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1995 Supreme(Online)(HP) 4

HIMACHAL PRADESH HIGH COURT
D. P. Sood, J.
Kanth and Others v. Sheela Devi and Others
Civil Appeal No. 2 of 1982



The appellate court emphasized the importance of including all relevant documentary evidence in party claims related to adverse possession.

Headnote:The appeal, under Section 41 of the Punjab Courts Act, contests the dismissal of plaintiffs' suit for possession based on ownership claims. The trial indicated significant issues concerning the defendant's alleged adverse possession and jurisdiction regarding the consolidation proceedings. The court found errors in evidence consideration leading to the conclusion that the first appellate court should reassess the matter and deliver a fresh decision. The impugned judgment was set aside.

Table of Content
1. appeal concerns land possession and ownership claims. (Para 1 , 2 , 3 , 4 , 6 , 7)
2. court discusses earlier proceedings and parties' rights. (Para 5 , 8)
3. issues raised regarding the consideration of documentary evidence. (Para 9)
4. ruling emphasizes reassessment of relevant evidence. (Para 10)
5. final order to set aside judgment and remand for reassessment. (Para 12 , 13)

1. In this regular second appeal under S.41 of the Punjab Courts Act against the judgment and decree dated 18th January, 1985 passed by the learned District Judge, Hamirpur in Civil Appeal No. 2 of 1982, the plaintiffs / appellants have sought the reversal thereof.

2. The bone of contention in between the parties is land measuring one kanal comprised in Khasra No. 236/1 and Khasra No. 233/1 situate in Taka Gauna, Tappa Kohla, Teshil and District Hamirpur (hereinafter shortly referred to as the 'suit land'). Shri Shambhu Ram, one of the plaintiffs died during the pendency of this appeal and vide order dated 2nd January, 1990 passed in CMP No. 194 of 1988, his legal representative, namely, Shri Sri Kanth has been substituted in his place. Similarly, Sain Dass, one of the defendants also died during the pendency of this appeal and vide order of the even date (2-1-1990), his legal representative Nos. 1(a) to 1(e) have also been brought on record. The parties to the instant appeal are being referred hereinafter as the plaintiffs and defendants for appellants and respondents, respectively.

3. The plaintiffs filed a suit for possession of the suit land on the allegations that they are the owners thereof as per the jamabandi for the year 1967-68, but during the consolidation operations commenced in the year 1965, the defendant who is a collateral of the plaintiffs in the third degree, was recorded as a tenant under the plaintiffs and this was done in collusion with the consolidation staff and that defendant had constructed a house thereon. Allegedly, as per the plaintiffs, the opposite party (defendant), had no concern with the suit land and his possession was unlawful.

4. The defendants resisted and contested the suit by raising various preliminary objections with respect to jurisdiction because of existence of relationship of landlord and tenant between the parties, firstly, on the ground that there was relationship of landlord and tenant in between the parties inter se and secondly that the suit land had been allotted in the consolidation proceedings. On merits, it was contended that the defendant has been in possession of the suit land since 1937 when he had constructed a cow - shed on the suit land and since then continuing to be in adverse possession which has matured into title. With regard to entries in the revenue records, he has pleaded ignorance. He further contended that the suit land was contained in old khasra No. 253 measuring 1 kanal 7 marlas. During the consolidation operations also, defendant was found in possession of the suit land due to construction of the cow - shed and plaintiff had gone in appeal to the Consolidation Officer and the Consolidation Officer allotted khasra No. 233/1 to the defendant instead of khasra No. 234. Against this order of the Consolidation Officer, the defendant went in appeal to the Settlement Officer, who remanded the case vide his order dated 30-6-1968, but the Consolidation Officer decided the case against the defendant. Defendant again went in appeal, which was decided on 10-12-1970 and then khasra No. 233 / 1 was allotted to him and he also got its possession on 7-6-1972. The plaintiffs filed an appeal against the order of Settlement Officer before the Director of Consolidation of Holdings which as per the written statement was still pending and as such had no jurisdiction to try the suit.

5. Initially the trial Court framed two preliminary issues which were disposed of by its order dated 12-5-1976 which fact further gave rise to litigation before the higher Courts. Ultimately, vide order of this









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