1( 2026:HHC:21298 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. : 62 of 2019 Decided on : 22.05.2026 Santosh Kumari & another ….Appellants. Versus Rakesh Kumar & Ors. …..Respondents ___________________________________________________________ Coram: The Hon’ble Mr. Justice Romesh Verma. Judge. Whether approved for reporting?1 For the appellants : Mr. Pushpender Kumar, Advocate vice Mr. Kulbhushan Khajuria, Advocate. For the respondents : Mr. Nimish Gupta, Advocate. ___________________________________ Romesh Verma, Judge(Oral) The present Regular Second Appeal arises out of the judgment and decree, as passed by the learned District Judge, Chamba, Division Chamba, H.P. dated 19.11.2018, whereby the appeal filed by the respondents/ plaintiffs was allowed and the judgment and decree as passed by the learned Civil Judge, Chamba, District Chamba, H.P., dated 26.06.2018, dismissing the suit of the plaintiffs, was set-aside. 2. Brief facts of the case are that the plaintiffs/respondents filed a suit for possession of shop and house comprising in Khasra Nos. 1193 and 1194 1Whether reporters of Local Papers may be allowed to see the judgment? 2( 2026:HHC:21298 ) measuring 00-02-00 bighas, situated in Mohal Junas, Pargna Sei, Tehsil Churah, District Chamba, H.P. 3. As per the averments as made in the plaint, it was averred that the suit property is in the nature of house and shop and the same is comprised in Khasra Nos. 1193 and 1194. There was a dispute between the parties and possession was delivered to the plaintiffs by the order of learned Civil Judge (Senior Division) Chamba- H.P. The defendants, who are strangers to the suit property, at the back of the plaintiffs dispossessed the plaintiffs from the suit property, by taking advantage of the absence of the plaintiffs being busy in a religious ceremony. It was further averred that the defendants unlawfully entered into the suit property by breaking the locks and bolts and put some household articles in the house and shop and illegally took the possession of the suit property, to which they were not legally entitled. When the plaintiffs went to their old house comprised in Khasra Numbers 1193,1194, found locks and bolts of the house and shop broken. Thereafter, the matter was reported to the police but the police officials did not take any lawful action against the defendants. Therefore, it was prayed that decree for possession of shop and house comprised in Khasra Nos. 1193,1194 measuring 00-020 bighas, Khatan Khatauni No. 3( 2026:HHC:21298 ) 137/157 min , situated at Mohal Junas, Pargana Sei, tehsil Churah, District Chamba, H.P., be passed in favour of the plaintiffs 4. The suit was contested by the defendants by raising various preliminary objections with respect to the maintainability, concealment of material facts estoppel, locus-standi etc. On merits, it was averred that the defendants are in peaceful possession of the suit property and that the plaintiffs have filed the present suit by suppressing the material facts and by concealing the better particulars. The only stand which was taken by the defendants in their defence was that their possession over the suit property is peaceful, hostile, open and within the knowledge of the plaintiffs, hence the plaintiffs are estopped to file the present suit on account of their own acts, deeds and conduct etc. 5. The plaintiffs filed replication to the written statement as filed by defendants and reiterated the averments as made in the plaint. 6. The learned trial Court framed the issues in the matter on 15.06.2016 in the following manner: 1. Whether the plaintiffs are entitled to a decree of possession of shop and house belonging to them comprised in Khasra Nos. 1193,1194 measuring 00-02-0 bighas,Khata Khatauni No. 137/157 min 4( 2026:HHC:21298 ) situated at Mohal, Junas, Pargana Sei, Tehsil Churah, District Chamba? OPP 2. Whether the suit of the plaintiffs is not maintainable in the present for and is liable to be dismissed?OPD 3. Whether the suit of the plaintiffs is barred by resjudicata? OPD 4. Whether the plaintiffs have filed the present suit by suppressing material fact? OPD 5. Whether the plaintiffs have not come to the Court with clean hands and are thereby not entitled for any relief ? OPD 6. Whether the plaintiffs are estopped from filing the suit due to their own act and conduct?OPD 7. Whether the plaintiffs have no cause of action against the defendants? OPD 8.Whether the plaintiffs have no locus standi to file the present suit?OPP 9. Relief. 7. The learned trial Court directed the respective parties to adduce evidence in support of the contentions and vide its judgment and decree dated 26.06.2018, the suit filed by the plaintiffs against the defendants was dismissed. 8. Feeling dissatisfied, the plaintiffs preferred an appeal in the Court of learned District Judge, Chamba, Chamba Division, Chamba, H.P. on 23.07.2018. The First 5( 2026:HHC:21298 ) Appellate Court vide its judgment and decree dated 19.11.2018 accepted the appeal and suit filed by plaintiffs was decreed and accordingly the plaintiffs were held entitled for decree of possession of the suit property from the defendants, being in the shape of a shop and house comprised in Khasra Nos. 1193 and 1194 measuring 00- 02-00 bighas, Khata/ Khatauni No. 137/157 min, situated at Mohal, Junas, Pargana Sei, Tehsil Churah, District Chamba.. 9. Feeling aggrieved, the defendants have approached this Court by filing the instant Regular Second Appeal under Section 100 of C.P.C., challenging the judgment and decree as passed by the first appellate Court. 10. The Regular Second appeal was admitted by this Court on 21.05.2019, on the following substantial question of law: 1. Whether the judgment and decree passed by both the courts below are legally sustainable specifically when no issue was framed qua the rent? 2. Whether it was incumbent upon the first appellate court below to have given decision on each on every issue which arose for consideration 6( 2026:HHC:21298 ) before the learned Court? Was it not a statutory requirement for giving reason for each issue which arose for consideration before this Hon'ble Court? 3. Whether the learned first appellate Court erred in not appreciating the provisions of law applicable, pleadings of the parties and evidence which have been adduced by them as a result of that vitiating the judgments and decrees? 11. It is contended by Mr. Pushpender Verma, learned vice counsel for the appellants that the impugned judgment and decree as passed by the learned first appellate Court is erroneous and liable to be quashed and set-aside. He submits that the learned First Appellate Court has erred in accepting the appeal as filed by the plaintiffs and decreeing the suit for possession. He further submits that after accepting the present appeal, suit filed by the plaintiffs deserves to be dismissed. 12. On the other hand Mr. Nimish Gupta, Advocate learned counsel for the defendants has defended the impugned judgment as passed by the learned First Appellate Court. He submits that the First Appellate Court being the last Court of fact determined the point in controversy and in the present proceedings no interference of any kind is required. He further submits 7( 2026:HHC:21298 ) that the learned trial Court had erred in dismissing the suit. Thereafter, the learned First Appellate Court after taking into consideration the oral as well as documentary evidence placed on record has rightly accepted the appeal and decreed the suit filed by the plaintiffs. 13. I have heard learned counsel for the parties and have perused the record. 14. The plaintiffs/ respondents filed a suit for possession against the defendants on the ground that the possession of the disputed property with respect to Khasra Nos. 1193,1194 consisting of house and shop was delivered to them by virtue of the decree dated 10.06.1987 passed by the learned Civil Judge, Senior Division Chamba, District Chamba. It is the case of the plaintiffs that after passing of the aforesaid judgment, the execution was preferred by the plaintiffs and the same stood satisfied on 14.05.2009, which is apparent from Ext. P-6. After obtaining the possession of the suit property in pursuance to the Court’s order, at the back of the plaintiffs, the defendants forcibly dispossessed the plaintiffs from the suit property when they were busy in performing religious ceremonies. 15. According to the plaintiffs, cause of action arose to the plaintiffs on 11.06.2009 when the defendants 8( 2026:HHC:21298 ) unlawfully broke the locks and bolts of the house and shop in question and forcibly took the possession of the same from the month of August 2010, when the defendants refused to accept the request of the plaintiffs. The perusal of the written statement which has been filed by the present appellants/defendants reveals that only defence, which has been taken by the defendants, is that they are in peaceful possession of the suit property with the knowledge of the parties to the suit. It has further been averred that they are in peaceful possession of the suit property and the said possession is hostile and open to the knowledge of the plaintiffs. Save and accept the said defence, no efforts have been made in the written statement to prove their locus standi for holding the possession. In the written statement, they have admitted that they are in possession of the suit property and the plaintiffs have got no cause of action to file the suit for possession against them. 16. Admittedly, by virtue of the judgment and decree passed on 10.06.1987 (Ext.P-4), suit for declaration and possession was passed in favour of the predecessor in interest of the plaintiffs and thereafter by issuing warrant of possession (Ext.P-7), the possession of the suit property was handed over to them. The admission as made by the 9( 2026:HHC:21298 ) defendants that they are in possession clinches the entire controversy , therefore, based upon the title, the plaintiffs are very much within their right to file the suit for possession. Though the defendants have tried to take up the plea half heartedly of adverse possession but neither there are pleadings qua this effect nor any evidence. The plea of adverse possession has been rightly rejected by the learned First Appellate Court in the absence of any oral or documentary evidence placed on record. The First Appellate Court has rightly come to the conclusion that since the suit property was handed over to the plaintiffs in 2009, therefore, even otherwise the plea of adverse possession which was raised in the year 2014 is not permissible. 17. Hon’ble Apex Court in Vasantha (dead) through legal representative vs. Rajalakshmi alias Rajam (dead) through legal representatives, (2024)5 SCC 282, has held that 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 10( 2026:HHC:21298 ) possession was open and undisturbed. A person pleading adverse possession has no equities in his favour since he is trying to defeat rights of true owner, it is for him to clearly plead and establish all facts necessary to prove his adverse possession. 18. Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect, but also on account of possessor’s positive intent to dispossess. Therefore, it is important to take into account before stripping somebody on his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the owner of the property on paper. The intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess, which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one ways; firstly, 11( 2026:HHC:21298 ) due compliance on this court attracts the Limitation Act and it also assists the court to unearth the intention to dispossess. 19. The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving or omission of the right to defend or care for the integrity of property on the part of the owner of the property on paper. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of adverse possessor. 20. The issue is that intention of the adverse user gets communicated to the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession 12( 2026:HHC:21298 ) of adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper. Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. 21. In the present case, the pleadings and the evidence as led by the defendants lacks the basic ingredients to prove the case of adverse possession. When specifically asked this question to the learned counsel for the appellants that in what capacity, the defendants are occupying the suit property, the learned counsel failed to answer the same. Once the plaintiffs have been able to establish their title over the suit property and it has come on record that by virtue of the execution in the year 2009 which was filed by the plaintiffs, the possession was delivered to them and subsequently they were dispossessed from the suit property, learned trial Court 13( 2026:HHC:21298 ) erred by dismissing the suit of the plaintiffs . The First Appellate Court has rightly come to the conclusion that based upon the title the suit filed by the plaintiffs is required to be decreed. Once plea of adverse possession has been set up by the defendants it means that they admit the ownership of plaintiffs. 22. The aforesaid discussion leads to the conclusion that the appellants/defendants are strangers and in unauthorized possession of the suit property and in order to deprive the fruits of the decree, which was passed in favour of the plaintiffs/respondents vide judgment and decree dated 10.06.1987, the present appellants dispossessed the plaintiffs/respondents un-authorizedly from the suit land. In the considered opinion of this Court, once it is held that the appellants/defendants are in unauthorized possession of the suit property, therefore, no issue with respect to the rent either arose or needs determination in any manner. Similarly findings on the issues as framed does not call for any interference. 23. The learned first appellate Court has determined the point in controversy after taking into consideration material placed on record. There is no infirmity or illegality in the same. The suit, as filed by the respondents/plaintiffs, on the basis of title has rightly been 14( 2026:HHC:21298 ) decreed against the strangers/unauthorized occupiers. Substantial questions of law are answered accordingly. 24. The First Appellate Court being the last Court of fact has rightly determined the oral as well as documentary evidence placed on record and has rightly come to the conclusion that defendants have failed to plead and prove the case of adverse possession, therefore, the suit as filed by the plaintiffs has rightly been decreed. 25. Consequently, there is no merit in the appeal and the same is accordingly dismissed. The pending application(s), if any, also stands disposed of. (Romesh Verma), Judge 22nd May, 2026 (veena)