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HIMACHAL PRADESH HIGH COURT
Dharam Chand Chaudhary, J.
Mastu Devi and Ors. —Petitioners
versus
Chet Ram and Ors. —Respondents
RSA No.505 of 2002
Decided on 3.3.2016

Advocates:
Counsel for the Parties:
For the Petitioners:Mr. Sunil Mohan Goel, Advocate
For the Respondents:Mr. G.R. Palsra, Advocate

Headnote:(a) Adverse possession – Plea of adverse possession cannot be raised as sword but only as a shield – Therefore the plaintiff cannot base his claim for title on basis of adverse possession. (Para 15)

       (2014) 1 SCC 669; HLJ 2016 (HP) – Relied upon

       (b) Adverse possession – Plaintiffs in possession of the suit land since 1982 – Partition in 1995 during consolidation proceedings – Shares as per partition handed over to respective share holders – Till partition each co- sharer had joint possession over the suit land – Plaintiffs not having adverse possession. (Para 21, 22)

       AIR 1971 SC 376; AIR 2001 SC 700 – Distinguished

       Result: Appeal dismissed.

JUDGMENT (ORAL)

Dharam Chand Chaudhary, J.—Plaintiffs are in second appeal before this Court. They are aggrieved by the judgment and decree dated 5.9.2002, passed by learned District Judge, Mandi, in Civil Appeal No.21 of 2000.Learned District Judge on reversal of the judgment and decree passed by learned Sub Judge, 1st Class, Court No.1, Mandi, in Civil Suit No.323/1996, has allowed the appeal and did not incline to grant the declaration that the plaintiffs are owners in possession of the suit land and also that the entries in the revenue record showing the respondents, hereinafter referred to as ‘the defendants’, as co-owners in possession thereof are wrong and illegal, hence not binding upon them. The suit as such was dismissed. The plaintiffs were also not held entitled to the decree for injunction against the defendants.

2. The subject matter of dispute in the present lis is land entered in Khewat No.49, Khatauni No.85, Khasra Nos.699, 705, 711, 707, 715, 716, 724, 726, 730, 737, 743, 747, 782, 787, 790, 792, 794, 797, 800, 805, 809, 804, 814, 816, 819, 821, 823, 825, 827, 830, 836, 838, 840, 841, 843, 848, 852, 875, 884, Kitas 39, measuring 15.1.18 Bighas and land entered in Khewat No.49, Khatauni No.87 min, Khasra No.822, measuring 0.8.19 Bighas, situate in village Tikkri, Hadbast No.40, Illaqua Movi Seri, Tehsil Chachiot, District Mandi.

3. The plaintiffs claim themselves to be exclusive owners in possession of the suit land. The entries in the Jamabandi for the year 1991.92 Ext.PA, have been relied upon to substantiate this part of their case. The case of the plaintiffs is that they are in exclusive, open, peaceful, continuous, hostile, uninterrupted and notorious possession of the suit land since October, 1982 to the knowledge and notice of the defendants and their predecessors-in-interest. Therefore, while pleading complete ouster of the defendants from the suit land, it has been claimed that they have acquired title therein by way of adverse possession. The entries in the Jamabandi for the year 1995.96 Exts.DW1/A to Ext.DW1/G, showing the defendants to be co-owners in possession of the suit land are stated to be wrong illegal, hence null and void. According to plaintiffs, the defendants taking undue advantage of such entries in the revenue record have started causing interference in the suit land. Hence, the suit for declaration to the effect that the plaintiffs have acquired title in the suit land by way of adverse possession and as such have now become absolute owners thereof. The entries to the contrary in the revenue record are wrong, illegal, incorrect and void ab initio. Additionally, a decree for permanent prohibitory injunction, restraining the defendants from causing interference with the peaceful possession of the plaintiffs over the suit land has also been sought.

4. The defendants, in preliminary, have raised objections qua jurisdiction of the Civil Court to try and entertain the suit, maintainability thereof and that the plaintiffs have no enforceable cause of action and locus-standi to file the suit. On merits, it is denied that the plaintiffs are exclusive owners in possession of the suit land since October, 1982.It is submitted that since the suit land was in possession of the plaintiffs in the capacity of co-sharers, therefore, their possession over the same was on behalf of each and every co-sharer. Now, on partition during the consolidation operation carried out in the area, where the suit land is situated, each and every co-sharer has been given the possession of land allotted to him in partition. The entries in the revenue record showing the plaintiffs and defendants as joint owners of the suit land are correct, hence need not be changed. The suit has, therefore, been sought to be dismissed.

5. On the pleadings of the parties, the following issues were framed:—

1. Whether the plaintiffs have become absolute owners of the suit land by virtue of adverse possession, as alleged? OPP.

2. If issue No.1


































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