The main legal point established in the judgment is the requirement of hostile possession in adverse possession claims and the ability of a co-owner to sue a trespasser for possession on behalf of all co-owners.

Surinder Singh, J (oral).

The present Regular Second Appeal has been filed by the defendant having felt aggrieved and dissatisfied by the judgment of reversal by the first appellate Court, which was admitted for hearing on the following substantial questions of law:-

“1. Whether the judgment and decree passed by the learned Appellate Court is the result of misreading, misinterpretation as well as mis-appreciation of the evidence led by the parties especially in view of the admission of the plaintiff and his witness Rajinder PW-2 who have admitted that the defendant No.1 is in settled possession of the suit land?

2. Whether the learned Lower Appellate Court is right in allowing the appeal when the learned Trial Court had dismissed the suit for non-joinder of necessary party, in view of the judgment passed by this Hon’ble Court reported in AIR 1981, HP-20?”

2. In brief the facts giving rise to the present appeal can be stated thus. Respondent Megh Chand, hereinafter to be referred as the “plaintiff” has filed a suit against the appellant, now referred as the “defendant” for possession qua the suit land based upon his title and also sought mandatory injunction directing the defendant to remove the apple plants therefrom. In fact, as per revenue records i.e. Misal Hakiat Bandobast Jadid Ext.P1 and Jamabandi for the years 1983-84 Ext.P2, the suit land was owned by the plaintiff, Shri Narayan Chand, (predecessor’s-in-interest of proforma respondent Balbir Singh), Kalag Ram, Roop Chand, Smt. Negpatti and Jaipatti and recorded in the possession of the plaintiff as a co-sharer. The plaintiff claimed that the suit land fell in his share in a family partition and two years before filing the suit, during the settlement operation he came to know about the revenue entries, thus, he requested the defendant aforesaid to hand over the possession of the suit land to him, to which he refused rather he claimed his ownership over the land. Thereafter the plaintiff sought demarcation from the Assistant Collector 2nd Grade (Naib-Tehsildar), but the defendant did not hand over the possession, rather planted about six trees of apple despite objection by the plaintiff, hence, the plaintiff sought the possession of the land as aforesaid.

3. The suit was resisted and contested by defendant Shishi Ram. He took preliminary objections of estoppel, valuation, limitation and bad for non-joinder of necessary parties i.e. Smt. Shwal Dei widow of Narayan Chand. On merits, the defendant claimed his possession over the suit land for the last about 100 years since his forefathers. According to him, he had been cultivating and growing the food-grains there upon. The suit land was abutting to his ownership land. It is also his case that about 40 years back, an apple orchard was raised by him out of which only two plants exist and other had decayed, however new plantation was done which is now ranging from 5 to 13 years. Beside this, there has been one Chuli and three Kunch trees on the boundary thereof. Neither the plaintiff nor his predecessor’s-in-interest objected to his possession. Lot of money was spent on its development. It is also averred that he got the exclusive possession of this land at the time of partition with his brother on 12.1.1978 and the partition deed was prepared in the presence of the plaintiff, since then he is in peaceful possession thereof and as such he had become the owner of the land by way of adverse possession.

4. In replication, the preliminary objections were denied and even paras on merits were reasserted. On the pleadings of the parties, the following issues were framed:-

1. Whether the plaintiff is entitled to a decree for possession and for mandatory injunction as prayed for? …OPP.

2. Whether the suit has been properly valued, if not, what is the correct valuation? …OP Parties.

3. Whether the suit is bad for non-joinder of necessary parties? …OPD.

4. Whether the plaintiff is estopped by his act, deeds and conduct from filing the sui