SECOND APPEAL 433 of 2004 on 1 May 1982

1. Whether the plaintiffs have been become owners by way of adverse possession? OPP way of adverse possession? OPP

2. Whether the suit is not maintainable in the present form? OPD. form? OPD.

3. Whether the suit is not within limitation? OPD

4. Whether a valid notice under Section 80 CPC was served upon the defendants? OD. served upon the defendants? OD.

5. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? the purpose of Court fee and jurisdiction?

6. Relief.

The parties were called upon to produce the evidence and plaintiff no. 1 examined himself (PW-1), Nihal Singh (PW-2), Ram Singh (PW-3), Manmohan Singh (PW-4) and Manohar Lal Sharma (PW-5). Defendants examined Krishan Chand (DW-1) and Kesar Singh (DW-2).

11. The learned Assistant Collector 1[st] Grade, held that there is a distinction between long possession and adverse possession. The plaintiffs did not prove the date on which their possession became hostile to the knowledge of the defendants. Plaintiff Jiwan Singh, could not tell the Khasra number of the suit land or the date of commencement of adverse possession. The

statement of Manohar Lal shows that the age of the plants was not more than 15 years in the year 1985, the date on which the adverse possession was to be determined and the plea of the plaintiffs regarding adverse possession was not proved. Hence, the learned Trial Court answered issues no. 2 and 4 in the affirmative, the rest of the issues in negative and dismissed the suit of the plaintiffs. 12. Being aggrieved from the judgment and decree passed by the learned Trial Court, an appeal was filed, which was decided by the learned District Judge, Mandi. The learned First Appellate Court concurred with the findings of the learned Trial Court and held that the plaintiffs had failed to prove their adverse possession. Nihal Singh (PW-2) and Ram Singh (PW-3) could not disclose the exact date of commencement of possession. Statement of Manohar Lal (PW-5), also did not establish the possession for the requisite period. The criminal complaint mentioned the possession for 4-5 years. The statutory period of 30 years was not completed on the date of initiation of the ejectment proceedings. The State was recorded owner in the suit land in the Jamabandi for the year 1982-83, whichcarries with it a presumption of correctness. The names of the plaintiffs were also not recorded during the settlement. Hence, the appeal was dismissed.

13. Feeling aggrieved and dissatisfied with the judgment and decrees passed by the learned First Appellate Court, the present appeal has been filed, asserting that the learned Courts below erred in not properly appreciating the evidence led before them. The possession of Prem Singh and after him of the plaintiffs was open, peaceful, continuous and hostile to the knowledge and complete ouster of the State of H.P. It was proved on record that the trees were planted on the suit land and some of these trees were more than 60 years old. The witnesses of the plaintiffs supported their version; however, the learned Courts below wrongly rejected their testimonies. Learned Judicial Magistrate 1[st] Class, Mandi, also noticed that a complaint was filed 4-5 years after the encroachment. The learned First Appellate Court erred in relying upon the revenue entries to negate the claim of the plaintiffs.Therefore, it was prayed that the present appeal be allowed, and the judgments and decrees passed by the learned Courts below be set aside.

14. The appeal was admitted on the following substantial question of law framed on 29.04.2010:-

15. Whether the findings of the Court below are a result of complete misreading, misinterpretation of the evidence and material on record and against the settled position of law?

I have heard Mr. Ashwani Sharma, learned Senior Advocate assisted by Ms. Nisha Nalot, Advocate for the appellants and Mr. R.P. Singh learned Deputy Advocate General for the respondent-State.

16. Mr. Ashwani Sharma, learned Senior Counsel appearing on behalf of appellants/plaintiffs submitted that the learned Courts below erred in rejecting the claim of the plaintiffs. It was duly proved that the trees were planted on the suit land and the Forest Department was not in possession. The possession of the plaintiffs and before them, their predecessor in interest was open without any attempt of concealment. Hence, the defendants were aware of the possession. This is sufficient to start the period of limitation. He relied upon the judgment of the Hon’ble Supreme Court in State of Rajasthan v. Harphool Singh, (2000) 5 SCC 652 and the judgment of this Court titled Hukam Singh (deceased) through his LRs vs. State of H.P. in RSA No.97 of 1989, decided on 11.03.1994. He further submitted that the mere filing of the suit will not stop the running of limitation. He relied upon the judgment of Hon’ble Madhya Pradesh in Nagu v. Bhanwarsingh, 1986 SCC OnLine MP 93 = AIR 1987 MP 102. Hence, he prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside and the suit of the plaintiffs be decreed.

17. Mr. R.P.Singh learned Deputy Advocate General, submitted that both the learned Courts below have concurrently found that plaintiffs had failed to prove their adverse possession. Such findings are based upon the evidence led before the Courts and do not warrant any interference in the second appeal. He submitted that the exact date of the entry into the possession has not been proved and the plaintiffs are relying upon the vague testimonies, which are not sufficient to infer the adverse possession. Hence, he prayed that the present appeal be dismissed.

18. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

Substantial question of law:

19. Before adverting to the substantial question of law on facts, it is pertinent to mention here that because of the direction issued by this Court in Civil Revision No. 89 of 2002, decided on 17[th] August 2007, the question of adverse possession is to be determined with reference to the date on which the proceedings were initially initiated under Section 163 of the H.P. Land Revenue Act. Hence, the submission that mere filing of the ejectment proceedings will not stop the adverse possession does not apply to the present case.

20. The proceedings under Section 163 of H.P. Land Revenue Act, 1954, commenced in the year 1985 as per order (Ext. PB), which bears the case file No. 363 /85. Hence, the question that falls for determination is “whether the plaintiff had perfected the title in the year 1985 or not”.

21. Article 112 of the Limitation Act prescribes a limitation period of 30 years for bringing a suit by the State Government. Hence, plaintiffs were required to prove that their possession was for more than 30 years in the year 1985.

22.

22. Learned Judicial Magistrate,1[st] Class, Mandi held in his order (Ext. PA) that the possession of the accused Prem Singh on the suit land was more than 4-5, as the plum trees start bearing fruits after 4-5 years. The complaint was made after 4-5 years from the ejectment and was barred by limitation. This document only shows that the possession of the predecessor of the plaintiffs was for more than 4-5, in the year 1981, on the date of the filing of the complaint and will not establish that the possession of the predecessor of the plaintiff was more than 30 years in the year 1985.

23. Manohar Lal Sharma (PW-5), stated that he visited the village of the plaintiffs on 07.03.2008 and found some trees of Plum, Citrus and Guava. The trees were aged about 35-40 years. His testimony shows that the trees were not planted before 1968, and 30 years had not expired in the year 1985. Hence, his testimony does not prove the possession of the predecessor in interest of the plaintiffs for more than 30 years in the year 1985.

24. Manmohan Singh (PW-4), stated that he found that an orchard was raised by Prem Singh, the father of the plaintiffs. He prepared the Jamabandi (Ext. PD), Tatima(Ext.PE) and a file regarding the encroachment, which was forwarded to the learned Assistant Collector 1[st ]Grade. He stated in his cross-examination that he was not aware that the predecessor-in-interest of the plaintiffs had encroached upon the suit land in the year 1985. He further stated that he had not got the age of the trees verified from any person.

25. The statement of this witness merely shows that he visited the spot and found trees existing on the suit land. He did not mention the age of the trees and specifically stated that he had not got the age verified from any person. Hence, his testimony does not establish the possession of the plaintiffs or their predecessor for more than 30 years in the year 1985.

26. Nihal Singh (PW-2), stated that he is aged 71 years. He had seen the suit land above Mandi Riwalsar Road. He has seen the plaintiff in possession since 1950. He had seen the trees which were aged more than 70 years. The learned First Appellate Court had rejected the testimony of this witness on the ground that his testimony was contrary to the statement of Manohar Lal Sharma, who had stated the age of the treesas 35-40 years. Since Manohar Lal Sharma was an independent person; therefore, there was no error on the part of the learned First Appellate Court in relying upon the testimony of Manohar Lal Sharma instead of this witness.

27. Ram Singh (PW-3), stated that he had seen the plaintiffs and their father in possession for 30-40 years. He made a statement on 03.03.2008 and his statement also establishes the possession since 1968, which falls short of the 30 years required in the present case.

28. Plaintiff, Jiwan Singh (PW-1), stated that his predecessor-in-interest Prem Singh was in possession before him. He had planted the trees, which are aged 40-50 years. His father was in possession for more than 60 years. He stated in his cross-examination that he could not tell the date when his father possessed the land. He mentioned his age as 49 years on 03.03.2008. His version that the age of the trees was 40-50 years is not supported by his witness and his testimony was rightly rejected by the learned Courts below.

29. There was no evidence to show the possession for more than 30 years. Hence, there is no error on the part of the There was no evidence to show the possession for learned Courts below that the plaintiffs had failed to prove the possession for the statutory period.

30. In Hukam Singh’s case (supra), this Court had specifically found that nautor was granted in 1947-48. The plaintiffs in the cited case had objected to the inclusion of the land by the PWD and the age of the trees was found 30 years. In these circumstances, it was held that the hostile possession was proved for more than the statutory period. However, in the present case, apart from the fact that the age of 30 years has not been completed, there is no evidence of the fact that a hostile animus was ever asserted by Prem Singh or the plaintiffs. It was not stated that when Mandi-Riwalsar Road was being constructed, any attempt was made to resist the same; therefore, this judgment will not apply in the present case.

31. No other point was urged. 32. Therefore, there is no infirmity in the findings of the learned Courts below and the substantial question of law is answered accordingly.

Final order:

33. In view of the above, the present appeal fails and the same is dismissed. The record of the case be remitted back to the learned Courts below. Pending miscellaneous applications, if any, also stand disposed of.

13[th] September,2023 (Ravinder)

(Rakesh Kainthla) Judge