A claim of adverse possession cannot be sustained if possession stems from an agreement to sell, which legally acknowledges the owner's title.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment & decree dated 1.4.2022, passed by the learned District Judge (Forests), Shimla, H.P., Camp at Rohru, vide which the appeal filed by the present respondent (plaintiff before the learned Trial Court) was allowed and the judgment and decree passed by the learned Civil Judge (Senior Division), Court No. 1, Rohru, District Shimla, was set-aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking vacant possession of the suit land mentioned in para-1 of the plaint by removing apple plants. It was also prayed that the entry in the revenue record regarding ‘Davedar Bai’ be declared null and void. It was asserted that the suit land was allotted to the father of the plaintiff in a family partition. The plaintiff inherited the estate of her father and became the exclusive owner of the suit land. She collected the revenue record to raise a loan from the bank and found that the suit land was recorded in possession of the defendant as ‘daveder bai’. The plaintiff demanded the possession of the suit land from the defendant. The defendant assured to hand over the vacant possession but failed to do so; hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by filing a written statement, taking preliminary objections regarding lack of maintainability and cause of action, the suit being bad for non-joinder of necessary parties, the plaintiff being estopped to file the present suit due to her act, conduct and acquiescence, improper valuation and the defendant having become the owner by way of adverse possession. The contents of the plaint were denied on merits. It was asserted that Mainee (father of the plaintiff) sold the land to the defendant for a consideration of Rs.500/- on 15.6.1977. Rs.420 were paid on the date of sale and Rs.80 were paid on 28.5.1980. Mainee signed a document by putting his thumb impression. He delivered the possession to the defendant on 15.8.1977. The defendant is in possession as owner of the suit land. The plaintiff is residing in the vicinity of the suit land. She never asserted her title. The plaintiff visited the house of the defendant in 1994 and requested her to execute the sale deed. However, the defendant’s husband had met with an accident and was under treatment from 1986 to 1998; hence, the sale deed could not be executed. The plaintiff came to the house of the defendant to execute the sale deed in March, 1998 but the defendant requested her to wait till the recovery of her (defendant’s) husband. The plaintiff again visited the house of the defendant in September, 2013 and requested the defendant to execute the sale deed. However, the sale deed could not be executed because the correction was required in the revenue record. The defendant told the plaintiff that she had acquired the title by way of adverse possession in March, 1998. The defendant had planted fruit-bearing apple trees which are more than 33 years old, hence, it was prayed that the suit be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. The learned Trial Court framed the following issues on 23.5.2015:-

1. Whether the plaintiff is entitled for the possession of the suit land, as claimed? OPP.

2. Whether the revenue entr