2026:HHC:28232 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 109 of 2018 Reserved on 06.07.2026 Date of decision: 10.07.2026 Ram Saran (deceased) through LR ...Appellant. Versus Prabhat Singh & another ...Respondents. Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1Yes. For the appellant : Mr. R. K. Sharma, Sr. Advocate with Ms. Vidushi Sharma, Advocate. For the respondents : Mr. Ajay Sharma, Sr. Advocate with Mr. Tarun Bragta, Advocate. Romesh Verma, Judge: The present appeal arises out of the judgment and decree, as passed by the learned Additional District Judge-II, Kangra at Dharamshala, dated 26.10.2017, whereby the appeal preferred by the present appellant/defendant has been ordered to be dismissed and the judgment and decree dated 31.01.2017 as passed by the learned Civil Judge, (Jr. Division), Jawali, District Kangra, H.P. has been affirmed, whereby the suit filed by the plaintiffs/respondents was decreed. Whether reporters of Local Papers may be allowed to see the judgment? -2- 2. Brief facts as emerge in the present case are that the plaintiffs/respondents filed a suit for possession of land comprised in khata No. 151 min, Khatauni No. 232, khasra No. 846/645, measuring 0-02-25 HM, situated in village Matlahar, Mauza and Tehsil Jawali, District Kangra, H.P. on account of illegal, wrongful and unauthorized possession. 3. It has been averred in the plaint that the plaintiffs along with other co-sharers are owners of suit land. The suit land was never given to the defendant for any purpose whatsoever. The defendant is in illegal, unauthorized and wrongful possession of the suit land and the defendant has got no right, title, interest or connection whatsoever with the same. The defendant during the settlement operation in 1983-84 without their consent and at back of the plaintiffs and other co- sharers got the entry of ‘Kabiz’ in his favour in the column of cultivation in connivance and in collusion with the settlement staff but the possession of the suit land remained with the plaintiffs and other co-sharers till December, 2005. It is further alleged that the defendant in the first week of December, 2005 took forcible possession of the suit land under the fake entry of ‘Kabiz’. The possession of the defendant over the suit land is illegal, unauthorized and without legal status. The plaintiffs on the basis of title are entitled for the decree of possession. -3- 4. Though, the defendant was asked several time to admit the claim of the plaintiffs but he was adamant and not ready to do so, hence the suit. Therefore, it was prayed that decree for possession of land be passed in favour of the plaintiffs and against the defendant. 5. The suit was resisted by the defendant by filing written statement. He raised preliminary objections with respect to the maintainability, res-judicata, suppression of facts, limitation, estoppel and cause of action etc. On merits, it was stated that the defendant is in possession of the suit land from the time of his forefathers. It was denied that the defendant took possession of the suit land in December, 2005. The land is in possession of the defendant from the time of his forefathers and during the settlement operation, the possession of the defendant was rightly incorporated in the column of cultivation since it was in peaceful possession of the defendant at the time of the settlement. 6. As per defendant, the plaintiffs have got no right, title or interest over the suit land in any manner as suit filed by plaintiff No.2 was dismissed earlier, hence the plaintiffs are estopped by the principle of res-judicata to file the present suit. It was prayed that the plaintiffs have suppressed material facts while filing the present suit. Therefore, the suit is liable to be -4- dismissed with costs. Further, it is the case of the defendant that already the suit as instituted by Jaswant Singh, Iqbal Singh, Budhi Singh, Sant Ram, Mauzu and Partap Chand on 14.10.1996 was dismissed under Order 9 Rule 8 CPC. Therefore, now there is no occasion to the plaintiffs to file the suit and the suit is defective and not maintainable. All the averments as made in the plaint were refuted and denied and prayed for dismissal of the suit. 7. The plaintiffs filed replication to the written statement as filed by the defendant and reiterated all the averments as made in the plaint. 8. The learned trial Court framed issues on 27.08.2010 in the following manner:- “1. Whether plaintiffs alongwith other co-sharers are owners and were in possession over the suit land till December, 2005, as alleged? OPP. 2. Whether the defendant wrongfully recorded himself as 'kabiz' over the suit land during settlement operation during the year 1983- 84, and thereafter in the 1st week of December, 2005 took forcibly possession of the suit land, as alleged? OPP. 3. Whether possession of the defendant over the suit land is illegal and unauthorised, as alleged? OPP. -5- 4. If issue No.1 to 3 are proved in affirmative then whether plaintiffs are entitled for a decree of possession of the suit land, as prayed for? OPP. 5. Whether suit of the plaintiffs is not maintainable in the present form? OPD. 6. Whether suit of the plaintiffs is barred by principle of resjudicata? OPD. 7. Whether plaintiffs have not approached the Court with clean hands and have suppressed the material facts? OPD. 8. Whether suit of the plaintiffs is barred by limitation? OPD. 9. Whether plaintiffs have got no locus standi to sue? OPD. 10. Whether plaintiffs are estopped by their own act and conduct from filing the present suit? OPD. 11. Whether suit of the plaintiffs is without cause of action? OPD. 12. Relief”. 9. The learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 31.01.2017 decreed the suit as filed by the plaintiffs for possession. The learned Civil -6- Judge vide its judgment and decree held that the plaintiffs are entitled to recover the possession of the land comprised in Khata No. 151 min, Khatauni No. 232, Khasra No. 846/645, land measuring 0-02-25 HMs, situated in village Matlahar, Mauza & Tehsil Jawali, District Kangra, H.P. from the defendant. 10. Feeling dissatisfied by the judgment and decree, dated 31.01.2017, the defendant preferred appeal under Section 96 before the learned Additional District Judge-II, Kangra at Dharmshala, H.P. on 20.02.2017. The learned First Appellate Court vide its judgment and decree dated 26.10.2017 dismissed the appeal as preferred by the defendant and affirmed the findings as returned by the learned trial Court. 11. Still feeling aggrieved by the aforesaid judgments and decrees, the appellant/defendant has instituted the present regular second appeal by invoking Section 100 of the CPC. 12. It is contended by the learned counsel for the appellant that the judgments and decrees as passed by the learned courts below are erroneous and liable to be quashed and set aside. He submits that the suit as instituted by the plaintiffs before the learned trial Court is barred by the provision of limitation Act. Therefore, the suit ought to have -7- been dismissed on this very sole ground. He further submits that the earlier suit as instituted by the plaintiffs came to be dismissed for default, therefore, by virtue of the provisions of Section 11 of the CPC, principle of res-judicata is applicable in the present case. He would submit that after accepting the present appeal, the suit as filed by the plaintiffs/respondents deserves to be rejected. 13. On the other hand, learned counsel for the respondent has defended the impugned judgments and decrees as passed by the learned courts below. He submits that there are concurrent findings of fact as returned by the learned courts below and there is no scope of interference in the present proceedings. He submits that the impugned judgments and decrees as passed by the learned courts below are well reasoned and do not call for any interference in any manner. 14. The appeal was admitted by this Court on 15.11.2018, on the following substantial questions of law:- “1. Whether the right of the plaintiffs to recover the suit land had become extinguished under Section 27 of the Limitation Act? 2. Whether in view of earlier suit of the plaintiffs having been dismissed under Order 9 rule 8 CPC, the present suit was maintainable and not barred by the principle of res-judicata”? -8- 15. I have heard the learned counsel for the parties and have also gone through the record carefully. 16. The plaintiffs approached the learned trial Court for grant of decree for possession with respect to land comprised in khata No. 151 min, Khatauni No. 232, khasra No. 846/645, measuring 0-02-25 HM, situated in village Matlahar, Mauza and Tehsil Jawali, District Kangra, H.P. It is the case of the plaintiffs that the defendant during the settlement operation in 1983-84 without knowledge, consent and at the back of the plaintiffs got the entry of ‘Kabiz’ recorded in his favour in the column of cultivation in connivance with the settlement staff but the possession remained with the plaintiffs till December, 2005. In the 1st week of December, 2005, the defendant took forcible possession of the suit land under the fake entry of ‘Kabiz’. The possession of the defendant over the suit land is illegal, unauthorized and without legal status. That on the basis of title, the plaintiffs are entitled for the decree of possession. 17. On the other hand, the defendant has denied the case as set up by the plaintiffs on the ground that the suit land is in possession of the defendant since time of his forefather and the suit land is part of the land owned by the defendant. He denied that he took the possession of the suit land in -9- December, 2005. It was stated that the land is in possession of the defendant from the time of his forefather and during the settlement operation, the defendant has rightly been incorporated in the column of cultivation. Further, it has been stated that on account of dismissal of the previous suit filed by plaintiff No.2, the suit is barred by the principle of res-judicata. 18. In order to substantiate its case, the plaintiff Prabhat entered into the witness box. He has placed on record affidavit Ext. PW-1/A. In his deposition, he has stated that the defendant has got no right, title or interest over the suit land. The defendant is a very clever person and during settlement operation in the year 1983-84 in league and in connivance with the settlement authority, the defendant incorporated the entry of ‘Kabiz’ at his back and without his consent. However, the possession of the suit land remained with the plaintiffs till December, 2005. In the month of December, 2005, on the basis of false and incorrect revenue entries, the defendant forcibly occupied the suit land. The possession of the defendant over the suit land is illegal and the plaintiffs are entitled for decree of possession. In the cross-examination, the defendant could not extract anything favourable in his favour. 19. In order to rebut the case of the plaintiff, the defendant Ram Saran filed his affidavit Ext. DW-1/A and he -10- reiterated all the averments as made in the written statement. He has stated that since the time of his forefathers, he is in possession of the suit land. He has stated that the settlement authorities have rightly incorporated his name in the column of possession in a legal and correct manner. He has stated that plaintiff No.2 had earlier also instituted a suit titled Jaswant Singh vs. Ram Saran in the Court of learned Civil Judge, Jawali, District Kangra on 14.10.1996 and the same was dismissed on 16.08.1999. Therefore, on that count the plaintiffs are not entitled to file the suit. Since the earlier suit came to be dismissed, therefore, the plaintiffs have got no right to institute a fresh suit and the suit has been filed by the plaintiffs in order to harass the defendant. 20. In the cross-examination, he has stated that he does not know what is the khasra number of the suit land. He denied that as per revenue record, the plaintiffs are owners of the suit land. He stated that it is incorrect that during the settlement operation on 05.06.1984, his possession was incorporated in the revenue records. He stated that it is incorrect that this is the ancestral property of the plaintiffs. He stated that he cannot state the date and month about coming into possession of the suit land. He stated that no appeal was filed against settlement operation. He denied that in -11- connivance with the settlement authorities, he incorporated his name in the revenue papers. 21. The plaintiffs have placed on record jamabandi for the year 2006-07, Ext. P-1 and as per the same, the plaintiffs have been shown to be the owners of suit land bearing khasra No. 846/645. However, the same is being shown in the possession of Ram Saran, defendant. Ext. P-2 is the copy of jamabandi for the year 2001-02 and in the same, Iqbal Singh plaintiff No.2 has been shown to be one of the co-owners over the suit land and the same is in possession of Ram Saran, defendant. In the jamabandi for the year 1996-97 Ext. P-3, Iqbal Singh has been shown as one of the co-owners and Ram Saran, defendant has been shown to be in possession of the suit land over khasra No. 846/645. Ext. P-4 is the jamabandi for the year 1991-92, again plaintiff No.2 has been shown as one of the co-owners and defendant has been shown in possession of the suit land. Similar situation is being reflected in Ext. P-5 jamabandi for the year 1983-84 and in the same defendant, Ram Saran is being shown in the column of possession. 22. The entire case as set up in conjunction with the evidence as led by the defendant, the only defence which has been set up by the defendant is that the suit land is coming in -12- his possession since the time of his forefathers. Neither any claim/title has been set up nor any plea of adverse possession has been taken in the present proceedings. The revenue record clearly reveals that the plaintiffs are owners of the suit land. Therefore, on the strength of title, certainly they are entitled to get decree of possession from the defendant. The learned courts below have rightly held that the plaintiffs are title- holders and on the strength of the same, the decree for possession has to be passed against the defendant who is being reflected in the revenue record unauthorizedly and without any basis. The plaintiffs have been able to establish that they are owners of the suit land and the defendant unauthorizedly encroached the suit land in the year 2005. Therefore, on the basis of averments as made in the pleadings and on the basis of evidence as led by the plaintiffs in their testimonies in conjunction with the revenue record, which has been placed on record, it becomes clear that the plaintiffs are owners of the suit land and on the strength of the title, they are entitled for decree of possession of suit land, which has been unauthorizedly and illegally occupied by the defendant. 23. As far as the plea as raised by the learned counsel for the appellant that the suit as instituted by the plaintiffs is not maintainable as the same has been filed beyond the period -13- of limitation, the Hon’ble Supreme Court in its various decisions has repeatedly held that the suit based on title can be filed by the owner at any stage. In case the defendant has failed to set up the plea of adverse possession or title in any manner in that event, the plaintiff on the basis of title can institute the civil suit at any stage and at any time. The defendant has failed to plead or prove any title or the status over the suit land. Therefore, being owner of the suit land, the plaintiffs are well within their right to get the decree of possession. 24. The Hon’ble Apex Court has held that the change in the position in law as regard the burden of proof as was obtaining in the Limitation Act 1908 viz-a-viz the Limitation Act, 1963 is evident, whereas in terms of Section 142 and 144 of old Limitation Act, the plaintiff was bound to prove his title as also the possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963. Once the plaintiff proves his title, the burden shifts to defendant to establish that he has perfected his title by way of adverse possession. It is well settled principle of law that mere possession, however long, does not necessarily mean that it is adverse to the true owner. The classical requirement of acquisition of title by way of adverse possession and that such -14- possession in denial of true owner title must be peaceful, open and continuous. In the present case, the plea of adverse possession has not been claimed or set up in any manner. Once the plaintiffs have been able to prove their title, the burden of proof shifts to the defendant to establish that he has perfected his title by way of adverse possession. In absence of any pleading or proof, the only natural consequences would be to decree the suit of the plaintiffs for possession on the basis of title. 25. The Hon’ble Apex Court in Saroop Singh vs. Banto & others (2005) 8 SCC 330 has held as follows:- “26. In the instant case, the question of applicability of the Limitation Act does not arise. The Appellant-first defendant could have legitimately raised a plea that Indira Devi having died in the year 1961, his possession thereafter has become adverse to the true owner and, thus, on the expiry of the statutory period of limitation he had perfected his title by adverse possession. But, he did not raise such a plea. Even before us, Mr. Jain categorically stated that the Appellant does not intend to raise such a plea. 28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal -15- position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff- respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant- Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.” The Apex Court in its exposition of law has held that the applicability of the Limitation Act in the said case does not arise as the appellant in the said case could have legitimately raised a plea that his possession has become adverse to the true owner and, thus, on the expiry of the statutory period of limitation he had perfected his title by way of adverse possession. But, since he did not raise such a plea, therefore, no relief can be granted to the defendant. Similar is the position in the present case. In absence of acquiring any title by virtue of adverse possession the suit of the plaintiffs deserves to be decreed. 26. The learned trial Court has passed the findings of fact and passed the decree for possession which findings stood affirmed by the learned First Appellate Court and in the considered opinion of this Court, there is no illegality or perversity in the same. Therefore, the said findings require to be affirmed. -16- 27. As far as the contention of the learned counsel for the appellant that plaintiff No.2 had instituted a suit prior to institution of the present suit which came to be dismissed in default by the learned Civil Judge, Jawali on 16.8.1999. Therefore, it is contended by the learned counsel for the appellant that the suit is barred by principle of res-judicata. 28. In order to controvert said plea as raised by the appellant, the learned for the respondent has relied on the judgment as passed by the Hon’ble Supreme Court in case titled as Ram Gobinda Daw & others vs. Smt. H. Bhakta Bala Dassi etc. AIR 1971 SC 664 wherein it has been held that mere dismissal of earlier civil suit in default does not amount to determination or adjudication of the case on merits. Therefore, the provisions of Section 11 would not be applicable in the instant case. As has rightly been held by the learned courts below that mere dismissal of the suit for default does not amount to adjudication on the merits of the case. The provisions of Section 11 of CPC are not applicable in the case in hand. The learned courts below has thrashed the oral as well as documentary evidence placed on record and after arriving at valid and legal conclusion have rightly decreed the suit for possession filed by the plaintiffs. -17- 29. No other point was raised by the learned counsel for the parties. 30. The substantial questions of law are answered accordingly. 31. Consequently, in view of the observations as made hereinabove, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of. (Romesh Verma) Judge 10th July, 2026. (kck)