JUDGMENT : Chander Bhusan Barowalia, J. By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned District Judge, Kangra at Dharamshala, (H.P), in Civil Appeal No.14-I/XIII/2005, dated 01.04.2006, vide which, the learned lower Appellate Court, has set aside the judgment and decree passed by the learned Civil Judge (Junior Division), Indora, District Kangra, in Civil Suit No.RBT No.50/98/04, Old No.110/1998, dated 30.11.2004. 2. Material facts, necessary for adjudication of this Regular Second Appeal, are that respondent/plaintiff (hereinafter referred to as ‘plaintiff’) maintained a suit for possession against the appellants/defendants (hereinafter referred to as ‘defendants’) alleging that plaintiff is owner-in-possession of land till November 1986, comprised in Khata No.35 min, Khatauni No.94, Khasra No.307 and 308, measuring 0-01-15 hectares, situated in Mohal and Mauza Pind Padhian, Tehsil Indora, District Kangra, (H.P) (hereinafter referred to as ‘suit land’). As per the plaintiff, she was in possession of the suit land, as owner and she was taking all the benefits therefrom, but the defendant, during settlement operation on February 12, 1985 got himself recorded as ‘Kabij’ of the suit land in collusion with the Settlement Officials and took possession in the month of November, 1986, illegally and unauthorisedly without consent of the plaintiff. The possession of the defendant over the suit land is illegal, unauthorized and that of a trespasser. Moreover, the defendant has raised temporary construction of structure over the suit land illegally and unauthorisedly. It is averred that the defendant has been asked several times to admit the claim of plaintiff and handover the illegal and unauthorized possession of the suit land, so encroached upon by him, but all in vain. 3. Defendant, Murad Ali, resisted and contested the suit by raising preliminary objections qua maintainability, estoppel, locus standi, cause of action, valuation and pleaded that the defendant has become owner of the suit land being tenant. On merits, it is pleaded that forefathers of the replying defendant were tenant and after the death of father, defendant was tenant and after the death of defendant, his legal representatives have become owner-in-possession of the suit land, in view of the H.P. Tenancy and Land Reforms Act. The plaintiff never remained in possession over the suit land, as is evident from the record of rights and defendants also constructed their residential house over the suit land and they are paying ‘Chulah’ tax regularly. The plaintiff never remained in possession over the suit land, as is evident from the record of rights and defendants also constructed their residential house over the suit land and they are paying ‘Chulah’ tax regularly. The defendants have also installed an electricity meter in their house and a period of more than 40 years has elapsed. During settlement, defendants were wrongly recorded as ‘Kabij’. It is further pleaded that in case, defendants have failed to prove their tenancy, then his possession is open, peaceful, hostile and continuous and well within the knowledge of plaintiff and the same has been ripened into ownership by way of adverse possession. 4. The plaintiff filed replication to the written statement of the defendants, wherein, she denied the contents of written statement and reaffirmed and reasserted the averments, as made in the plaint. 5. From the pleadings of parties, the learned trial Court framed following issues: “1. Whether the plaintiff is entitled for relief of possession of the suit land by way of demolition of structure, as alleged ? OPP. 2. Whether the defendant has become owner of the suit land by way of adverse possession ? OPD. 3. In alternative, whether the defendant was ‘Gair Marusi Tenant’ over the suit land and now he has become owner by the provision of H.P. Tenancy and Land Reforms Act.? OPD. 4. Whether the plaintiff is estopped by her act and conduct to file the present suit? OPD. 5. Relief.” 6. The learned trial Court after deciding Issue No.1 in negative, Issue No.2 in affirmative, Issue No.3 not pressed, Issue No.4 in affirmative, dismissed the suit. 7. Feeling aggrieved thereby the plaintiff maintained first appeal before the learned District Judge, Kangra at Dharamshala, (H.P), assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court set aside the findings of the learned Court below and decreed the suit. The appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 14.7.2006 on the following substantial questions of law: “1. Whether the appellants/defendants have not become owner by way of adverse possession since their possession is continuous, peaceful, uninterrupted and hostile to the knowledge of plaintiff since a residential house was constructed 40 years back ? 2. Whether the appellants/defendants have not become owner by way of adverse possession since their possession is continuous, peaceful, uninterrupted and hostile to the knowledge of plaintiff since a residential house was constructed 40 years back ? 2. Whether the defendants were not tenants over the suit land and had become owner by operation of law thereafter in view of oral evidence and jamabandies on record which carry presumption of truth, whereby the defendants are recorded tenants consistently since long? 3. Whether the plaintiff can be granted relief of possession by demolition without proving dispossession of suit land ? 4. Whether the counsel had authority to legally leave the plea of tenancy ? 5. Whether the findings of learned District Judge whereby it is held that the plea of adverse possession and tenancy can not be taken together are legally sustainable ? 6. Whether the adverse inference was not be drawn against plaintiff for not entering into witness box where her title and possession was in dispute ? 8. Learned counsel appearing on behalf of the appellants has argued that the learned lower Appellate Court, without appreciating the fact that the tenancy from the time immemorial was in favour of the appellants and the fact that the electricity meter was in the name of appellants and ‘Chuhla’ tax was being paid, passed the impugned judgment and decree so, the same is required to be set aside. She has further argued that the learned lower Court was required to decide all the issues and without deciding all the issues, the judgment has been pronounced, which is against the law. 9. On the other hand, learned counsel appearing on behalf of respondent has strenuously argued that the judgment and decree, passed by the learned lower Appellate Court, is just reasoned and after appreciating the evidence, which has come on record to its true perspective, so needs no interference. He has further argued that the learned lower Appellate Court has considered each and every material before it including the fact that the learned counsel for the appellant in the learned Court below, vide his statement not pressed the right of tenancy, so the judgment and decree passed by the learned lower Appellate Court is required to be upheld. 10. He has further argued that the learned lower Appellate Court has considered each and every material before it including the fact that the learned counsel for the appellant in the learned Court below, vide his statement not pressed the right of tenancy, so the judgment and decree passed by the learned lower Appellate Court is required to be upheld. 10. In rebuttal, learned counsel appearing on behalf of the appellants has argued that there is nothing on record to show that the appellants ever authorized Advocate to make a statement with regard to leaving the plea of tenancy, when there was a specific issue and evidence led, the learned Court below should have considered and decided all the issues in view of the fact that the entries of tenancy were in favour of the defendants from the time of forefathers. 11. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 12. In order to prove its case, PW-1, Kamal Nain, General Power of Attorney of the plaintiff, deposed that land in dispute is 5-6 marlas and he is owner-in-possession of the suit land and it is in their possession from the very beginning. They remained in its possession till November, 1986. The land in dispute was never given for cultivation to anyone nor to the defendant. He has deposed that during settlement, the defendant got himself recorded as in possession. The land in dispute is lying vacant, but on one side, a hut has been raised. The entry in favour of Murad Ali, in the revenue record is absolutely wrong. Murad Ali, never remained in possession and his possession is unauthorized. In his cross-examination, he has denied that he had purchased the land after coming from outside. He has shown his ignorance that when, he had purchased the land, at that time, Mahi etc. were recorded as ‘Gair Marausi tenants’ on the land in dispute and after the death of Mahi, Murad Ali, stepped into his shoes, being his son. He has also denied that on the land in dispute, there is house of the defendant, on the land in dispute. He has stated that they came to know, after the settlement operation, regarding entry of the possession in favour of the defendant, but they did not raise any objection before the Settlement staff. He has also denied that on the land in dispute, there is house of the defendant, on the land in dispute. He has stated that they came to know, after the settlement operation, regarding entry of the possession in favour of the defendant, but they did not raise any objection before the Settlement staff. It is admitted that they purchased the land from Smt. Rattani Devi of village Pind Padhian, but denied that they could not get the possession after its purchase. He has stated that the defendant took possession in November, 1986, they did not make any complaint before the Panchayat or to the police. He has denied that they have given land to the defendant on payment of ‘Galla-Batai’. DW-1, Salamat Bibi, deposed that her husband Murad Ali, was owner of the land in dispute, who died during the pendency of suit and defendants are his legal representatives. The land in dispute is 7 marlas and it is their residential house, which is 40-50 years old. The land in dispute was taken by father-in-law from Smt. Rattani Devi, for raising a house. They were living in the house of Rattani Devi, doing her work and paying ‘Galla-Batai’ to her. The name of the plaintiff had wrongly been recorded in the column of ownership. The plaintiff has no right, title or interest over the suit land. They are paying ‘Chulah’ tax of the house for a quite long time. In her cross-examination, she has admitted that Tripta Devi (plaintiff) is owner of the land in dispute, but denied that she was in possession of the same till the year 1986. She has denied that she was not paying rent to Tripta Devi and Smt. Rattani Devi. She has also denied that they are not in possession of the land in dispute. DW-2, Kishori Lal, deposed that he has seen the land in dispute, on which, there is a house of Murad Ali and he is seeing that house for the last more than 20-25 years. His house is located just near the land in dispute. According to him, defendants are owners of the land in dispute. He has denied that defendants took the possession in November, 1986. He has admitted that Smt. Rattani Devi, was owner of the land in dispute earlier. 13. His house is located just near the land in dispute. According to him, defendants are owners of the land in dispute. He has denied that defendants took the possession in November, 1986. He has admitted that Smt. Rattani Devi, was owner of the land in dispute earlier. 13. From the perusal of record, which shows that plaintiff was represented by General Power of Attorney (Kamal Nain, PW-1) who has appeared on behalf of the plaintiff, in these circumstances, the facts are not in the exclusive knowledge of the General Power of Attorney and so, the defendant has remained unable to cross-examine the plaintiff on material aspect. At the same point of time, it has come on record that the property was purchased by the plaintiff from the earlier owner, who was not examined by the plaintiff. In this background, the case is required to be understood and gone through. Ex. D-1, Jamabandi, for the year 1970-71, shows that Ratani Devi, predecessor-in-interest of the plaintiff was recorded, as owner, and father of defendant Mahi, recorded as ‘Gair Marausi’ tenant and rent was ‘Babja abadi’ i.e. because of ‘abadi, the word recorded as ‘Bila Lagan Babja Abadi’. Now, what is the rent paid in this case i.e. rent for ‘Gair Maurusi’, is required to be taken into consideration to understand the word ‘Gair Maurusi Bila Lagan Babja Abadi’. 14. Now, what is the rent paid in this case i.e. rent for ‘Gair Maurusi’, is required to be taken into consideration to understand the word ‘Gair Maurusi Bila Lagan Babja Abadi’. 14. The land was ‘Gair Marausi tenancy Babja Abadi’ and the following points are undisputed : (a) that the suit land is 07 marlas only; (b) that the defendants are residing in this land from the time of their forefathers; (c) that the entries in the revenue record since long is ‘Gair Marausi Bila Lagan Babja Abadi’, meaning thereby that the land is under non occupancy tenancy rent paid is reason of ‘abadi’ of the defendant; (d) that as per General Power of Attorney of the plaintiff, defendant took possession in November, 1986 of this land, but no complaint to the Panchayat or Police was made nor any objection was made by the Settlement Officer, meaning thereby it is a false plea raised by the plaintiff; (e) that the admission of General Power of Attorney of the plaintiff, land was purchased from Ratani Devi, who was not produced in the witness box neither the original owner appeared in the witness box; (f) that the earlier residential hut-house of the defendant is on the suit land, which is recorded in their non occupancy tenancy from their forefathers i.e. time immemorial; (g) that the land owners were big landlord from whom the plaintiff has purchased the land. 15. From this, it appears that ancestors of the defendant and thereafter father of the defendant were doing odd works for the landlord. This odd work including the domestic help is rent, which nomenclature as ‘Babja abadi’. Again, the land in possession of the defendant is ‘Gair Marausi Babja Abadi’, is only 07 marlas from time immemorial. So, in these circumstances, the only inference can be drawn the word ‘Gair Marausi Babja Abadi’ that the land is under the non occupancy tenancy of the defendant for consideration because of their being residing at the place. The rent in these circumstances is clear i.e. domestic services, services at some occasion, services in the form of domestic help. The word ‘Gair Marausi’ is tenant at-will, ‘Bila Lagan’ means without payment any rent ‘Babja Abadi’ rent because of the inhabitation. The rent in these circumstances is clear i.e. domestic services, services at some occasion, services in the form of domestic help. The word ‘Gair Marausi’ is tenant at-will, ‘Bila Lagan’ means without payment any rent ‘Babja Abadi’ rent because of the inhabitation. This word because of inhabitation ‘Babja Abadi’ signify that the services provided to the landlord being residing alongwith the tenant, which are in the nature of (a) services during the special occasions i.e. birth, family function, death and performing of last rites; (b) services by way of domestic help to the landlord; (c) services in the form of security to the landlord during odd hours being residing with the landlord; (d) services to the landlord in the form of domestic help as and when occasion arises because of being residing near the land. So, this is the rent because of ‘Abadi’, so the non occupancy tenancy because of ‘Abadi’ is itself rent and it is rightly record as tenancy in the revenue records. So, after taking into consideration, the above mentioned facts, this Court defines the word ‘Gair Marausi Bila Lagan Babja Abadi’, as the tenancy for the rent, which is in the shape of services, as enumerated as under : (a) services during the special occasions i.e. birth, family function, death and performing of last rites; (b) services by way of domestic help to the landlord; (c) services in the form of security to the landlord during odd hours being residing with the landlord; (d) services to the landlord in the form of domestic help as and when occasion arises because of being residing near the land. So, the entry in the revenue record ‘Gair Marausi Bila Lagan Babja Abadi’ means tenancy. In these circumstances, the services as provided hereinabove, is a tenancy under the H.P. Land Revenue Act, when, it is a tenancy, the defendant has become owner of the suit land, after coming into operation of H.P. Tenancy and Land Reforms Act, on the suit land, which is 07 marlas, in possession of the defendant, as their ‘abadi’ recorded in the revenue entry as ‘Gair Marausi Bila Lagan Babja Abadi’ and the plaintiff has nothing to do with this land. 16. I have considered the arguments of the learned counsel appearing on behalf of the defendant that the learned Court below was required to decide all the issues, including the issue with regard to tenancy. 16. I have considered the arguments of the learned counsel appearing on behalf of the defendant that the learned Court below was required to decide all the issues, including the issue with regard to tenancy. As the case is pending for the last more than 17 years, it will not be appropriate to remand the case back to the learned Trial Court for deciding this issue and then to the learned lower Appellate Court to appreciate the fact that this Court think that it will be appropriate to consider the issue in the appeal only. This Court finds that the learned counsel for the defendant was never instructed to leave the plea of tenancy and his statement also does not show that he is making statement to leave the plea of tenancy under instructions from the defendant, so this issue is required to be decided, on the basis of material evidence led on record. Now, this is the only ‘abadi’ with the defendants, which is in their ‘Gair Maurusi’ and rent in the present case is discussed hereinabove. When this ‘Gair Marausi tenancy’ is there, the right of ownership has come to the defendants by coming into force of the H.P. Tenancy and Land Reforms Act. This fact is known to the original owner, but the present plaintiff has purchased this land knowing fully well this fact. Ex.D-1, jamabandi for the year 1970-71, shows that Ratani Devi, predecessor-in-interest of defendant was recorded as owner and father of the defendant Mahi, is recorded as ‘Gair Marausi’. It is admitted fact that the plaintiff has not stepped into the witness box to plead her case. It is also not disputed that the plaintiff has not led any evidence to rebut the evidence of defendant. The plaintiff while appearing in the witness box as PW-1, deposed that the defendant forcibly dispossessed the plaintiff in November, 1986, but this fact is falsified by the revenue record. Ex.P-5, jamabandi, for the year 1975-76, which shows that suit land, is owned by Ratani Devi and Shiv Dutta, possessed by Murad Ali as ‘Gair Marausi’ Bila Lagan Babja Abadi’. In his cross-examination, he has categorically admitted that in November, 1986, he never reported the matter to the police or Gram Panchayat that he was forcibly dispossessed. Ex.P-5, jamabandi, for the year 1975-76, which shows that suit land, is owned by Ratani Devi and Shiv Dutta, possessed by Murad Ali as ‘Gair Marausi’ Bila Lagan Babja Abadi’. In his cross-examination, he has categorically admitted that in November, 1986, he never reported the matter to the police or Gram Panchayat that he was forcibly dispossessed. On the other hand, DW-1 Salamat Bibi, deposed that their house is existing over the suit land and it was raised by her father-in-law Mahi. She further deposed that her father-in-law used to work in the house of Ratani Devi and suit land was given by Ratani Devi to raise construction. She further deposed that plaintiff has nothing to do with the suit land and defendants are paying ‘Chulah’ tax to the Gram Panchayat. DW-2 Kishori Lal, has also supported the version of DW-1. He deposed that the house of defendant is standing over the suit land and it was constructed by Mahi, during his life time. In his cross-examination, he has denied that plaintiff was forcibly dispossessed in November, 1986. Moreover, the plaintiff has not led any evidence to prove the construction of house over the suit land in the year 1986. It has also come on record that the defendants are residing in the suit land from the time immemorial. There is nothing come on record to show that the defendants have in their house in the vicinity. There is also nothing come on record that the defendants were not residing in the premises from the time immemorial. The defendants were paying ‘Chuhla’ tax and electricity meter in the name of defendants from the last so many years existing for the last 40 years. Judicial notice of the fact that the electricity in the area has come for the last 40-50 years and to conclude that house/hut was existing much before that. 17. Now, coming to question of tenancy, first of all the statement of defendant, she has stated that they were living in the house of Ratani Devi, doing her work and paying ‘Gala Batai’ is required to be understood with the word ‘Bila Lagan Babja Abadi’. 17. Now, coming to question of tenancy, first of all the statement of defendant, she has stated that they were living in the house of Ratani Devi, doing her work and paying ‘Gala Batai’ is required to be understood with the word ‘Bila Lagan Babja Abadi’. Now, the entry in favour of the defendant as ‘Gair Maurusi tenant’ ‘Bila Lagan Babja Abadi’ has the main following four ingredients: (i) that the land was given to the defendant as tenancy by Ratani Devi and her ancestors to the defendant and earlier to her forefathers on rent and the revenue entry has come ‘Gair Maurusi tenant Babja Abadi’’ (ii) that the rent to be paid was the services in the house of owners by the tenant that is why ‘Babja Abadi’ word has come for the rent; (iii) that the statement of DW-1 Salamat Bibi, they were doing the services in the house of Ratani Devi and owners are not rebutted by the plaintiff. The learned Trial Court seems to be in grave error while considering this fact and the plea taken by the learned counsel for the defendant to understand that as suit of the plaintiff is required to be dismissed because of adverse possession, he may leave the plea of tenancy. However, the tenancy is not pressed by the learned counsel for the defendant, when being imparted instructions by the defendant, as there is nothing come on record to show that the defendant imparted instructions to the learned counsel for the defendant or he was present in the Court, as neither his signatures are there on the statement nor such a statement recorded by the learned Trial Court. In these circumstances, this Court felt it imperative and in the interest of justice to consider this plea of tenancy and adjudicate it in the Regular Second Appeal to meet the ends of justice. So, this Court holds that the findings of learned Trial Court that it was the adverse possession, which can be taken into consideration that it was the only adverse possession. So, this Court holds that the findings of learned Trial Court that it was the adverse possession, which can be taken into consideration that it was the only adverse possession. This Court has also gone through the above mentioned facts and concludes that it was the possession of the defendant, which was there, as the possession was recorded in the revenue entries and it was denied by the plaintiff, in case, the appellant fails in his case to prove the tenancy definitely the possession was ignored and adverse possession was open, hostile, long and from the time immemorial to the knowledge of the owners peacefully throughout. These facts all goes to show that suit of the plaintiff is without any basis. So, substantial question of law No.1, is decided accordingly holding that the findings recorded by the learned lower Appellate Court and the learned Trial Court holding that the defendants were not tenant over the suit land and the findings are perverse. Substantial question of law No.2, is answered accordingly holding that the findings of the learned Court below are perverse without appreciating the facts, which have come on record to its true perspective. Substantial question of law No.3, is answered accordingly holding that the findings of learned lower Appellate Court granted the relief of possession by demolition are totally perverse and without understanding and interpreted the documents to its right perspective and without appreciating the pleadings correctly. Substantial question of law No.4, is decided accordingly holding the plea of tenancy, which is pleaded and proved was required to be adjudicated by the learned Courts below, as per the provision of Order 20 Rule 5 of the Code of Civil Procedure. The learned lower Appellate Court has committed illegality under Order 20 Rules 4 and 5 of the Code of Civil Procedure, in not deciding this issue, when it was specifically framed and proved by the defendants in their favour. The findings of learned lower Appellate Court are perverse, as the learned lower Appellate Court has not applied its mind, which has come on record and the findings are recorded in a cursory manner and without application of mind, so substantial question of law No.5, is also answered accordingly. The findings of learned lower Appellate Court are perverse, as the learned lower Appellate Court has not applied its mind, which has come on record and the findings are recorded in a cursory manner and without application of mind, so substantial question of law No.5, is also answered accordingly. The learned Court below has also committed illegality in not drawing the adverse interference against the plaintiff, when she has not appeared in the witness box nor a person from whom she has purchased the land was examined to prove the factum, as pleaded by the plaintiff, as the defendants have no chance to cross-examine the person having knowledge with regard to the facts. Accordingly, the findings recorded by the learned lower Appellate Court are perverse, so substantial question of law No.6, is answered accordingly. 18. In view of the aforesaid discussion, the appeal of the appellants-defendants is allowed and suit of the plaintiff is dismissed. However, taking into consideration the over all inconvenience caused to the defendants throughout for the last more than 17 years i.e. earlier to the defendant, thereafter, his widow, due to the uncalled litigation initiated against them by the plaintiff, the appeal is allowed with costs, which is quantified, as Rs.5,000/-, to be paid by the plaintiff to the defendants. The venture into uncalled litigation just to make undue advantage knowing fully well that the defendant has become owner of the suit land, after coming into operation of H.P. Tenancy and Land Reforms Act, even before, he purchased the land from the earlier owner, as the Act came into force before 1977, when he purchased the land and put the defendant in harassment by uncalled litigation. 19. With the aforesaid observations, the appeal, so also the pending applications, if any, shall also stands disposed of.