The need for specific pleadings and proof of adverse possession to establish a claim of adverse possession.

V.K. Ahuja, J.

1. This is a Regular Second Appeal filed by the appellant against the judgment and decree of the Court of learned Additional District Judge(2), Kangra at Dharamshala, dated 18.3.1994, vide which the appeal filed by the respondents as against the appellant as against the judgment and decree of the Court of learned Sub Judge 1st Class, Dehra, dated 31.3.1992, dismissing the suit of the plaintiffs for possession and on appeal, decree for possession was passed by the learned first appellate Court.

2. Briefly stated the facts of the case are that respondents No. 1 and 2 as plaintiffs filed a suit for possession as against the original appellant, hereinafter referred to as the defendants. The allegations made by the plaintiffs were that suit land comprised in Khasra No. 309 measuring 0-05-68 Hectares (old Khasra No. 240 min) was owned and possessed by the plaintiffs before settlement. During settlement, the defendant in collusion with the settlement staff got himself recorded in possession of the suit land. The defendant forcibly dispossessed the plaintiffs from the suit land at the time of sowing of Rabi crop in 1988. The plaintiffs asked him to deliver the possession of the suit land but he refused, hence the suit filed by the plaintiffs.

3. Defendants took up various preliminary objections. On merits, it was pleaded that he has been in possession of the suit land as owner since the time of his father. In the alternative, he took up the plea that in case he is not held to be in possession of the suit land, then he has become owner thereof by way of adverse possession since his possession is open, peaceful, hostile and to the knowledge of owners continuously for more than 30 years.

4. The learned trial Court framed main issue on merit in regard to question as to whether the defendant is owner in possession of the suit land, by way of adverse possession. On conclusion of the trial, the suit for possession filed by the plaintiffs was dismissed. On appeal, those findings were reversed by the learned first appellate Court.

5. I have heard the learned Counsel for the parties and have also gone through the record of the case.

6. The appeal was admitted by this Court on three substantial questions of law.

7. During the course of arguments, the learned Counsel for the defendant/appellants submitted that there is no proof of possession having been delivered in pursuance of the decree of pre-emption suit and only the mutation was entered on the basis of the decree passed in pre-emption suit but since the possession was never taken from the defendant or his father by the plaintiffs, the defendant continued in possession of the suit land. It was submitted that the possession of the defendant was found during settlement on actual measurement and, therefore, the defendant was proved to be in possession of the suit land in his own right and as such, the findings of the learned first appellate Court decreeing the suit for possession in favour of the plaintiffs are not based upon correct appreciation of facts and law.

8. On the other hand, the learned Counsel for the respondents/plaintiffs submitted that the defendant had never pleaded as to when he came in adverse possession, from which date and from which date his possession became adverse as against the true owners and since they have proved that the possession was taken by the defendant after they got possession in the pre-emption suit, the suit of the plaintiffs was rightly decreed by the learned first appellate Court.

9. I may mention here that the perusal of the record of the case shows that initially the suit land was owned by one Shri Narayan who sold it to the father of the defendant Roshan Lal, namely Nath. A suit for possession of the land by way of pre-emption was filed by Roshan Lal, plaintiff, which was decreed but according to the defendant's assertions, the suit land remained with Nath and after his death with defendant who is accordingly the owner of the suit land. A