The main legal point established is the requirement for formal proof of documents and the inadmissibility of evidence without the primary evidence.

Surinder Singh, J.

1. The present Regular Second Appeal has been filed by the defendants under Section 100 of the Code of Civil Procedure against the judgment and decree of the learned Additional District Judge in Civil Appeal No. 49 of 2003 decided on 24.9.2004 whereby he affirmed the findings of the learned trial Court in Civil Suit No. 69 of 2002 of 1996 dated 30.9.2002.

2. The appeal was admitted on the following substantial questions of law:-

(i). Whether the plea taken by the appellants in the proceedings before the collector in the year 1974 that they are the exclusive owners in possession of the suit property amounted to the plea of ouster of the plaintiffs, serving as foundation to the plea of adverse possession?

(ii). Whether the trial Court had the pecuniary jurisdiction to try and decide the suit?

3. In short, the facts giving rise to the present appeal can be stated thus. Respondents No.1 to 5 herein were the plaintiffs before the learned trial Court. They had filed suit against the appellants and proforma respondents hereinafter referred to as ‘the defendants’ to the effect that the suit land comprised in khata khatauni No. 876/192 to 196 kita 6 measuring 2-7-13 bighas situated in village Mumail Tehsil Karsog District Mandi, H.P., hereinafter referred to as the ‘suit land’, was in joint ownership and possession of the parties to the suit as it being un-partitioned land. They claimed 1/3rd share in the suit land and contended that their application for partition was wrongly dismissed by the Assistant Collector st Grade Karsog on 8.3.1994 on the ground that the question of title was involved. One of the plaintiffs had also filed similar application seeking partition in the year 1976 which was also dismissed on the same ground. Since the defendants did not want the partition of the land despite having been asked thus, the declaration was sought that the suit land is still unpartitioned and joint inter se and the plaintiffs are entitled to seek partition through the process of law to the extent of their share.

4. The appellants, sons of Purshotam were contesting defendants before the learned trial Court laid strong resistance to the suit. According to them, a family partition had already taken place about six years back, to this effect a writing was also executed. After the partition, Shri Purshotam, predecessor of defendant No. 4 Shri Roshan lal applied for nautor as such khasra No. 485 was sanctioned to him. After his death Roshan Lal defendant succeeded to the said land but due to some error, thus land was mutated in favour of Manu and Lachman predecessors of defendants No. 1 to 3 and 5 to 10 as well as plaintiffs, hence these entries were incorrect. Further, according to them, the earlier applications for partition were dismissed by the revenue Court as the question of title had arisen. The appeal was also dismissed by the Sub Divisional Collector and in the alternative prayed that in case it is proved that khasra No. 485 is joint inter se the parties, in that event, defendant No. 4 has acquired title by way of adverse possession.

5. Other defendants admitted the claim of the plaintiffs by their separate written statements affirming the possession that the suit land was joint inter se them and they have no objection in granting the decree to the plaintiffs as sought for.

6. On the pleadings of the parties the learned trial Court framed following issues:-

1.Whether the suit land is joint un-partitioned and the plaintiffs are entitled to get 1/3rd share out of it? OPP.

2. Whether the private partition has taken place between the forefather of parties if so its effect? OPD.

3. Whether the father of the defendant No.4 has acquired the khasra No. 485 as nautor land after family partition and the same is his separate land, if so its effect? OPD.

4. Whether defendant No. 4 has become owner of the suit land by way of adverse possession as alleged? OPD.

5. Whether the plaintiffs are estopped to file the suit as a