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2009 Supreme(HP) 715

HIMACHAL PRADESH HIGH COURT
HON’BLE MR. JUSTICE RAJIV SHARMA, J.
DR. Y.S. PARMAR UNIVERSITY OF HORTICULTURE AND FORESTRY
Appellant
VERSUS
SHANTI SWAROOP
Respondent
RSA No. 359/1999
Decided on 21-8-2009

Advocates Appeared:
For the appellant:Mr. B. S. Attri, Advocate.
For the Respondent:Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate.

Headnote:Civil Procedure Code Section 100-Regular Second Appeal - and O.6 Rules 14 and 15 and O.3, Rule 2 Right and title to land - Adverse possession. The Ld. Courts below have passed decree in favour of respondent-plaintiff upholding his right and title to the land in question on the basis of jamabandis of different years and rejected the plea of non-verification and non-signing of plaint-Held that the presumption of truth is attached to the jamabandis for the years 1979-80 and 1984-85 which shows that the suit land is in ownership and possession of the predecessor-in-interest of the plaintiff - Defendant has not proved by leading any tangible evidence that before recording the possession in favour of the University in the jamabandi for the year 1991-92 any notice was issued to the plaintiff or his predecessor-in-interest - Further the defendant has not led any evidence to prove the plea of adverse possession Further held that as far signing of the plaint is concerned O.3, Rule-2 of the CPC are not attracted- O.3 rule 2 of the CPC apply in a different domain - R.S.A dismissed. (See also page 30 ante.)

       (Paras 9, 18, 19 and 20)

JUDGMENT

Rajiv Sharma, Judge.-This Regular Second Appeal has been directed against the judgment and decree dated 30.6.1999 passed by the learned District Judge, Solan in civil appeal No. 7-S/13 of 1999.

2. Brief facts necessaryfor the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit against the appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) alleging that he is owner in possession of the land comprised in Khata No.1, Khasra No. 252/87 measuring 1 bigha 5 biswas situated in Mauza Ded, Hadbast No. 446, Tehsil Kandaghat, District Solan. It is further alleged that in the year 1992 settlement took place in the area and Khasra No. 252/87 was given new Khasra No. 73. The land was previously owned and possessed by Bhairon Dutt and Nek Ram to the extent of one half share and Devi Prashad, predecessor-in-interest of the plaintiff to the extent of one half share. However, the father of the plaintiff was in exclusive possession of the entire suit land. He succeeded to the property owned by Devi Prashad. The partition took place between the parties and the land was divided between the co-sharers. The plaintiff has challenged the revenue entries. The suit was contested by the defendant by filing a written statement. It is contended by the defendant that the University was in possession of the suit land and the plaintiff or his predecessor-in-interest had no right, title or interest in the same. The suit was decreed by the learned Sub Judge 1st Class, Kandaghat on 18.11.1998. The defendant-University preferred an appeal before the learned District Judge, Solan. She dismissed the same on 30.6.1999. The Regular Second Appeal has been directed against the judgment and decree dated 30.6.1999. The same was admitted on the following substantial questions of law:

1. “Whether the suit (plaint) is liable to be rejected under order 6 rule 14 and 15 CPC as the plaint is neither singed nor verified by the plaintiff nor the said defect has been cured/removed by getting the suit amended?

2. Whether the brother of the plaintiff who has signed and verified the plaint can be termed as a recognized agent under order 3 rule 2 CPC without any authority or power of attorney on record?

3. Whether defendant has proved on record that it has acquired ownership of the suit land by adverse possession by proving that the possession of the defendant upon it is peaceful, actual, open, notorious, exclusive and hostile since 1932, when the Fruit Research Station came into being thereat?”

3. Mr. B.S. Attri, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable in the eyes of law. He then contended that the plaint was neither signed nor verified by the plaintiff. He has referred to order 6 rules 14 and 15 and order 3 rule 2 of the Code of Civil Procedure to buttress his submission. He also contended that his client had become owner of the land by way of adverse possession.

4. Mr. Bhupender Gupta, Senior Advocate has supported the judgments and decrees passed by both the learned courts below.

5. I have heard the learned counsel for the parties and perused the record carefully.

6. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence.

7. PW-1 Shanti Swaroop has deposed that he is owner in possession of the suit land and his name also appeared in the revenue record. It was only in the year 1991-92, the entry of the possession was made in the name of the defendant-University. According to him, neither the land was acquired by the defendant nor he gifted the same to the defendant-University. PW-3, Sunita Thakur has supported the version of the plaintiff.

8. The defendant has produced seven witnesses. DW-1 is Khayali Ram. In his cross-examina




























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