Second appeals under CPC S.100 do not permit re-appreciation of evidence; concurrent findings upheld absent perversity or substantial question of law. Adverse possession claim fails without rebutting revenue records presumption and proving possession. Additional evidence requires due diligence.

Romesh Verma, J.

The present appeal arises out of the judgment and decree, passed by learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P. dated 20.10.2010, whereby the appeal filed by the present appellant was dismissed and the judgment and decree, passed by the learned Civil Judge (Senior Division), Court No.2, Mandi, District Mandi, H.P. was affirmed.

2. The parties hereinafter shall be referred to as the plaintiff and defendants.

3. The present appeal was listed for final disposal at the admission stage. Both the parties agreed that following substantial questions of law arise for determination in the present appeal:

1. Whether the impugned judgment and decree as passed by the learned Presiding Officer, Fast Track Court, Mandi, H.P. and judgment and decree as passed by the Civil Judge (Sr. Division), Court No.2, Mandi, District Mandi, H.P. are the result of misreading, misappreciation and misrepresentation of the oral as well as documentary evidence placed on record?

2. Whether the First Appellate Court was justified in dismissing the application under Order 41 Rule 27 of CPC filed by the appellants as a result of which the great prejudice has been caused to them?

4. The appeal is admitted on the aforesaid substantial questions of law for its determination and consideration. With the consent of the parties, the case was taken up for final hearing. I have heard learned counsel for the parties at length and perused the record.

5. The brief facts of the case are that plaintiff filed a civil suit for declaration and injunction as a consequential relief under Sections 38 and 34 of the Specific Relief Act against the defendants. It was averred in the plaint that the land comprised in Khewat No. 106 min, Khatauni No. 121 min, Khasra No. (old) 573/468/212 and changed Khasra No. 224, measuring 0-15-2 bighas, situated in Muhal Nela, No. H.B. 342, Tehsil Sadar, Distt. Mandi, H.P.(hereinafter to be referred to as the ‘suit land’) as per copy of the jamabandi/missal haqiat for the year 1997-1998 is recorded under the ownership and possession of the defendants. The said entries are wrong, illegal, incorrect and contrary to the factual position of the spot. It was stated in the plaint that the suit land was previously in peaceful possession of the father of the plaintiff since the year 1964 and despite this defendant by misrepresentation of facts and without the knowledge of the father of plaintiff managed to get the suit land sanctioned in his favour vide File No.109, dated 05.12.1975, decided on 29.12.1975 from the Tehsildar, Sadar, Mandi by way of Nautor and later on mutation No. 167, dated 11.07.1977 has also been attested in his favour, but no possession of the suit land was obtained by the defendant from the revenue agency through the process of law.

6. It was alleged in the plaint that the possession was never delivered to the defendant by the revenue agency and, on the other hand, the father of the plaintiff continued to be in an exclusive possession of the suit land till his death. It was further stated that the defendant on 13.09.1986 made an attempt to forcibly plough the suit land and to dispossess the plaintiff, but his attempt was foiled by the plaintiff. Thereafter, the defendant did not take any steps to obtain the possession and thereafter, the possessi