Whether approved for reporting?¹Whether reporters of Local Papers may be allowed to see the judgment? Yes. No

Rakesh Kainthla, Judge

The present appeal is directed against the judgment and decree dated 04.06.2008 passed by learned Additional District Judge Ghumarwin, District Bilaspur, H.P. (learned Appellate Court) vide which the judgment and decree passed by learned Civil Judge (Jr. Division), Ghumarwin, District Bilaspur, H.P. (learned Trial Court) were upheld. (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 seeking a declaration that he is the owner in possession of the land comprised in Khata Khatauni No. 1/1, Khasra Nos. 95, 113 and 117, measuring 1-4 bighas situated in village Ghumani, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the suit land), and the mutation dated 27.02.1989 is wrong and illegal. A permanent prohibitory injunction for restraining the defendants from interfering with the plaintiff’s possession was also sought. A relief of mandatory possession was also sought in case the defendants succeeded in dispossessing the plaintiff from the suit land during the pendency of the suit. It was asserted that the plaintiff is the owner in possession of the suit land. He never inducted the defendants or their predecessor as tenants of the suit land. However, they are recorded as tenants in the revenue record. These entries are wrong and do not bind the plaintiff.

The father of the defendants, late Sh. Nand Lal had applied for the conferment of the proprietary right. The application was rejected on 25.05.1988. Nand Lal had made a statement before the learned AC 2nd Grade Ghumarwin that he was not paying any rent to the plaintiff. The defendant's father got a mutation attested in his favour on 27.02.1989, in which he was declared the owner in possession of the suit land. This mutation is wrong, illegal, and not binding on the plaintiff. The defendants started interfering with the plaintiff’s possession on the basis of the revenue record. Hence, the suit was filed for seeking 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 suit having not been properly valued for court fees and jurisdiction, and the plaintiff being estopped to file the suit by his act and conduct. The contents of the plaint were denied on the merits. It was asserted that the father of the defendants had encroached upon the suit land on 10.11.1947 and sowed a wheat crop on the suit land. He remained in continuous, open and peaceful possession of the suit land till his death. The defendants continued to be in possession after the death of their father. Their possession is continuous, open and peaceful, and they have become the owners by way of adverse possession. The name of the father of the defendants was recorded as a tenant in the copy of the missal haqiyat for the year 1957-58, which was prepared after due enquiry in the consolidation proceedings. Nand Lal had not made any statement, even though it was correct that he or the defendants had not paid any rent to the plaintiff or any other person. Hence, it was prayed that the suit be dismissed.

4. The defendants also filed a counterclaim asserting their adverse possession and seeking a declaration that they had become the owners by virtue of adverse possession of the suit land.

5. A replication denying the contents of the written statement and affirming those of the plaint was filed. The contents of the counterclaim were also denied, and it was prayed that the counterclaim be dismissed.

6. The following issues were framed by the learned Trial Court on 10.04.2002 and 05.01.20