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High Court Of Himachal Pradesh
ARUN KUMAR GOEL
PRABHU RAM - Appellant
Versus
STATE OF H.P. - Respondent
Regular Second Appeal No. 42 of 1996
Decided On : 03/27/1997
ADVERSE POSSESSION - H.P. LAND REVENUE ACT, 1954 - SECTION 163 - Plaintiff claiming ownership of suit land on basis of adverse possession for over 40 years - Suit dismissed by trial court and first appellate court - Plaintiff's appeal to High Court - Held, plaintiff failed to prove adverse possession - Appeal dismissed.
Fact of the Case:
Plaintiff filed a suit for declaration of ownership and possession of suit land, claiming adverse possession for over 40 years. The suit was dismissed by the trial court and the first appellate court. Plaintiff appealed to the High Court.
Finding of the Court:
The High Court held that the plaintiff failed to prove adverse possession. The court noted that there was no entry of the plaintiff's possession in the settlement record of 1960-61, and that the plaintiff's oral evidence was not credible. The court also noted that the jamabandis for the years 1961-62 showed the suit land to be in the possession of a Match Box Factory.
Issues: 1. Whether the plaintiff proved adverse possession of the suit land for over 40 years? 2. Whether the courts below erred in dismissing the plaintiff's suit?
Ratio Decidendi: To establish adverse possession, the plaintiff must show the starting point of possession, the period of possession, and the hostile animus. In this case, the plaintiff failed to prove the starting point of possession and the hostile animus. The court also noted that the jamabandis for the years 1961-62 showed the suit land to be in the possession of a Match Box Factory, which rebutted the presumption of the plaintiff's possession.
Final Decision: The High Court dismissed the plaintiff's appeal.
Arun Kumar Goel, J.—This is plaintiffs appeal against the judgment and decree passed by Shri R L Raghu, Additional District Judge, Mandi, passed by him in Civil Appeal 56/90, decided on 1712-1993 By means of impugned judgment the first appellate court has upheld the judgment and decree passed by the Sub Judge 1st Class, Joginder Nagar in Civil Suit No. 120/s89 dated 8-3 1990 whereby the suit filed by the plaintiff was dismissed Brief facts giving rise to this appeal are that suit was filed for declaration with consequential relief of injunction by the plaintiff PI a raised by the plaintiff in the suit was that land measuring 704 Sq. Yards and 5 Sq. Feet situated Muhal Joginder Nagar, District Mandi comprised in khata/ khatauni No 390 min/610 min/1, khasra No. U41/1 (hereinafter referred to as the suit land) is owned and possessed by him and declaration was sought to this effect and consequently relief of injunction was prayed restraining the defendants from ejecting him from the same pursuant to the orders passed by the Assistant Collector 1st Class, Joginder Nagar in proceedings under Section 163 of the H P. Land Revenue Act on 21-6-1988. The plaintiff claimed ownership of the suit land on the basis of his being in adverse possession of the same for the last more than 40 years and therefore, according to him, his right was indefeasible. According to the plaintiff the proceedings culminating in passing of Ejectment orders on 21-6-1988 in file No 16, passed by the Assistant Collector 1st Crade Joginder Nagar in exercise of powers vested in him under section 163 of the H. P, Land Revenue Act are not sustainable either in fact or in law and since the defendants have failed to treat the said order as null and void as well as to concede his ownership over the suit land, hence the necessity of filing this suit. Exemption from issuing notice under section «0 (2) of the Civil Procedure Code was prayed for which appears to have been granted by the court below.
2; This suit was resisted and contested by the defendants where amongst other things pleaded that the order of ejectment passed in favour of the State and against the plaintiff from the suit land is legal and suit was bad for want of notice, court having no jurisdiction as also its being barred by time and estoppel was also pleaded as a defence I was further pleaded by the defendants that the plaintiff had encroached upon the land in the year 1988 with an intention to grab the same and his plea that he is in possession for the last 40 years and his having become owner by adverse possession was also controverted. In these circumstances parties went to trial on the following issues :
1. Whether the plaintiff is in peaceful possession of the suit land for the last more than 40 years and has become its owner by way of adverse possession as alleged ? O P.P. 2 Whether the suit of plaintiff is not maintainable in the present from ? O.P.D.
3. Whether the plaintiff is estopped by his act, conduct and acqui-scence to file the suit ? O.P.D. 4
4. Whether the plaintiff has got not no enforceable cause of action ? O.P.P.
5. Whether this court has no jurisdiction to entertain and try this
6. Whether no legal and valid notice under section 80 C P C was served upon the defendant, if so its effect ? O.P.D.
7. Whether the suit of the plaintiff is not within time ? O.P.D.
8. Relief. All these issues were decided against the plaintiff and consequently the suit was dismissed. * 3 The judgment and decree passed by the trial court was questioned before the first appellate court, who by means of impugned judgment and decree assailed dismissal of the suit ordered by the trial court, hence this
4. On the other hand Shri Chaudhary, learned Assistant Advocate General, appearing for the State has submitted that plaintiff has failed to prove his possession over the suit land as alleged by him. Not only this but it was father urged on behalf of the defendant state that there is ample, oral as well as documenta
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