JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal has been instituted against judgment and decree dated 8.6.2010 rendered by the learned District Judge, Mandi, District Mandi, Himachal Pradesh in Civil Appeal no. 64/2008. 1. “Key facts” necessary for the adjudication of the present appeal are the appellant-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) instituted a suit for declaration. According to the averments made in the plaint, land comprised of Khewat and Khatatuni No. 85/125, Khasra No. 625/33, 41, 42 and 43 Kitas 4, measuring 6-19-13 Bighas situate at Mauja Dhangu Illaqa Balh, Tehsil Sadar, District Mandi was owned and possessed by Niki Devi who died on 18.10.1997. She died issueless. She was grandmother of the parties. She was looked after by the parties to the suit. She executed a registered Will Ext. PW-2/A in favour of the parties on 30.6.1975. Plaintiff came to know that the defendant has got recorded himself to be exclusive owner-in-possession of the suit property on the basis of judgment and decree passed by Sub Judge, Court No. I, Mandi on 31.5.1993. Suit was filed on false and frivolous grounds claiming himself to be exclusive owner-in-possession by way of adverse possession and got filed written statement on behalf of Niki Devi, admitting his claim in the suit whereas suit property was cultivated by both the parties. Written statement got filed by the defendant in earlier suit was a forged document that he was owner-in-possession of the suit property by way of adverse possession. Plaintiff prayed that the judgment and decree passed by the learned Sub Judge was result of forgery and fraud played by the defendant and same was liable to be declared null and void and not binding upon the parties. Mutation no. 357 was also wrong. 2. Suit was contested by the defendant. It was denied by the defendant that the Will was executed on 30.6.1975. According to the averments made in the written statement, plaintiff was serving at Shimla from the very beginning, so the question of cultivating the suit property of Niki Devi and rendering service to her, did not exist. He denied that he has filed forged written statement, on the basis of which he was declared owner-in-possession of the suit property by way of adverse possession by the Sub Judge, Mandi. 3. He denied that he has filed forged written statement, on the basis of which he was declared owner-in-possession of the suit property by way of adverse possession by the Sub Judge, Mandi. 3. Issues were framed by the learned Civil Judge (Junior Division), Mandi on 18.7.2001 and on 5.9.2003. Suit was dismissed on 12.6.2008. Plaintiff filed an appeal. Learned District Judge, dismissed the same on 8.6.2010. Hence, this Regular Second Appeal. 4. The appeal was admitted on 15.9.2010 on the following substantial question of law: “Whether the two Courts below failed to appreciate the evidence of the attending circumstances, with regard to the plea of the appellant that decree in the previous suit between the respondent and Nikki was the result of fraud?” 5. Mr. Bhupender Gupta, learned Senior Advocate, on the basis of substantial question of law, has vehemently argued that the judgment and decree rendered in Civil Suit No. 14/1993 dated 31.5.1993 was a result of fraud. Mr. Bhupender Gupta, learned Senior Advocate has drawn the attention of the Court to para 7-A of the amended plaint. It reads as under: “7(A) Particulars of fraud and forgery are as under: - (i) That Smt. Niki Devi was a village simpleton old and illiterate lady and the defendant by getting the benefit of her such position has been able to procure a decree of adverse possession vide judgment and decree dated 31.5.93 (ii) That Smt. Niki Devi never thumb-marked the alleged written statement filed in civil suit No.14/193 and the defendant by putting thumb mark of some other person on the said written statement, has committed forgery. (iii) That there was an another suit titled as Niki Devi Versus Collector and others baring No. 205/92, which has been instituted on 3.8.92, the said suit has been filed by Smt. Niki Devi against the State and General Manager of Industry Department, who had been encroaching upon the property of Smt. Niki Devi, which was also subject matter of Civil Suit No. 14/93 and when the defendant filed a civil suit No. 14/93, the civil suit No. 205/92 was also pending in the Court and the defendant after procuring power of attorney from Niki Devi had been perusing the civil suit No. 205/92 on behalf of Smt. Niki Devi and under the pretext of civil suit No. 205/92, the defendant must have procured thumb-mark on the alleged written statement of Civil suit No. 14/93 if, the said thumb impression is found to be of Smt. Niki Devi and as such, the defendant must have practised fraud upon late Smt. Niki Devi. (iv) Smt. Niki Devi never appeared in the Court and the defendant must have put some other person in her place by personifying that lady to be of Smt. Niki Devi and as such, he has committed fraud and forgery. (v) That if at all, in the alleged statement of late Smt. Niki Devi recorded in the Court in Civil suit No. 14/93, the thumb impression is found to be of Smt. Niki Devi, even then she had never been explained the contents and effect of that statement recorded in the Court under the garb of that another suit, which was filed against the State and others, the defendant must have played fraud on her and must have misrepresented to depose in the Court to admit his claim in civil suit No. 14/93. (vi) That Smt. Niki Devi resided over the suit property till her last and also died in the house situated over the suit property and as such, there is no question of ouster of Smt. Niki Devi from the suit land. (vi) That Smt. Niki Devi resided over the suit property till her last and also died in the house situated over the suit property and as such, there is no question of ouster of Smt. Niki Devi from the suit land. (vii) That the Civil suit No. 205/1992, has been instituted on 3.8.1992 and decided on 7.6.1997 which was persued by the defendant being power of attorney of Smt. Niki Devi and in that suit Smt. Niki Devi has been held owner in possession of this property and as such, there is no question of adverse possession on the part of the defendant over the suit property. (viii) That after decision of Civil Suit No. 14/1993 of adverse possession, the defendant appeared as witness from the side of Niki Devi in Civil Suit No. 205/1992, in which he has admitted Niki Devi as owner in possession of the suit property as such judgment and decree in Civil suit No. 14/93 apparently appeared to be procured by practising fraud and forgery on the part of the defendant.” 6. Para 7(A) of the written statement reads as under: “7(A) The particulars, a detailed in this para are totally wrong and denied and sub-para wise reply is stated herein below: - (i) This sub-para is admitted only to the extent that Nikki Devi was illiterate and was from the village. (ii) This sub-para is wrong and denied. (iii) This sub-para, in so far as the first portion is concerned, is a matter of record, which will spak for itself and anything to the contrary is denied, however, it is totally wrong and denied that your defendant has procured the thumb marks, as alleged or that any fraud was practised, as alleged. (iv) This sub-para is wrong and denied. (v) This sub-para is also wrong and denied. (vi) This sub-para is again wrong and denied. (vii) This sub-para is based upon inferences, as such same is denied. (viii) This sub-para relates to the contents of the record, however, it is totally wrong that any fraud was ever practised.” 7. Mr. G.D. Verma, learned Senior Advocate, has supported the judgments and decrees of the learned Courts below. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. Plaintiff appeared as PW-1. According to him, he has handed over the copy of the Will to the defendant. Mr. G.D. Verma, learned Senior Advocate, has supported the judgments and decrees of the learned Courts below. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. Plaintiff appeared as PW-1. According to him, he has handed over the copy of the Will to the defendant. According to the Will, he and his brother are owners of the suit property. However, report of this Will was not made to the Patwari. According to him, at the time of execution of Will, his maternal uncle Bangali Ram, Mahant Ram Chaudhary, Advocate and Hutashan were present. He has admitted that he was residing at Shimla since 1972. 10. PW-2 Bangali Ram testified that on 30.6.1975, Niki Devi executed a Will in favour of the plaintiff and the defendant. He along with Niki Devi and parties to the suit and one Tulsi Ram went to Mandi town. They met Advocate Mahant Ram. He has proved Will Ext. PW-2/A. It was scribed at the instance of Niki Devi. Shri Hutashan Sharma was one of the witnesses of the Will. Niki Devi affixed her thumb mark on the Will and thereafter they put their signatures. He identified his signatures on Ext. PW-2/A in red circle ‘D’ and signatures of Hutashan in red circle ‘E’. Thereafter, they went to Tehsildar. Will was read over to Niki Devi. She after finding the contents true, affixed her thumb mark/impression on the Will. Nobody has unduly forced Niki Devi to execute the Will. 11. PW-3 Phate Singh deposed that the plaintiff and defendant were given suit land by way of Will by Niki Devi. 12. PW-4 Mahant Ram Chaudhary testified that on 30.6.1975, Niki Devi along with Bangali Ram came to him. She wanted to give her property in Will to the plaintiff and defendant. They went to the document writer, where the Will was scribed. Niki Devi put her thumb mark after considering the contents of the Will to be true and they put their signatures. Niki Dvi was taken to Tehsildar where she was identified by him and after considering the contents of Will to be true, Niki Devi put her thumb mark. 13. PW-5 Achhari Dutt proved Ext. PW-5/A, statement made by Niki Devi in Case No. 10/95. 14. PW-8 Mani Ram, Senior Assistant, DC Office Mandi, has proved Ext. PW-8/!, Ext. PW-8/C, Ext. PA and Ext. PB. 13. PW-5 Achhari Dutt proved Ext. PW-5/A, statement made by Niki Devi in Case No. 10/95. 14. PW-8 Mani Ram, Senior Assistant, DC Office Mandi, has proved Ext. PW-8/!, Ext. PW-8/C, Ext. PA and Ext. PB. 15. PW-9 D.S. Thakur, Advocate deposed that he was the advocate of Niki Devi in Civil Suit No. 205/92 titled as Niki Devi vs. Collector. He had drafted the plaint as per the instructions of Niki Devi. The Special Power of Attorney attached to the plaint was not drafted by him. 16. PW-10 Bimla Devi has brought the requisite record in Civil Suit titled Niki Devi vs. Collector. 17. PW-11 Het Ram, Bar Clerk, deposed that he was working as a Bar Clerk with Mr. D.S. Thakur, Advocate. He was advocate of Niki Devi in case titled Niki Devi vs. Collector. He further deposed that Himat Ram (defendant) used to attend the hearing of the case on behalf of Niki Devi and Niki Devi had given the power of attorney to him. In his presence, Niki Devi executed Special Power of Attorney in favour of the defendant. He appeared as a witness. 18. Defendant appeared as DW-3. He deposed that he might have given statement on behalf of Niki Devi and case was decided no 7.6.1997 in Civil Suit No. 205/1992. He was declared owner-in-possession of the suit land by way of adverse possession on 31.5.1993. 19. DW-4 Indira Devi brought the record of Case No. 14/93 titled Himat Ram vs. Niki Devi, decided on 31.5.1993. 20. DW-5 Rakesh Kumar deposed that he was advocate of Niki Devi in case No. 14/93. Statement dated 31.5.1993 was filed by him on behalf of Niki Devi vide Ext. PW-5/A. According to him, Himat Ram was the plaintiff. 21. DW-6 Daya Ram, deposed that he has not seen anyone except the defendant residing in the house. 22. DW-7 Nikka Ram deposed that earlier the suit land was cultivated by Niki Devi and after her death, it was cultivated by the defendant. 23. It has come on record that the proceedings were initiated against Niki Devi under Section 163 of the HP Land Revenue Act. She filed reply vide Ext. PW-8/A. Order was passed by the Assistant Collector on 28.3.1995. 24. Defendant has instituted suit bearing No. 14/93 against Niki Devi. According to the averments made in the plaint, Khewat and Khatauni No. 83/125 Khasra Nos. She filed reply vide Ext. PW-8/A. Order was passed by the Assistant Collector on 28.3.1995. 24. Defendant has instituted suit bearing No. 14/93 against Niki Devi. According to the averments made in the plaint, Khewat and Khatauni No. 83/125 Khasra Nos. 625/33, 41, 42 and 43 Kita 4 measuring 6-19-13 Bigha situate at Mauza Dhangu, Hadbast No. 223 Illaqa Balh, Tehsil Sadar, District Mandi, HP was recorded in possession of the defendant as per copy of Jamabandi for the year 1989-90. However, since November 1979, plaintiff was coming in adverse possession of the suit land. Entry showing defendant as owner-in-possession was wrong, null and void. Possession of the plaintiff over the suit land was open, continuous, hostile, peaceful and to the knowledge of the its true owner and general public. Defendant was asked time and again to admit the claim in suit land. However, he refused to do so. Plaintiff prayed that he be declared as owner-in-possession of the suit land by way of adverse possession and decree may be passed in his favour. Niki Devi filed written statement admitting the claim of the defendant (Himat Ram). Civil Suit No. 14/93 was decreed by the learned Senior Sub Judge on 31.5.1993 in view of the admission made by Niki Devi. Himat Ram (plaintiff in Civil Suit No. 14/93) was declared to have become owner of the land by way of adverse possession. Decree sheet is Ext. PH. Niki Devi filed suit for permanent prohibitory and mandatory injunction against Collector and others bearing Civil Suit No. 205/1992. According to the averments made in the plaint, land in Khewat Khatuni No. 83 min/125 min Khasra No. 33 measuring 11-15-2 Bigha situate in Mauza Dhangu/223, Illaqa Balh, District Mandi, HP was recorded in her ownership and possession Suit was contested by the defendants. Suit was decreed by the leaned Senior Sub Judge on 7.6.1997. Defendants were restrained by way of decree of permanent prohibitory injunction from interfering in the possession of Niki Devi over the suit land measuring 5-12-18 Bigha comprised in Khasra No.33/2 situate in Muaza Dhangu/223, Illaqa Balh, District Mandi. 25. Himat Ram appeared as PW-9 in Civil Suit No. 205/1992 being attorney of Niki Devi. According to him, plaintiff was owner-in-possession of the land measuring 11-15-2 Bigha. Plaintiff (Himat Ram) filed Civil Suit No. 14/93 against Niki Devi basing his title on adverse possession. 25. Himat Ram appeared as PW-9 in Civil Suit No. 205/1992 being attorney of Niki Devi. According to him, plaintiff was owner-in-possession of the land measuring 11-15-2 Bigha. Plaintiff (Himat Ram) filed Civil Suit No. 14/93 against Niki Devi basing his title on adverse possession. Niki Devi has filed written statement and claim of the plaintiff was admitted. Suit was decreed on 31.5.1993. Niki Devi has filed civil suit No. 205/1992 against the Collector and others. Defendant has appeared as PW-1. Suit was decreed on 7.6.1997. Defendant while appearing as PW-1 has admitted categorically that the plaintiff Niki Devi was in possession of the suit property. If Niki Devi was owner-in-possession of the suit property, how he could claim adverse possession over the same from 1979 in Civil Suit No. 14/93. There is merit in the contention of Mr. Bhupender Gupta, learned Senior Advocate that the decree dated 31.5.1993 was outcome of fraud since plaintiff has wrongly claimed himself to be in adverse possession and got written statement filed by Niki Devi admitting his entire claim. It is reiterated that since he himself has admitted while appearing as a witness in Civil Suit No. 205/1992 that Niki Devi was in possession of the suit land, he could not claim adverse possession in Civil Suit No. 14/93. Plea of adverse possession is to be used as a shield and not as a sword. 26. Plaintiff has conclusively proved that decree dated 31.5.1993 rendered in civil suit No. 14/93 was outcome of fraud. In his cross-examination, DW-3 (defendant) has admitted that he used to attend hearing of case in civil suit No. 205/1992 and he might have given statement on behalf of Niki Devi. Special Power of Attorney was executed by Niki Devi in favour of the defendant vide Ext. PW-11/A on 15.11.1993. PW-12 Mani Ram had deposed that Ext. PW-11/A was true record of original Special Power of Attorney. Copy was prepared by him in the copying agency. It was entered at Sr. No. 404 on 15.11.1993. PW-11 Het Ram has also deposed that the defendant used to attend the hearing of the case on behalf of Niki Devi. Niki Devi has given Power of Attorney to Himat Ram in his presence. Niki Devi executed Special Power of Attorney in favour of Himat Ram. He appeared as a witness in the case. Niki Devi affixed her thumb mark/impression in his presence. Niki Devi has given Power of Attorney to Himat Ram in his presence. Niki Devi executed Special Power of Attorney in favour of Himat Ram. He appeared as a witness in the case. Niki Devi affixed her thumb mark/impression in his presence. She was identified by T.R. Jamwal and R.K. Dhiman. 27. The Will was executed by Niki Devi on 30.6.1975 vide Ext. PW-2/A. PW-2 Bangali Ram was one of the marginal witnesses. According to him, Will was scribed as per the instructions of Niki Devi. Shri Hutashan Sharma was one of the witnesses. Niki Devi has affixed her thumb mark on the Will in their presence and after that, they have put their signatures. He identified his signatures in red circle ‘D’ and signatures of Hutashan Sharma in red circle ‘E’. Thereafter, they went to the Tehsildar. Will was read over to Niki Devi. She, after considering the contents to be true, affixed her thumb impression/mark on the Will. 28. PW-4 Mahant Ram Chaudhary testified that on 30.6.1975, Niki Devi came to him along with Bangali Ram. She wanted to give her property in Will to the plaintiff and the defendant. They went to the document writer. Will was scribed and after considering the contents to be true, Niki Devi affixed her thumb mark. She was then taken to the Tehsildar. She was identified by him. After considering the contents of will to be true, she put her thumb mark. Thus, the plaintiff has duly proved execution of Will Ext. PW-2/A dated 30.6.1975. 29. Their Lordships of the Hon'ble Apex Court in Gurdwara Sahib v. Gram Panchayat Village Sirthala reported in (2014) 1 SCC 669 , have held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Their Lordships have held as under: “8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.” 30. Substantial question of law is answered accordingly. 31. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.” 30. Substantial question of law is answered accordingly. 31. Accordingly, in view of the discussions and analysis made hereinabove, the present appeal is allowed. Judgment and decree dated 8.6.2010 rendered by the learned District Judge, Mandi, District Mandi, Himachal Pradesh in Civil Appeal no. 64/2008 and judgment and decree dated 12.6.2008 rendered by the learned Civil Judge (Junior Division) Court No.3, Mandi, District Mandi, HP in Civil Suit No. 179 of 2000, are set aside. The suit of the plaintiff is decreed. Judgment and decree rendered in Civil Suit No. 14/93 dated 31.5.1993 is declared null and void. Mutation No. 357 as well as other revenue entries showing defendant owner-in-possession of the suit property are also declared null and void. Plaintiff is declared owner-in-possession of the suit property to the extent of ½ share along with defendant on the basis of Will dated 30.6.1975. 32. Parties were directed to maintain status quo as regards the nature and possession of the suit property and not to create third party interests, vide order dated 15.9.2010 in CMP No. 826/2010. However, despite the orders passed by this Court, respondent entered the suit property on 27.9.2010 and thereafter on 9.10.2010. Plaintiff filed CMP No. 362/2011. Issues were framed on 8.7.2011. Plaintiff also filed CMP No. 1131/2011 for placing on record subsequent developments. These applications were allowed by this Court no 25.6.2014. Deputy Commissioner, Mandi was directed to attach the property of the respondent-defendant within a period of one week and defendant was directed to demolish the fresh/new construction raised by him, during the interim orders passed by this Court, within a period of three weeks, failing which he was ordered to be detained in civil imprisonment, at the first instance, for a period of one month. 33. Accordingly, the directions passed on 25.6.2014 are reiterated and defendant is directed to demolish the construction raised by him during the pendency of the appeal. In case, same is not demolished, Deputy Commissioner, Mandi shall attach the property of the defendant and defendant would also be detained in civil imprisonment, in accordance with law. 34. Pending applications, if any, also stand disposed of. No costs.