JUDGEMENT Kuldip Singh, Judge (Oral). The defendant has come in second appeal against judgment, decree dated 07.11.2000 passed by learned District Judge, Bilaspur in Civil Appeal No. 72 of 1990, affirming judgment, decree dated 31.10.1990 passed by learned Sub Judge Ist Class,Ghumarwin, in Case No. 45-1/1987. 2. The facts, in brief, are that respondent had filed a suit for declaration and permanent injunction against Gandhi, predecessor in interest, of appellants regarding land comprised in Khasra No. 81, measuring 2-11 bighas and Khasra No. 68/1 measuring 2-15 bighas, situate in village Badi Bhagot, Tehsil Ghumarwin, District Bilaspur. The pleaded case of the respondent is that Gandhi had sold the suit land to him for consideration of ‘2,500/-. He paid ‘1,000/- on 28.11.1966. It was agreed that he would pay ‘1,000/- later on and ‘ 500/- at the time of mutation. It has also been alleged that title of Gandhi was defective and thereby he could not execute the sale deed and on 21.10.1967 the remaining amount was paid to Gandhi. The revenue entries were changed in favour of respondent. It has been alleged that respondent is owner in possession of the suit land by virtue of sale deed dated 28.11.1966. In alternative, if sale is not proved then he has become owner in possession by virtue of adverse possession as he had been enjoying the suit land since 1966 continuously without interruption. 3. It has also been pleaded that Gandhi had applied before Assistant Collector 2nd Grade for correction of the revenue entries and got the same corrected ex-parte on 19.04.1986 which is without jurisdiction. The respondent was not served in those proceedings. It has been pleaded that Gandhi threatened to interfere over the suit land, hence, the suit was filed. 4. The suit was contested by filing written statement in which preliminary objections of maintainability, jurisdiction and estoppel were taken. On merits, it was denied that the suit land has been sold by Gandhi to respondent. The execution of the agreement was also denied. The possession of the respondent over the suit land was also denied. 4. The suit was contested by filing written statement in which preliminary objections of maintainability, jurisdiction and estoppel were taken. On merits, it was denied that the suit land has been sold by Gandhi to respondent. The execution of the agreement was also denied. The possession of the respondent over the suit land was also denied. It has been alleged that respondent got the revenue entries changed in connivance with the revenue staff in absence of Gandhi and when Gandhi came to know about the changed revenue entries, he applied before the Assistant Collector 1st Grade, Ghumarwin, who corrected the revenue entries and Gandhi was shown as owner in possession of Khasra No. 68 min. However, respondent cleverly got executed sale deed with respect to Khasra No. 81 without payment of any amount. Gandhi refused to sign the document and, therefore, he remained in physical possession of land comprised in Khasra No. 81 also. The adverse possession of the respondent on the suit land has been denied. 5. The replication was filed. The defence projected by Gandhi was contested and stand taken in the plaint was reiterated. Gandhi died during the pendency of the second appeal and his legal representatives were brought on record. 6. On the pleadings of the parties, the following issues were framed :- 1.Whether the plaintiff is owner in possession of the suit land as alleged? OPP.2. If issue No.1 is not proved whether the plaintiff has become owner by way of adverse possession over the suit land as alleged ? OPP. 3. Whether the defendant is interfering over the suit land as alleged?OPP. 4. Whether the plaintiff is entitled for possession if founddispossessed during the pendency of the suit as alleged? OPP.5. Whether the suit is not maintainable as alleged? OPD. 5-A. Whether the suit is liable to be stayed as alleged? OPD.6.Whether this court has no jurisdiction as alleged?OPD.7.Whether the plaintiff is estopped to file the suit as alleged?OPD.8.Relief. The issues No.1 ,4,5,5-A,6 and 7 were answered in negative,issues No. 2 and 3 in affirmative and the suit was decreed on 31.10.1990. In appeal, learned District Judge on 07.11.2000 affirmed the judgment, decree dated 31.10.1990, hence second appeal which has been admitted on following substantial questions of law:-1. The issues No.1 ,4,5,5-A,6 and 7 were answered in negative,issues No. 2 and 3 in affirmative and the suit was decreed on 31.10.1990. In appeal, learned District Judge on 07.11.2000 affirmed the judgment, decree dated 31.10.1990, hence second appeal which has been admitted on following substantial questions of law:-1. Whether both the Courts below have misread and mis­interpreted the oral and documentary evidence on record to come to the conclusion that respondent-plaintiff has become owner of the land in dispute by way of adverse possession?2.Whether the suit of the respondent-plaintiff was maintainable without challenging the revenue entries recorded on the basis of the order passed by Asstt. Collector IInd Grade in view of Section 171 of H.P. Land Revenue Act?3.Whether the Ld. Trial Court has been justified in not returning findings separately on each issue as is mandated by Order 20 Rule 5 CPC?6A. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellants, it has been submitted that the two Courts below have completely misread and misinterpreted the plea of adverse possession of the respondent. The findings returned by the two Courts below on the point of adverse possession are based upon total misconstruction of evidence and the law relating to adverse possession. The learned counsel for the respondent has supported the impugned judgment and decree and has submitted that two Courts below have recorded concurrent finding of fact that respondent is in adverse possession of the suit land. In second appeal reappreciation of evidence is not permissible. He has prayed for dismissal of the appeal. 7. The substantial question of law No.2 is taken first for determination. The learned counsel for the appellants has fairly submitted that he is not pressing the substantial question of law No.2 and, therefore, substantial question of law No.2 is decided against the appellants. 8. The substantial question of law No.1 is now taken up for determination. In the plaint, respondent has pleaded that he is owner in possession by virtue of sale deed dated 28.11.1966 which is written in the shape of agreement. 8. The substantial question of law No.1 is now taken up for determination. In the plaint, respondent has pleaded that he is owner in possession by virtue of sale deed dated 28.11.1966 which is written in the shape of agreement. It has also been pleaded by respondent that if he fails to prove that he is not owner in possession of the suit land through sale deed, then he is owner in possession of suit land by virtue of adverse possession as he is in cultivating possession of the suit land since 1966. In the written statement filed by the predecessor-in-interest of the appellants, the plea of adverse possession has been denied, even possession of the respondent over the suit land has been denied. 9. In Ex.PA ‘Ikrarnama’ dated 28.11.1966, it has been provided that possession has been given since ‘Rabi’ 1966, but in the plaint which is the foundation of the claim, the respondent has pleaded that he is in possession of the suit land since 28.11.1966 the date of agreement Ex.PA. Therefore, the respondent cannot be heard to say that the possession of the suit land was given to him independently and not on the basis of agreement Ex. PA. 10. Once the respondent came in possession of the suit land on the basis of agreement dated 28.11.1966, the next question is whether respondent can be said to be in adverse possession of the suit land when he entered over the suit land on the basis of agreement. The respondent appeared in the witness box as PW-1. He has stated that he had purchased the suit land from Gandhi in the year 1966 for ‘2,500/- on the basis of writing Mark ‘X’. He had paid ‘1,000/- earnest money. The remaining amount was paid to Gandhi after one year. He is coming in possession of the suit land as owner. In his statement, the respondent has nowhere projected his case that he is owner in possession of the suit land on the basis of adverse possession. On the contrary, the respondent has stated that he is in possession of the suit land on the basis of sale. In fact, no sale deed was executed between the parties and respondent was not put in possession of the suit land on the basis of any sale or sale deed. On the contrary, the respondent has stated that he is in possession of the suit land on the basis of sale. In fact, no sale deed was executed between the parties and respondent was not put in possession of the suit land on the basis of any sale or sale deed. It is the case of the respondent that he was put in possession of the suit land on the basis of writing dated 28.11.1966 Ex. PA. 11. In Achal Reddy Versus Ramakrishna Reddiar and Others (1990) 4 SCC 706 the question of law before Supreme Court was as to character of the possession of Varada Reddi between July 10,1946 and July 17, 1947, was adverse or only permissive. The Supreme Court has held as follows:- “ In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well settle rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner’s title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in a case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.” 12. In the present case, the respondent came in possession of suit land on the basis of agreement Ex. PA which was executory in nature. On the basis of Ex. PA no suit for specific performance or independent sale deed was executed in favour of respondent. The possession of respondent remained permissive since his entry over the suit land was under agreement Ex. PA. The two Courts below have not appreciated this vital question of law which has bearing on the ultimate result of the case. The respondent in his statement has not stated even a word that he is in adverse possession of the suit land. This clinches point on adverse possession against the respondent. The learned District Judge has noticed Achal Reddy (supra) in the impugned judgment from other Journal, but he has not applied the law laid down by the Supreme Court in Achal Reddy properly. The impugned judgment and decree are not sustainable. The substantial question of law No. 1 is decided in favour of the appellants. 13. The learned counsel for the appellants has not pressed the substantial question of law No.3, hence, this question is decided against the appellants. 14. No other point was urged. 15. In view of above discussion, the appeal is allowed and the impugned judgment and decree are set aside and suit of the respondent is dismissed with no order as to costs. The pending applications, if any, are also disposed of in view of disposal of the main appeal.