The court emphasized that the claim of adverse possession must be proven, and the requirements for invoking the equitable doctrine of part performance under Section 53-A of the Transfer of Property Act were discussed.

V.K. Ahuja, J.

This is a regular second appeal filed by the appellant under section 100 C.P.C. against the judgment and decree, dated 16.11.2002, passed by the learned Additional District Judge, Shimla, vide which he affirmed the judgment and decree, dated 13.9.2001, passed by the learned Sub Judge, Court No.2, Rohru, District Shimla, H.P., decreeing the suit of the respondent for possession as against the appellant.

2. Briefly stated, the facts of the case are that the respondent, hereinafter also referred to as the plaintiff, filed a suit for possession as against the appellant, hereinafter also referred to as the plaintiff. It was alleged by the plaintiff that he had purchased the suit land comprised in khasra No.977, 978, 1067/1065 from one Sunpur in the year 1976 vide registered sale deed. The plaintiff was employed in Indian Army and the defendant, in his absence, took possession of the disputed land. It was further alleged that one of the khasra No.87 (new) is shown in possession of the defendant, but the same is in possession of the plaintiff as an orchard. The plaintiff requested the defendant to hand over the possession but he refused. Thereafter, the plaintiff filed a suit but the same was withdrawn on some formal defect vide order dated 8.8.1996. The plaintiff filed the suit thereafter for possession.

3. Defendant contested the suit on maintainability etc. On merits, he took up the plea that Sunpur had no legal right to alienate the suit land in favour of the plaintiff since he had already sold the land to the defendant vide document dated 29.6.1976, with possession. He also pleaded that in part performance under Section 53-A of the Transfer of Property Act, he is in possession of the suit land. He also took up the plea in the alternative that the plaintiff’s possession became adverse to the defendant and as such he is owner in possession of the suit land.

4. On the pleadings of the parties, the following issues were framed by the learned trial Court:

“1. Whether the plaintiff is entitled to the relief of possession as prayed for? OPP

2. Whether the suit is not maintainable in the present form as alleged? OPD

3. Whether the suit is hit by provision of section 53-(A) of TPA as alleged?

4. Whether the plaintiff is estopped from filing the present suit on account of his acts, deeds and conduct? OPD

5. Whether the suit is barred by limitation as alleged? OPD

6. Whether the suit is not valued properly for the purpose of court fees and jurisdiction? OPD

7. Relief.”

5. Parties led their evidence and the learned trial Court vide its impugned judgment, decreed the suit of the plaintiff in full. On appeal, those findings were upheld by the learned Additional District Judge.

6. The appeal was admitted by this Court on the following substantial questions of law:

“1.Whether the claim of the respondent for seeking possession of the suit land is bared by limitation inter alia for the reason that the appellant has been coming in possession of the suit land since 1976 claiming himself to be owner of this land on the basis of sale and entries in the revenue record Ext.PW-1/A for the year 1982-83 and in the subsequent entries prepared during the settlement operation. Also appellant having been recorded as owner due to sale, therefore, the suit was required to be dismissed.

2. Whether in view of Ext.PW-1/C, whereby suit was withdrawn, since the respondent failed to pay the cost and comply with the terms of this compromise, therefore, second suit was not maintainable?”

7. I have heard the learned counsel for the parties and have gone through the record of the case.

8. The submissions made by the learned counsel for the appellant were that the defendant is in possession since long on the basis of agreement to sell Ext.PW-2/A, writing dated 21.6.1976. The learned trial Court has rightly reproduced the three pre requisites for invoking the equitable doctrine of part performance in paragraph 10 of its judgment, which are reprodu