rule 17 of the Code of Civil Procedure preferred by the appellant vide order dated 27.11.2002, has given cogent and convincing reasons. The order dated 27.11.2002 is a self contained order.

15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. July 19, 2011. (bhupender) (Rajiv Sharma) Judge - 6 - - 7 -