The necessity of proving adverse possession and tenancy rights in a suit against the government, and the presumption of government ownership of unoccupied lands.

Surinder Singh, J. (Oral) The present Regular Second Appeal under Section 100 of the Code of Civil Procedure was admitted on the following substantial question of law: (i) Whether the suit of the plaintiff-appellant could have been dismissed even for the relief of injunction if she was in possession of the suit property except in due course of law?

2.Briefly stated, the facts giving rise to the present appeal are that appellant hereinafter referred to as ‘the plaintiff’ filed suit seeking declaration with a consequential relief of injunction against the respondent-State with respect to the suit land comprised in khasra No. 22 measuring 2.11 bighas and 26 ( 0.2 biswas) situated in village Kusari Pargana and Tehsil Nalagarh district Solan, H.P. in short ‘the suit land’ on the ground that she is owner in possession of the suit land w.e.f. 1960. She re­claimed the aforesaid land and her entry showing her to be the tenant is contrary to the factual position and in fact, she become owner of the suit land comprised of Khasra No. 22 aforesaid by way of adverse possession as her possession has been peaceful, continuous, uninterrupted, open and hostile to the knowledge of the real owner. It is also contended that she was paying rent to the previous owner with respect to 0.2 biswas of land comprised in khasra No. 26 for running a ‘gharat’ (water mill) which she inherited on the death of her husband. Thus qua khasra No. 26, she became owner under the H.P. Tenancy and Land Reforms Act, 1974 as this was being held by her as the non-occupancy tenant. Since she had been in possession of the suit land, thus she also claimed injunction.

3.The suit was resisted and contested by the defendant-State raising preliminary objections by filing written statement with respect to the maintainability of the suit, service of notice, lack of cause of action and also jurisdiction. Further the locus-standi of the plaintiff has also been challenged.

4.On merits, adverse possession is denied and it is contended that the plaintiff manipulated her entry as non-occupancy tenant with respect to khasra No. 26 measuring 2 biswas in connivance with the revenue staff. As a matter of fact, the suit land was vested in the Gram Panchayat under the provisions of Punjab Common Land (Regulation) Act and after coming in to force the H.P. Common Lands (Vesting and Utilization) Act, 1974, the State became its owner. The plaintiff has been trying to take benefit of wrong entry made in the revenue record, hence a prayer was made to dismiss the suit.

5.In replication, plaintiff denied the preliminary objections, however, re-affirmed the even paras on merits.

6.On the pleadings of the parties, trial court framed following issues:- (i)Whether the plaintiff has become owner by way of adverse possession of khasra No. 22 measuring 2 bighas 11 biswas ? OPP. (ii)Whether the plaintiff become owner under the provisions of H.P. Tenancy and Land Reforms Act in respect of khasra No. 26?OPP (iii)Whether suit is not maintainable? OPD (iv) Whether the plaintiff has no locus standi to file the present suit? OPD. (v) Whether this suit is bad for want of notice? OPD. (vi) Whether this court has no jurisdiction to hear and entertain the present suit? OPD. (vii) Relief.

7.The plaintiff only examined herself as PW1 and stated that the water mill is on khasra No. 26 measuring 2 biswas for the last about 60 years regarding which she was paying rent of ‘50 paise and the other portion of the suit land is in her possession for the last 40/45 years which was re­claimed by her and some portion is in the shape of ghasni (grassy land). She also stated that there was no interference in her possession by the State. She could not produce any receipt of the rent with respect to 2 biswas of land where the ‘gharat’ was running. She further stated in cross-examination that one and a half bighas of land is barren but this portion is used by her to graze the cattle.

8.As against it, defendant-respondent examined DW1