The possession of land allotted in partition proceedings can be claimed within three years from the date recorded in the instrument of partition, as per Section 134 of the H.P. Land Revenue Act.

Kuldip Chand Sood, J.—This Second appeal is directed against the judgment and decree of the learned District Judge, Rampur Bushahr dated 9.6.2000.

2. It appears, property subject matter of dispute (khasra No. 419) along with other properties was owned and possessed by one Gopi Chand, who died in the year 1979. The properties were inherited by his four sons, namely Nand Lal (plaintiff), Brij Lal, Durga Singh and Vidya Singh along with two sons of his pre-deceased brother Hira Lal, namely Shivdhian Singh and Ramayan Singh. The plaintiff, thus have l/5th share in the aforesaid properties.

3. Case of plaintiff Nand Lal was that in the partition which took place in the year 1990, Khasra No. 419 fell in his share. The mutation of this partition was attested on 30.9.1990. The possession of this particular land was given to him on 9.5.1991. Defendants, Durga Singh and his wife Uma Pati, forcibly dispossessed the plaintiff from a portion of khasra No. 419, described in the plaint as Khasra No. 419/1 measuring 0-01-92 hectares. The plaintiff filed a suit for possession of this land on the basis of title. The suit was resisted by the defendants on several grounds. It was denied that this particular land fell in the share of plaintiff in partition. It was claimed that mutation of partition attested in favour of the plaintiff on 30.9.1990 was wrong, illegal and void. It was also denied that they took forcible possession of khasra No. 419 in May, 1997, as claimed by the plaintiff. Defendants also set up title by way of adverse possession. Learned trial Court found that this particular land was allotted to the plaintiff in partition and the possession whereof was also delivered to the plaintiff, as claimed by him.

4. Dissatisfied, the contesting defendants carried an appeal before the learned District Judge, which was dismissed by the impugned judgment and decree dated 9.6.2000.

5. Still aggrieved, defendants Durga Singh and Smt. Uma Pati are in second appeal.

6. I have heard Mr. G.D. Verma, learned Senior Advocate, assisted by Mr. Romesh Verma, learned Counsel for the appellants and S/Sh. B.N. Gupta vice Mr. K.D. Sood, Advocate and Mr Naresh K. Thakur, learned Counsel for respondents 1 and 2, respectively.

7. The only contention, raising substantial question of law, of Mr. Verma is that partition application was allowed by the Assistant Collector 1st Grade on 29.12.1981. Defendants filed an appeal before the Collector which was decided on 19.10.1982. Plaintiff filed second appeal before the Commissioner, who decided this appeal on 8.9.1983 upholding partition of the land and, therefore, the possession ought to have been claimed within three years of the date of dismissal of the appeal of the contesting defendants, that is, 8.9.1983. In view of the provisions of Section 134 of the H.P. Land Revenue Act, the possession could not be claimed by the plaintiff after three years of the order of the Commissioner.

8. It appears from the record that Assistant Collector 1st Grade passed an order of partition of joint holding of the parties which measured about 48-19 bighas of Chak Kothi, Tehsil Kalpa on 29.12.1981. No instrument of partition was drawn. The matter was finally settled by the orders of Commissioner on 8.9.1983. Instrument of partition, it appears, was drawn after that. Learned first appellate Court observed that partition by meets and bounds took place and instrument of partition was drawn by the Assistant Collector vide orders dated 31.3.1990. Mr. Verma, learned Senior Counsel for the appellants contends that there is nothing on record to suggest that such an instrument was drawn on the date noticed by the learned first appellate court. From the reading of judgment of the first appellate Court, it appears that this fact was not disputed before him. The relevant part of the order/judgment reads : "At the time of arguments before me, the learned Counsel for the parties had to concede that Khasra No. 419 was subject matter of partition i