SECOND APPEAL 251 of 1997 on 14 May 1985

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.251 of 1997.

Reserved on:26.12.2008.

Decided on: 31.12.2008.

Ishwar Dass

…Appellant.

VERSUS

State of H.P. & Ors.

….Respondents.

Coram

The Hon’ble Mr.Justice Kuldip Singh, Judge.

Whether approved for reporting?[1] Yes

For the Appellant : Mr Ajay Kumar, Advocate.

For the respondents: Mr A.K.Bansal, Addl.Advocate General.

Kuldip Singh, Judge.

The appellant was plaintiff and his suit for declaration that he has become owner of land comprised in Khasra No.224/1 by way of adverse possession was dismissed by learned Sub Judge 1[st] Class (2), Rohru on 27.12.1994. The appeal filed by him was dismissed by learned District Judge, Shimla on 11.8.1997, hence, he filed the second appeal.

Whether the reporters of the local papers maybe allowed to see the judgment? Yes

2. The facts, in brief, are that appellant filed a suit for declaration that he is owner in possession of land comprised in Khasra No.154 min (old) and Khasra No.224/1 (new) measuring 0-54-46 hectares, situated at Chack Garh, Tehsil Rohru and he acquired title of the suit land by way of adverse possession before the ejectment proceedings. The ejectment orders dated 14.5.1985 and 21.8.1996 passed by Tehsildar and Collector respectively are without jurisdiction.

3. The further case of the appellant is that he had been coming in adverse possession of the suit land for the last more than 30 years before the ejectment proceedings were started against him. The suit land was Banjar and was broken by his father. The appellant openly to the knowledge of respondents brought the suit land under cultivation and planted trees. In the year 1985 ejectment proceedings were started against the appellant by Tehsildar Rohru and on 14.5.1985 ejectment order was passed against him on the ground that suit land is Demarcated Protected Forest, a fine of Rs.700 was also imposed. The suit land was never Demarcated Protected Forest. It was during the last settlement operation that the suit land was recorded as Demarcated Protected Forest. The appellant filed appeal against the order dated 14.5.1985 which was dismissed by …3…

Collector Rohru on 21.8.1986. There was question of title and the revenue agency had no jurisdiction to eject the appellant and, therefore, both the orders of revenue Courts are without jurisdiction.

4. The suit was contested by respondents by filing written statement in which preliminary objections such as jurisdiction of the civil Court to try the suit, limitation, valuation, non-joinder of necessary parties and lack of notice under Section 80 CPC were raised. On merits, it was pleaded that appellant encroached the suit land in the year 1982 and the proceedings under Section 163 of the H.P. Land Revenue Act (for short ‘the Act’) were initiated against the appellant and after following due process of law ejectment order on 14.5.1985 was passed by Assistant Collector 1[st] Grade which was upheld by Sub Divisional Collector on 21.8.1986. The alleged adverse possession of the appellant on the suit land was denied. The suit land is Demarcated Protected Forest. The appellant filed replication and reiterated his stand. The learned Sub Judge dismissed the suit on 27.12.1994 and the dismissal of the suit was upheld by learned District Judge in appeal. The second appeal has been admitted on the following substantial questions of law:-

i)Whether the construction of a house exclusiveness of possession in …4…

continuity plus publicty of the same is not sufficient to prove adverse possession?

ii)What is the effect on the rights of the defendants when in the revenue records the land is shown to be in the possession of right holders as per customary rights of Bartandari in case one of the right holders makes construction on such land to the exclusion of all other persons?the defendants when in the revenue records the land is shown to be in the possession of right holders as per customary rights of Bartandari in case one of the right holders makes construction on such land to the exclusion of all other persons?

5. I have heard Mr.Ajay Kumar, learned counsel for the appellant, Mr.Anshul Bansal, learned Additional Advocate General for the respondents and gone through the record. On behalf of the appellant, it has been submitted that the appellant had constructed a house openly on the suit land which in itself is sufficient to prove hostile possession of the appellant on the suit land. In the revenue record, the land is shown to be in possession of the right holders as a customary right of Bartandari and appellant has every right to use such land, which in fact, he has used by raising construction to the exclusion of all other persons. The respondents have no right to eject the appellant from the suit land under Section 163 of the Act. The ejectment order dated 14.5.1985 of Assistant Collector 1[st] Grade and order dated 21.8.1986 of Sub Divisional Collector are without jurisdiction. The learned Additional Advocate General has supported the impugned judgment, decree. He has submitted that the appellant has miserably failed to prove his adverse possession on the suit land. The substantial questions of law in fact do not emerge from the case set up by the appellant.

SUBSTANTIAL QUESTIONS OF LAW No.(i) & (ii):

6. The substantial questions of law No.(i) and (ii) can be conveniently disposed of collectively, therefore, both these substantial questions of law are taken up together. Appellant has appeared as PW-1 and in his statement he has stated that he had been coming in possession of the suit land for the last 35 – 36 years. The suit land was broken by his father and he had broken the suit land by considering to be his own land. The appellant has nowhere stated that his father had broken the land by hostile animus and he exerted his adverse possession on the suit land. The appellant has also not stated that he had broken the suit land with hostile intention and adverse possession. He has simply stated that the Patwari, Kanungo and Tehsildar had been visiting but they never objected his possession. The appellant in his statement has nowhere stated that he had constructed a house on any portion of the suit land. He has admitted that ejectement …6…

proceedings were started against him and in fact he has placed on record order of Assistant Collector Ext.PD as well as order of Sub Divisional Collector Ext.PC. He has stated that in the current settlement the suit land was recorded as Demarcated Protected Forest, earlier it was not Demarcated Protected Forest. The presumption is in favour of later record.

7. In the plaint the appellant has not pleaded that he had constructed a house on any portion of the suit land nor he has pleaded that in the revenue record the suit land is recorded in the possession of right holders as a customary right of Bartandari. The pleadings and proof of adverse possession of the appellant on the suit land are not in accordance with the requirement of law. In the second appeal, the appellant cannot be permitted to introduce new case which he has not pleaded in the plaint.

8. The Assistant Collector 1[st] Grade has passed ejectment order Ext.PD against the appellant which has been upheld by Sub Divisional Collector vide order Ext.PC. These orders have been passed under Section 163 of the Act by competent revenue Courts. The findings on adverse possession is a finding of fact which cannot be disturbed in second appeal unless the finding is proved to be perverse or the case is brought within the well known parameters which are completely lacking in the present case. The appellant has miserably failed to prove his adverse possession on the suit land.

9. The appellant has submitted that right holders have customary right on the suit land and he is enjoying the suit land to the exclusion of all others but such right holders have not been impleaded in the suit. Both the substantial questions of law do not emerge from the pleaded case of the appellant. The two Courts below have rightly appreciated the material on record and no fault can be found with the decisions rendered by the two Courts below in rejecting the claim of the appellant of adverse possession on the suit land. The substantial questions of law No.(i) and (ii) are decided against the appellant.

10. No other point was urged.

11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs.

December 31, 2008.

(soni)

( Kuldip Singh ), J.