2025:HHC:29421 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 417 of 2016 Date of decision: 29.8.2025. Chhemit Dorje ...Appellant Versus Ram Padam & others ...Respondents Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1. For the appellant: Mr. Rajneesh K. Lal, Advocate, For the respondents: Mr. Romesh Verma, Sr. Advocate with Mr. Sumit Sharma, Advocate. Satyen Vaidya, Judge (oral): This Regular Second Appeal under Section 100 of the Code of Civil Procedure (for short, the Code) has been filed against the judgment and decree dated 15.7.2016, passed by the learned District Judge, Kinnaur in Civil Appeal No. 06 of 2016, whereby the judgment and decree dated 26.9.2014, passed by the learned Civil Judge (Sr. Division) Reckong Peo, in Civil Suit No. 79-1 of 2012 has been affirmed. 2. The suit of the respondents/plaintiffs has been decreed and a decree of possession with respect to the land 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- comprised in khasra No. 592 (old No. 463/4), measuring 0- 06-19 hectares, situated at Up-Mohal Radule, Tehsil Kalpa, District Kinnaur (for short the suit land), has been passed against the appellant/defendant. 3. The parties hereinafter shall be referred by the same status, as they held before the learned trial Court. 4. Plaintiffs claimed title over the suit land and alleged the possession of defendant thereon as unauthorized and on this premise sought a decree of possession against the defendant in respect of the suit land. 5. Defendant had set up a plea of adverse possession. It was averred in the written statement that the defendant was in adverse possession of the suit land since 1979 and his possession was open, continuous, peaceful and hostile to the knowledge of the plaintiffs since then. On the basis of said plea, the defendant claimed to have perfected title over the suit land and had prayed for dismissal of the suit. 6. Learned trial Court framed the following issues:- “i) Whether the plaintiff is entitled for the injunction as prayed? OPP -3- ii) Whether the suit is barred by limitation, as alleged? OPD iii) Whether the suit is barred by principle of res- judicata, as alleged? OPD iv) Whether the plaintiff has no cause of action, as alleged? v) Relief.” 8. Issue No.1 was answered in affirmative and all other issues were answered in negative and resultantly, the suit of the plaintiff was decreed. A decree of possession in respect of the suit land was passed in favour of the plaintiffs. 9. In first appeal filed under Section 96 of the Code, the defendants remained unsuccessful. The appeal was dismissed by the learned District Judge, Kinnaur vide impugned judgment and decree dated 15.7.2016. 10. The instant appeal was admitted on the following substantial questions of law vide order dated 5.10.2016:- “i) Whether the judgments of the learned Courts below stand vitiated on account of non-framing of vital issue of adverse possession when the plea was taken by the defendant/ applicant in his written statement and otherwise also are -4- the judgments and decrees passed by both the learned courts below are against the provisions of Order 14 Rule 1 CPC. ii) Whether the suit filed by the plaintiff/ respondent was hit by the principles of limitation and res-judicata and the findings arrived by the learned Courts below on issue No. 2 and 3 are based on misreading, mis- appreciation of evidence and also based on surmises and conjectures? 11. I have heard learned counsel for the parties and have also gone through the record carefully. 12. Admittedly, the instant litigation is the second round between the parties. It is not in dispute that the suit land was part of land jointly owned by the plaintiffs along with one Pal Sukh. The said Pal Sukh had transferred his share in favour of defendant by way of sale. Thereafter, the partition proceedings were initiated and the suit land fell to the share of the plaintiffs, nonetheless, the defendant kept his claim for title over the suit land and for that matter had filed Civil Suit No. 30/1 of 1997 before the learned Senior Sub Judge, Kinnaur. A declaration of title was sought and since defendant was in possession of the suit land an injunction was also sought against the -5- plaintiffs herein to restrain them from interfering in the peaceful ownership and possession of defendants over the suit land. 13. The Civil Suit No. 30.1 of 1997 was decreed in favour of the defendant vide judgment and decree dated 11.6.1999 (Ext. PW-1/G). The defendant was declared as owner in possession of the suit land and consequently, the injunction decree was passed against the plaintiffs. 14. Aggrieved against the aforesaid judgment and decree passed by the learned Senior Sub Judge, Kinnaur, the plaintiffs filed appeal under Section 96 of the Code before the learned District Judge, Kinnaur. The appeal was registered as Civil Appeal No. 13 of 1999 and was decided on 11.9.2000. The appeal of the plaintiffs was partly allowed. The decree passed by the learned Senior Sub Judge, Kinnaur was set aside to the extent it declared the defendant as owner of the suit land. The remaining part of the judgment and decree was affirmed, whereby the defendant was held to be in possession of the suit property and consequent injunction decree was passed. -6- 15. The defendant assailed the judgment and decree passed by the learned District Judge, Kinnaur in Regular Second Appeal No. 509 of 2000 before this Court. The plaintiffs also preferred Cross-Objections. This Court vide judgment dated 20.5.2010 dismissed the appeal as well as the Cross-Objections. The judgment and decree passed by the learned District Judge, Kinnaur was affirmed. 16. In the above noticed backdrop, the learned trial Court has decreed the suit of the plaintiffs, as the title of plaintiffs over the suit land stood confirmed by the aforesaid decree passed by the learned Civil Court and the only thing required to non-suit the plaintiffs was the proof of acquisition of title of defendant by way of adverse possession, which according to learned trial Court had not been proved. 17. The learned First Appellate Court also affirmed the findings of fact as recorded by the learned trial Court. 18. This Court in Regular Second Appeal will not interfere in the concurrent findings of fact recorded by both the courts unless the same are found to be perverse to the records. In the factual background, as noticed above, no -7- other view can be taken except that the plaintiffs have clear title over the suit land. 19. The question whether the defendant had proved his adverse possession over the suit land has concurrently been answered in negative by both the courts. In order to prove adverse possession, it was incumbent upon the defendant to have proved the date and period, when the possession became adverse and thereafter uninterrupted continuity thereof with requisite hostile animus for continuous twelve years was also required to be proved. 20. Noticeably, in the previous litigation, as noticed above, the defendant had not raised any plea with respect to his possession over the suit land being adverse to the true owners. In that litigation, the defendant was claiming himself to be the owner of the suit land and it was on this premise only that the defendant was seeking protection of his possession. The aforesaid litigation culminated in the year 2010 by the judgment and decree passed by this Court in RSA No. 509 of 2000 along with Cross-Objections No.140 of 2001. -8- 21. Till the passing of the aforesaid judgment i.e. 20.5.2010, the plea of adverse possession was not there. In this view of the matter, the defendant later could not have raised a plea that he was holding the possession of the suit land adverse to the true owner even prior to 20.5.2010, when the aforesaid Regular Second Appeal was decided. 22. Another aspect that cannot be ignored is that the previous litigation was initiated by the defendant himself in the year 1997 with the allegations that the plaintiffs were trying to interfere in the rights of ownership and possession of the defendant over the suit land. The plaintiffs had throughout contested the allegations raised by the defendant and in fact had succeeded in proving their title over the suit land. Thus, in such circumstances, it does not lie in the mouth of the defendant to say now that his alleged hostile possession was uninterrupted. The plaintiffs on the other hand had continuously been asserting their right of title over the suit land and this fact is clearly antithetic to the concept of adverse possession. -9- 23. Thus, on scrutiny of the entire material, I do not find any reason to interfere with the impugned judgment and decree which has rightly been passed on the basis of evidence on record. Learned counsel for the defendant has not been able to show even a single circumstance, which may point out the perversity in the impugned judgments and decrees. 24. In result, the appeal fails and is accordingly dismissed. The judgment and decree dated 15.7.2016, passed by the learned District Judge, Kinnaur in Civil Appeal No. 06 of 2016, whereby the judgment and decree dated 26.9.2014, passed by the learned Civil Judge (Sr. Division) Reckong Peo, in Civil Suit No. 79-1 of 2012 was affirmed is further affirmed. No orders as to costs. Decree sheet be prepared accordingly. 25. The appeal is disposed of. Pending applications, if any, also stand disposed of. Records be sent back forthwith. (Satyen Vaidya) 29th August, 2025. Judge (kck)