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Docid # IndLawLib/1139387
(2012) 1 HimLR 175
HIMACHAL PRADESH HIGH COURT
SINGLE BENCH

STATE OF HIMACHAL PRADESH — Appellant

Vs.

BUDHIA — Respondent
( Before : Rajiv Sharma, J. )
RSA No. 101 of 2002
Decided on : 16-09-2011

Civil Procedure Code, 1908 (CPC) - Section 100

Counsel for Appearing Parties

R.P. Singh, Asstt. A.G, for the Appellants; Shikha Thakur, Advocate, vice K.S. Kanwar,
Advocate, for the Respondents

JUDGMENT

Rajiv Sharma, J. - This Regular Second Appeal is directed against the judgment and decree
dated 7.11.2001 rendered by the learned District Judge, Sirmaur District at Nahan in Civil
Appeal No.39-CA/13 of 2001.
2. Material facts necessary for the adjudication of this Regular Second Appeal are that the
respondents-plaintiffs (hereinafter referred to as `plaintiffs' for convenience sake) instituted
a suit against the appellants-defendants (hereinafter referred to as `defendants' for
convenience sake) for declaration. According to them, they had been coming in possession
of the suit land, detailed in the plaint, since 1998-1999 B.K. Sambwat. Their possession
was earlier duly recorded in revenue records as open, hostile, continuous, uninterrupted
without hindrance of any person and to the knowledge of the defendants. According to
them, they have perfected their title by way of adverse possession over the suit land.
Defendant No.2, i.e. Divisional Forest Officer, Forest Division, Renukaji, District Sirmaur
in collusion with defendant No.1, i.e. Collector, Sirmaur District has got the names of the
plaintiffs deleted from the column of kaifiyat No.19 of Khasra Girdawari vide order dated
20.1.1984 passed by the Collector, Sirmaur District at Nahan without the knowledge of the
plaintiffs in an illegal manner and incorporated illegal entries in the copy of jamabandi for
the year 1986-87. According to them, the names of the plaintiffs are recorded in the column

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of possession upto 1984. The plaintiffs have served notice under section 80 of the Code of
Civil Procedure upon the defendants.
3. Suit was contested by the defendants by filing joint written statement. Defendants took
several preliminary objections, namely, the civil court has no jurisdiction in view of section
171 of the H.P. Tenancy and Land Reforms Act. It was also contended that the suit was bad
for non-joinder of necessary parties and the plaintiffs were estopped from filing the suit
due to their act and conduct. According to them, the suit was barred by limitation and it
was not properly valued. On merits, it was contended that the District Collector, Sirmaur
had issued instructions vide order dated 20.1.1984 for checking the revenue entries and to
make the records of right according to the factual position prevailing on the spot.
Consequently, the Patwari Mauza Kajwa vide rapat roznamcha dated 15.2.1984 while
inspecting the fields found the entries of khasra No. 312 against the factual position on the
spot and deleted the illegal revenue entries. According to them, plaintiffs under the garb of
these illegal entries have recently encroached upon the Government land and as such their
possession was of encroachers and they were liable to be evicted. It was denied that the
plaintiffs have become owners by way of adverse possession. Learned Senior Sub Judge
framed issues on 6.5.2000. He decreed the suit of the plaintiffs. Defendants preferred an
appeal before the learned District Judge. He dismissed the same on 7.11.2001. Hence, the
present Regular Second Appeal. It was admitted on the following substantial questions of
law on 11.7.2002:
1. Whether the findings recorded by the trial court as affirmed by the learned first
Appellate Court are de hors the evidence and perverse?
2. Whether the evidence produced by the plaintiffs was in variance to the pleadings, if so,
its effect?
4. Mr. R.P. Singh, learned Assistant Advocate General has strenuously argued that both the
courts below have misread and mis-appreciated the oral as well as documentary evidence.
According to him, there is no illegality whereby the revenue entries have been altered on
the basis of orders passed by the Collector, Sirmaur District on 20.1.1984. He then argued
that the plaintiffs have failed to prove the ingredients of adverse possession.
5. Ms. Shikha Thakur appearing vice counsel for the plaintiffs has supported the judgments
and decrees passed by both the courts below.
6. I have heard the learned counsel for the parties and have perused the record carefully.
7. Since both the substantial questions of law are interconnected and interlinked, therefore,
the same were taken up together for determination to avoid repetition of discussion of
evidence.
8. Plaintiff Budhia has appeared as PW-1. According to him, the suit land measuring 4
bighas was in their possession, which was uninterrupted, hostile and continuous on the
spot. They were cultivating the suit land. According to him, one and half year ago, they
came to know from the forest officials that their names qua the possession of suit land have
been deleted. The forest department has threatened them to dispossess forcibly. They
verified the facts from the Patwari, who told them that their names qua the possession of
the suit land have been illegally deleted. They had issued statutory notice upon the
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defendants. According to him, the suit land was broken by them and it was made
cultivable. He has denied the suggestion that the land was not cultivable on the spot and it
was in the shape of `Jungle-Jhari'. He denied the suggestion that the suit land was in
possession of the State of H.P. Forest Department. No suggestion was given to him
whether the plaintiffs were heard before their names were deleted from the records of right
qua possession.
9. PW-2 Ran Singh has supported the version of PW-1. According to him, the suit land was
coming in cultivatory possession of the plaintiffs. The plaintiffs were never prevented by
any person from cultivating the suit land on the spot.
10. DW-1 Rajiv Kamal, Patwari, has admitted in his cross-examination that he has seen the
suit land in possession of the plaintiffs.
11. DW-2 Lekh Ram, Forest Guard has also admitted in his cross-examination that the
plaintiffs were in possession of the suit land and their possession was very old.
12. In Ex.DW-1/D-4, i.e. jamabandi for the year 1962-63, plaintiff Budhia and Bhajnu,
father of plaintiff Hukmi are shown in possession of the suit land as Gair Maurushi (non-
occupancy) tenants. According to jamabandis for the years 1967-68 Ex.P1, 1972-73 Ex.P-
2, 1977-78 Ex.P-3, 1982-83 Ex.P-4, the suit land was shown in the name of the plaintiffs.
These entries were changed for the first time in the jamabandi for the year 1986-87 vide
Ex.P-5 whereby the entries of Gair Maurushi (non-occupancy) were changed to forcible
possession. The State of H.P. has been shown as owner whereas Forest Department has
been shown in possession of the suit land. The plaintiffs have proved Ex. PA and the
defendants have also relied upon copy of this order Ex.DW-1/C. It is not the copy of order
dated 20.1.1984 received in the office of Tehsildar, Shillai. It is the communication
received from the office of District Collector on the basis of which the entries qua
possession of the suit land recorded in favour of the plaintiffs were deleted. The possession
of the plaintiffs, as noticed above, has been shown since 1962-63 to 1982-83. The
defendants have not placed any tangible evidence on record that the plaintiffs were heard
before the entries were changed to their detriment. DW-1 Rajiv Kamal in his cross-
examination has admitted that except Ex.DW-1/C, there was no other document in the
records of department. The plaintiffs were required to be heard before the long standing
entries were changed.
13. In jamabandi for the year 1958-59 Ex.DW- 1/D-5, land comprised in Khasra No. 312
measuring 242-13 bighas is shown as "Nakabil", i.e. not cultivable, however, in the
jamabandi for the year 1962- 63 Ex.DW-1/D-4 the suit land comprised in Khasra No. 312
min measuring 4 bighas was shown as "obad doam". These entries were repeated upto
1982-83 vide Ex.P-4. These entries were changed for the first time; vide Ex.P-5 whereby
the nature of the suit land was shown as "Banjar Kadim". It is thus evident that the
plaintiffs were in possession of the suit land. They have broken the suit land and made it
cultivable as per records of right with effect from 1962-63 upto 1982-83. The plaintiffs
have proved that they were in open, hostile and continuous possession as per statements of
PW-1 and PW-2. According to them, the commencement period was 1998-99 B.K.
Sambwat. DW-1 Rajiv Kamal and DW-2 Lekh Ram have also admitted that the plaintiffs
were in possession of the suit land. The plaintiffs are in possession of the suit land since
1962-63 and the suit has been filed in the year 2000, thus, the possession of the plaintiff
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over the suit land is more than 30 years old. It is not the case of the defendants that
plaintiffs were declared encroachers and the proceedings had been initiated against them.
They had been shown in possession in the copy of jamabandi for the year 1962-63. The
entries to their detriment were changed vide order dated 20.1.1984 Ex.DW-1/C. The
plaintiffs have raised the question of title on the basis of long standing entries, which were
duly recorded in the records of right. Thus, the civil court had jurisdiction to entertain, try
and decide the suit preferred by the plaintiff.
14. Mr. R.P. Singh has argued that the suit was not within limitation. The entries made in
favour of the plaintiffs were altered on the basis of order dated 20.1.1984. There is no
material on record to establish that the plaintiffs were heard or issued any notice before
these entries were changed. According to the plaintiffs, cause of action has arisen for the
first time in the year 1998 when the forest officials visited the spot and threatened to
dispossess them. The plaintiffs had issued notice, under section 80 of the Code of Civil
Procedure. The suit has been instituted within a period of three years after the cause of
action had arisen in favour of the plaintiffs. The defendants have changed the ownership
and nature of the suit land without hearing the plaintiffs from "obad doam" to "banjar
kadim".
15. Accordingly, in view of the observations and discussions made herein above, there is
no merit in the Regular Second Appeal and the same is dismissed. No costs.

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