IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 9 of 2023 Decided on:18.03.2025 ____________________________________________________ Veena and others ……….. appellants Versus Shikha and others ………respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the appellants : Mr. Sunny Modgil, Advocate, (through video conferencing). For the respondents : Mr. Parmod Singh Thakur, Advocate, for respondents No. 1 to 3. : Mr. Mohar Singh, Advocate, for respondent No.4. : None for respondents No.5 and 6. ____________________________________________________ Bipin Chander Negi, Judge (oral) The appellants, by filing this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code'), has assailed the judgment and decree dated 28.09.2022 passed by the learned District Judge, Una in Civil Appeal No.43 of 2020. By the said judgment and decree, the lower Appellate Court has upheld the judgment and decree dated 12.03.2020 passed by the learned Senior Civil Judge, Una, in Civil Suit No.128 of 2010. 2. The appellants before this Court were the defendants before the trial Court. The facts leading up to the present appeal are as follows: 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 2.1 The present appeal arises from the judgment and decree passed by the learned trial court in a suit filed by the Respondents/Plaintiffs for possession of the land comprised in Khewat No. 82, Khatauni No. 122, Khasra Nos. 280 and 291, measuring 0-00-81 square meters, as entered in the Jamabandi for the year 2008-09, situated in Village Takhatpur, Tehsil and District Una (hereinafter referred to as the "suit land"). 2.2 The Respondents/Plaintiffs, who are residing abroad, claimed that their attorney resides at Palampur and seldom visits the suit land. They alleged that the appellants/defendants, taking advantage of their absence, took possession of the suit land approximately one year prior to filing the suit and raised construction on it. The Respondents/Plaintiffs further stated that their attorney, while inspecting the records to mutate their one-half share in the suit land, discovered the appellants/defendants' forcible possession and unauthorized construction. The Respondents/Plaintiffs, through their attorney, requested the appellants/defendants to remove the construction and hand over vacant possession of the suit land. However, after initially evading the request, the appellants/defendants refused to comply. Based on these averments, the Respondents/Plaintiffs prayed for a decree of possession of the suit land. 2.3 The appellants/defendants resisted and contested the suit by filing a written statement. They raised preliminary objections regarding the cause of action, maintainability of the suit, locus standi of the Respondents/Plaintiffs, estoppel, long possession, improper valuation, and non-joinder of necessary parties. The appellants/defendants contended that the suit land is surrounded by land purchased by them from the Respondents/Plaintiffs through valid sale deeds executed on 24.04.1979, 03.08.1983, and 22.03.1985. Mutations were also sanctioned in their favour. They claimed that the purchased land, as well as the suit land, has been in their possession since April 1955. The appellants/defendants further asserted that their possession of the suit land has been open, continuous, and uninterrupted since 3 1955, and as a result, their possession has ripened into full ownership by way of adverse possession. They also submitted that the attorney of the Respondent/Plaintiff has been visiting the premises, and another civil suit titled Abhinash Chand through Suresh Chand vs. Deepak through guardian Veena (involving the present appellants/defendants) has been pending for the last eight years, which contradicts the Respondents/Plaintiffs’ claim of not visiting the suit land. The appellants/defendants prayed for the dismissal of the suit. 2.4 The Respondents/Plaintiffs filed a replication to the written statement, controverting the contents of the written statement and reasserting the averments made in the plaint. 3. Based on the pleadings of the parties, the learned trial court framed the following issues for adjudication and determination vide order dated 06.05.2011:- 1. Whether the plaintiffs are entitled for relief of possession? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiffs have no locus standi to file the present suit? OPD 4.Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD 5. Whether the defendants have become owners of the suit premises by virtue of adverse possession? OPD 6.Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 7.Whether the suit is bad for non-joinder of necessary parties? OPD 8. Relief 4 4. The parties to the suit were put on trial qua issues referred supra. They adduced oral and documentary evidence in support of their rival claims. The learned trial Court after considering the material on record decreed the suit of the plaintiffs by deciding issue No.1 in favour of the respondents/plaintiffs and issues No. 2 to 7 against the appellants/defendants. The trial court discussed the law regarding adverse possession which is that adverse possession had two basic elements i.e. the possession of the defendants should be adverse to the plaintiff and the defendant must continuously remain in possession for a period of twelve years thereafter. The parties have to establish by leading cogent evidence the date when their possession became hostile to the knowledge of the true owners so as to calculate the period of adverse possession. Once ownership is proved by the plaintiffs, the plaintiffs can be non-suited only if the adverse possession is proved by the defendants. The respondents/plaintiffs, through their attorney Suresh Chand (PW-1), claimed ownership of the suit land and alleged that the appellants/defendants forcibly took possession and raised construction on it. PW-1 denied the appellants/defendants' claim of adverse possession or purchase of adjoining land but admitted selling a well on the suit land with a condition to access water. The appellants/defendants examined Banta Ram (DW-1) and Veena Devi (DW-2), who testified that 5 they had been in continuous possession of the suit land since 1955 and had purchased surrounding land. However, they failed to provide evidence of hostile possession or animus possidendi (intent to possess as owners), essential for proving adverse possession. DW-2 admitted ignorance of the term "adverse possession" and could not produce documents supporting their claim. The trial court found the plea of adverse possession unsustainable, as the appellants/defendants' possession was not shown to be hostile or exclusive. Their claim of purchasing surrounding land while continuing possession of the suit land was inconsistent with adverse possession. The court also noted contradictions in their pleadings and evidence, particularly regarding construction on the purchased land. Consequently, the plea of adverse possession was rejected, and the suit for possession was decreed in favour of the respondents/plaintiffs. The trial court also held that the suit was not barred by the principle of estoppel and was properly valued for the purpose of court fees and jurisdiction. 5. Feeling aggrieved and dissatisfied, the Appellants/defendants assailed the judgment and decree dated 12.3.2020 of learned trial court before the First Appellate Court on the grounds that the Judgment and decree under appeal are based on surmises and conjectures and as such, being illegal and not sustainable in the eyes of law. The findings on all the issues 6 were against the evidence on record. The findings of the learned trial court are wrong and perverse on all the issues. The learned trial court committed an illegality in not properly appreciating the case of the Appellants/Defendants. The learned trial court wrongly decreed the suit of the Respondents/Plaintiffs without considering and appreciating the pleadings as well as evidence adduced on record. Therefore, the impugned Judgment and decree was liable to be set aside. 6. The 1st Appellate Court affirmed the findings of the trial court and dismissed the appeal with costs. 7. Heard counsel for the parties. Perused the record. 8. The plaintiffs/respondents claim themselves to be owners of the suit land. The appellants/defendants do not dispute this fact, but their plea is that they have perfected their title by way of adverse possession. Mere possession for a long time does not result in converting permissive possession into adverse possession. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a). on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d). how long his possession has continued, and (e) his possession was open and undisturbed. 7 9. Both the Courts have concurrently held that there is no evidence on record which establishes all the ingredients necessary to be proved for constituting the adverse possession as referred above. The story of the appellants/defendants is that they had purchased some fourteen and a half kanals of land from the predecessor-in-interest of the plaintiffs and were continuing in possession of that purchased land as well as the suit land prior to the said purchaser and they continued to be in possession of the same after the said purchase. If they had purchased fourteen and a half kanals of land, it means that they were not asserting pleas of adverse possession qua the same. So, in these circumstances, both the Courts below have correctly concurrently held that it is not understandable how one small portion of land measuring 0-4 marlas out of a big chunk of land, can be claimed to be in hostile possession, when the possession of the entire land had started together. 10. It is well settled that once the defendants have failed to establish his adverse possession for the statutory period, a suit for possession based on the title cannot be dismissed as being time barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession. In this respect, reference can be made to judgment reported as Tilak Raj vs. Bhagat Ramand another 1997 (1) Sim. L.C. 281 as well as 8 case reported as Indira vs. Arumugam and another (1998) 1 SCC 614. In view of the aforesaid, no question of law much-less a substantial question of law arises for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 18th March, 2025 Tarun