Permissive possession does not mature into adverse without hostile animus known to owner and proof of continuous, open denial of title for 12 years; no re-appreciation of concurrent factual findings in second appeal.

JUDGMENT :

Romesh Verma, J.

The present regular second appeal arises out of judgment and decree as passed by the learned Additional District Judge, Sarkaghat, District Mandi, H.P. dated 6th November, 2024, whereby the appeal preferred by the present appellant has been ordered to be dismissed and the judgment and decree as passed by learned Civil Judge, Court No.2, Sarkaghat, District Mandi, H.P. dated 22nd June, 2022 has been affirmed.

2. Brief facts of the case are that the plaintiff/respondent Chaman Lal filed a suit for possession against the defendant/appellant in the Court of learned Civil Judge, Court No.2, Sarkaghat, District Mandi, H.P. on 19.01.2013. It was stated in the plaint that the suit land comprised in Khata/Khatauni No.53/60, containing Khasra No.897/118, land measuring 00-00- 68 Hectares, situated in village Balhra illaqua Hatli Sub Tehsil Baldwara, District Mandi, H.P. is exclusively owned and possessed by the plaintiff. It was stated that the plaintiff and his brother jointly constructed the house over the suit land in 1992-1993. Further, it has been averred that the plaintiff and his brother, namely, Jagtar Singh gave the house situated over the suit land to the defendant, who happens to be their real brother and he is BAMS doctor for doing practice for some time. Further, it has been stated that after some time the defendant got a government job but surprisingly he did not vacate the house situated over the suit land being owned by the plaintiff with an intention to grab the house of the plaintiff. The plaintiff and his brother Jagtar Singh are residing in village Balhra in their parental house, whereas the disputed house is situated just adjacent to the road. Though, a request was made to the defendant to vacate the house in question, however, he did not pay any heed and refused to the same. Therefore, under such circumstances, the plaintiff filed a suit for vacant possession of the suit property.

3. The suit was contested by the defendant by taking various objections such as limitation, valuation, court fee, jurisdiction, cause of action, estoppel and maintainability etc. The defendant refuted the revenue entires showing the plaintiff to be owner-in-possession of the suit land in the revenue records. He submitted that he had constructed the house over the suit land in the year 1990-1991 and since then he is residing in the said house as a owner. He further averred that he came in possession of the house on 15.07.1990 and started the construction of his house over the suit land. He raised a plea that the possession over the suit land by the defendant is open, hostile, naked and in the knowledge of the plaintiff since 15.07.1990. Therefore, he has become owner of the suit property by virtue of adverse possession. It was also stated that ejectment proceedings under Section 163 of the HIMACHAL PRADESH REVENUE ACT were initiated against the plaintiff for his ejectment from the suit land. The Assistant Collector 1st Grade passed the eviction order against the plaintiff, however, feeling dissatisfied, the plaintiff preferred an appeal before the Sub Divisional Collector, Sarkaghat. It was submitted that said appeal was dismissed and thereafter the plaintiff preferred a revision before the Divisional Commissioner, Mandi ag