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2012 DIGILAW 267 (HP)

Nand Lal v. State Of Himachal Pradesh

2012-05-09

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 17.12.2011, passed by the learned Additional District Judge, Shimla, Camp at Rohru in Civil Appeal No. 31-R/13 of 2008. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as "the plaintiff" for the sake of convenience) had filed a suit for declaration against the respondent-defendant (hereinafter referred to as "the defendant" for the sake of brevity). According to the plaintiff, Kamla Nand, father of the plaintiff purchased the suit land from one Mast Ram vide agreement dated 13.03.1967. The possession was delivered to him at the time of execution of the agreement. Later on, Kamla Nand, filed an application before the Assistant Collector II, Rohru on 28.12.1977. The same was allowed on 08.05.1978. The possession of the plaintiffs father was ordered to be recorded. Plaintiff developed the suit land. He died on 22.03.2004. Plaintiff was given the land under the family settlement. Plaintiff had been in peaceful, open and hostile possession over the suit land, to the knowledge of the defendant since 13.03.1967. He has become its owner by way of adverse possession. The cause of action accrued to the plaintiff in October, 2005, when his request to record him as owner of the suit land, was declined by the defendant. 3. The suit was contested by the defendant. It has been averred that the suit land was recorded in possession of Bhadru and Naki, but on the orders of Assistant Collector, IInd Grade, Rohru, these revenue entries were ordered to be corrected and name of Kamla Nand was ordered to be recorded as devedar bai vide order dated 08.05.1978. According to him, plaintiff is not in possession of the suit land. Therefore, he has not become its owner by way of adverse possession. 4. The replication was filed by the plaintiff. Learned trial Court framed the issues on 14.11.2006. Plaintiff has produced five witnesses. Documentary evidence of the plaintiff includes copy of Jamabandi for the year 2002-03 (Ex. PW-1/A), copy of Misal Haquiat Bandobast Zadid (Ex. PW-1/B), copy of Jamabandi for the year, 1976-77 (Ex. PW-1/C), order dated 8.5.1978, passed by the Assistant Collector, Second Grade, Rohru in Misal No. 1/78 (Ex. PW-2/A) and notice dated 11.11.2005 (Ex. PW-2/B). 5. The defendant has produced three witnesses. PW-1/A), copy of Misal Haquiat Bandobast Zadid (Ex. PW-1/B), copy of Jamabandi for the year, 1976-77 (Ex. PW-1/C), order dated 8.5.1978, passed by the Assistant Collector, Second Grade, Rohru in Misal No. 1/78 (Ex. PW-2/A) and notice dated 11.11.2005 (Ex. PW-2/B). 5. The defendant has produced three witnesses. Learned Civil Judge (Junior Division), Court No. 2 dismissed the suit on 24.08.2007. Plaintiff preferred an appeal before the learned Additional District Judge, Shimla, Camp at Rohru. The same was dismissed on 17.12.2011. 6. Mr. Rajiv Sirkeck, learned counsel for the appellant has strenuously argued that both the Courts below have misconstrued and mis-appreciated the oral as well as documentary evidence. According to him, the plaintiff has proved the ingredients of adverse possession. 7. I have heard Mr. Rajiv Sirkeck, learned counsel for the appellant at length and gone through the judgments carefully. 8. Plaintiff has not proved the relinquishment in his favour by any deed. PWs. have not made any reference to relinquishment of rights by other legal heirs in favour of the plaintiff. It is evident from Ex. PW-1/C, copy of Jamabandi for the year 1976-77 that the suit land was recorded in possession of Bhadru, S/o Jethu and Naki, S/o Bhalku, in equal shares in the capacity of non-occupancy tenants. The rent column reflects that no rent was paid by them to the land owner, i.e., State of Himachal Pradesh The entry of non-occupancy was a stray entry and it did not confer any status of non-occupancy tenants on them. They were merely trespassers. It was during the settlement that the name of plaintiffs father was recorded in the Misal Haquait, Ex. PW-1/B in the column of possession as davedar bai pursuant to the order dated 08.05.1978, passed by the A.C. IInd Grade, Rohru, Ex. PW- 2/A. A perusal of the order shows that father of the plaintiff was asserting that he had purchased the land from Mast Ram, who inturn had purchased it from Jethu etc. Shri Jethu/Bhadru had no title in the suit land and they were simply trespassers. They could not confer any better title of the suit land either on Mast Ram or upon the father of the plaintiff. The suit land remained in the ownership of the State. The name of Mast Ram has not been recorded in any revenue record. Shri Jethu/Bhadru had no title in the suit land and they were simply trespassers. They could not confer any better title of the suit land either on Mast Ram or upon the father of the plaintiff. The suit land remained in the ownership of the State. The name of Mast Ram has not been recorded in any revenue record. The names of Shri Badru, son of Jethu and Naki, son of Bhalku have been recorded in possession in equal shares in the capacity of non-occupancy tenants as per Jamabandi for the year 1976-77, Ex. PW-1/C. The statements of DWs. 1 to 3 will not advance the case of the plaintiff since he himself is claiming possession on the basis of agreement to sell dated 13.03.1967. Plaintiff has also moved an application under Order 41, Rule 27 of the Code of Civil Procedure before the 1st Appellate Court. The same was not accompanied by any document. In these circumstances, the application has rightly been rejected by the learned 1st Appellate Court. It has not come in the statement of PW-2 Nand Lal that his father has ever asserted hostile title against the title of the State of Himachal Pradesh in respect of the suit land till 2004. Merely the long possession over the suit land itself will not constitute adverse possession. Plaintiff has failed to prove the ingredients of adverse possession. He has not led any evidence that his possession was peaceful, hostile and open. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 9. Accordingly, in view of the observations and discussions made herein above, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.