1 ( 2025:HHC:41608 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 335 & 336 of 2022 Date of Decision: 03.12.2025 1. RSA No. 335 of 2022 Manohar Lal and others …… appellants Versus Durga Parsad and others ……Respondents 2. RSA No. 336 of 2022 Manohar Lal and others …… appellants Versus Durga Parsad and others ……Respondents ________________________________________________________ Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 For the appellant(s) : Mr. Devender K. Sharma, Advocate, in both the appeals. For the respondent(s) : Mr. R.K. Sharma, Sr. Advocate, with M/s Anita and Muskan, Advocates, for respondents No. 1, 8 & 9 in RSA No. 335 of 2022 and respondents No. 1, 7(a) and 7(b) in RSA No.336 of 2022. Bipin Chander Negi, Judge Since both these appeals under Section 100 of the Code of Civil Procedure (for short CPC), have assailed the judgments and 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 decrees dated 28.09.2022 passed by the learned Additional District Judge, Mandi H.P. in Civil Appeal No.4 of 2022 and Civil Appeal No. 13 of 2018 titled as Manohar Lal and others vs. Durga Parsad and others affirming the composite judgments and decrees dated 8.3.2018 passed by learned Civil Judge, (Senior Division), Mandi, District Mandi in Civil Suit No. 103/10/2016, hence, they are being taken up together. 2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in which they were referred before learned Trial Court. 3. Brief facts of the case are that Mohan, Parma and Trangu were real brothers and were owners of land bearing khata/khatauni no.66min/174, comprised in khasra nos.722/1, 631, 634, 637 and 629, measuring 10-05-10 bighas and new khasra numbers are 642, 485, 488, 683 and 478 in muhal Kangru, Tehsil Sadar, District Mandi, H.P. (hereinafter referred to as the suit land no.1). They were also owners in possession of khasra nos.742 and 743 measuring 11-03-16 bighas and new khasra number of which is 648 (hereinafter referred to as the suit land no.2). 4. In fact, defendant no.1 wanted to purchase suit land no.2 but in its place on 27.06.1973, Mohan, Parma and Trangu sold suit land no.1 vide sale deed no.328, dated 27.06.1973, to defendant no.1. Possession of suit land no.2 was also delivered to defendant no.1, 3 who thereafter thought himself to be owner in possession of suit land no.2. After the death of these three persons, parties to the suit succeeded them and were also succeeded by Smt. Narbada. 5. When this position came to notice, they agreed to exchange these lands with each other keeping in mind their respective possession over the same. This matter was also reported to the revenue officials and rapat to this effect was entered on 28th October 1986 in rapat roznamcha wakyati, but this fact was recorded in the revenue record as ‘Bila Lagan Ba Wajha Tabadla’. Defendant No.1 remained in possession of suit land no.2 and thought himself to be owner in possession. 6. On the basis of revenue entry in the column of ownership, plaintiff purchased 1/3rd share of Narbada in suit land no.2 vide sale deed dated 17.8.1990. When defendant no.1 came to know about the sale deed, he filed civil suit No.69/1991 with a prayer that he is owner in possession of suit land no.2 and also prayed in the alternative that in case he was not able to prove his case, then he be declared owner of purchased land i.e. 10-05-10 bighas. The suit of the defendant No.1 was decreed to the extent that he was declared owner in possession of suit land No.1. Thereafter, defendant No.1 remained in possession of suit land No.2. The plaintiff purchased the share of Narbada wife of late Trangu to the extent of 04-00-00 out of the 3/10 share in the land 4 measuring 28-12-11 bighas in village Kangru, illaqua Balh, Tehsil Sadar. After the purchase of land, the plaintiff requested for joint possession of the land but this was declined. It is alleged that defendant no.1 cannot be allowed to resist the claim of plaintiff, so the present suit was filed for joint possession in the suit land no.2 to the extent of 23 shares out of 72 shares against defendants no.1, 2, 3 and 8. 7. Suit of the plaintiff was resisted by filing written statement- cum-counter claim. Preliminary objection was raised that there is complete ouster of the plaintiff and defendants No.2 to 8 as well as their predecessors from suit land no.2 and that defendant no.1 is in peaceful, continuous and hostile possession since 27.6.1973. Other preliminary objections were of maintainability, no cause of action, estoppel and valuation. On merits, it was admitted that defendant no.1 vide registered sale deed dated 22.6.1973 purchased suit land no.1, but joint possession of suit land no.2 was denied and it was claimed that defendant no.1 has become owner by way of adverse possession, though it was not denied that the plaintiff had purchased 1/3rd share of Narbada. 8. Replication-cum-written statement was filed denying the preliminary objections and adverse possession. The ld. Trial Court on 13.03.2012 framed the following issues: 5 1. Whether the plaintiff is entitled for the relief of joint possession of the land, as prayed for? OPP 2. Whether the suit of the plaintiff is not maintainable, as alleged? OPD 3. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD 4. Whether the suit of the plaintiff is time barred, as alleged? OPD 5. Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged? OPD 6. Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction, as alleged? OPD 7. Whether the counter claimant is entitled for relief of declaration that counter claimant is owner in possession by way of adverse possession, as alleged? OPD 8. Whether the counterclaim of the counter claimant is not maintainable, as alleged? OPP 9. Relief. 9. Both parties led their respective evidence. Vide common judgment dated 8.3.2018, the ld. Trial Court decreed the suit of the plaintiff for joint possession and restrained the defendants from any construction or changing nature of suit land comprised in khasra no.648 and dismissed the counter claim filed by the defendants for non-maintainability as well as for not proving adverse possession. 6 10. Against this judgment, two separate appeals were filed. In appeal no.13/2018 it was contended that the judgment and decree were nullity as Smt. Kameshwari Devi, Smt. Khimi Devi and Smt. Kadsi Devi had died during pendency of the suit and their legal representatives were not brought on record, resulting in abatement; that the counter claim was not separately registered; and that the ld. Trial Court failed to appreciate adverse possession. In appeal No.4 of 2022 similar grounds were raised along with the contention that the judgment was not a speaking one and proper reasons were not assigned. 11. The first appellate court, however, dismissed both the appeals. Therefore, the present second appeal. 12. Heard counsels for the parties and perused the impugned judgements. 13. Upon examination of the entire record, it stands affirmed that the ld. Trial Court rightly concluded that the plaintiff had purchased 1/3rd share of Smt. Narbada in suit land no.2 and that this fact had never been denied by the defendants at any stage of the proceedings. The said purchase is also reflected in civil suit no.69/1991 (Ex.PW1/C), wherein defendant no.1 himself had acknowledged the sale by Smt. Narbada. Once the title of the plaintiff to the extent of the purchased share stood admitted, no further dispute survived regarding 7 his right to joint possession. The principle that possession follows title was correctly applied, and the first Appellate Court, while dismissing the appeal, found no infirmity in the decree of joint possession passed in favour of the plaintiff. These findings warrant no interference in second appeal. 14. Regarding the counter claim, defendant no.1 had asserted adverse possession over suit land no.2 since 27.06.1973, yet the documents relied upon by him, particularly Ex.DW1/H (roznamcha entry), Ex.DW1/C, Ex.DW1/E and Ex.PW1/F, instead show that the possession was initially on account of an admitted mistake wherein the wrong khasra number was inserted in the sale deed. Subsequently, the parties mutually agreed to exchange ownership and reported the same to the patwari. Such conduct is wholly inconsistent with hostile or adverse possession. Moreover, in civil suit no.69/1991 (Ex.PW1/C) defendant no.1 had himself sought to be declared owner of suit land no.2 or, in the alternative, to reclaim suit land No.1-demonstrating acknowledgment of the true ownership of suit land no.2. The recorded statement therein that he was willing to hand over possession of suit land no.2 further negates any claim of hostility. 15. The admissions of DW-1 in his cross-examination reinforced the absence of animus possidendi. He admitted that possession was pursuant to a family arrangement and that refusal to 8 deliver possession occurred only after he and his brother had “changed their moods.” Such statements are destructive of the requirement of continuous, exclusive, open, hostile and uninterrupted possession for the statutory period. The ld. Trial Court, therefore, correctly held that defendant no.1 had completely failed to establish adverse possession and the first appellate Court rightly endorsed this finding. The counter claim was thus rightly dismissed. 16. On the issue of abatement raised by the defendants, the ld. Trial Court had already, vide order dated 08.11.2013, exempted the necessity of bringing on record the legal representatives of deceased defendants No.5 Kameshwari, No.7 Khimi Devi and No.8 Kadsi Devi. This finding of the Trial Court was duly noticed and upheld by the first appellate Court. Therefore, the objection regarding abatement was devoid of merit and stands conclusively rejected. 17. In view of the aforesaid findings, both the ld. Trial Court and the first appellate Court have appreciated the evidence and the legal position correctly. 18. In the aforesaid facts and attending circumstances, there arises no question of law much less a substantial question of law for the consideration of the Court. The judgments and decrees passed by the learned Courts below are based upon correct appreciation of facts and law and do not suffer from any perversity, illegality or infirmity warranting interference under Section 100 of the Code of Civil Procedure. 9 Accordingly, the present Regular Second Appeals are dismissed. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) 3rd December, 2025 (Tarun/TB) Judge