Sandeep Sharma,J.
1. Instant Regular Second Appeal is directed against the judgment and decree passed by the learned District Judge (Forest), Shimla, H.P. in Civil
Appeal No.12-S/13 of 2005/04, dated 16.01.2007, affirming the judgment and decree passed by learned Civil Judge(Junior Division), Court No.1,
Shimla, H.P. in Civil Suit No.17/1 of 2003, dated 24.09.2004, praying therein to decree the suit having been filed by the plaintiff-appellant after setting
aside the judgments and decrees passed by both the Courts below.
2. Necessary facts, as emerged from the record, are that the plaintiff-appellant (hereinafter referred to as the ‘plaintiff’) filed a suit for
declaration to the effect that he is owner in possession of the land comprised in Khata No.20 min, Khatauni No.32, Khasra No.57/11 (New), area
measuring 1391-19 hectares, situate in Mauza Jangal Mashobra, Pargana Shohawali, Tehsil and District Shimla (hereinafter referred to as the ‘suit
land’). Plaintiff averred in the plaint that the suit land was given on Patta to one Shri Dina Nath Mehra, the predecessor in interest of Shri Jag
Mohan Mehra, and thereafter it remained in possession of Shri Jag Mohan Mehra and his successors in interest from whom plaintiff has purchased
this land. It is further averred that in the year 1962 Shri Jag Mohan Mehra had moved an application for correction of revenue record with respect to
15-9 bighas of land, out of the entire land of 24-18 bighas, because only 9-9 bighas of land, out of the suit land, was shown in ownership and
possession of Shri Jag Mohan Mehra. It is alleged that in the aforesaid application, moved by Shri Jag Mohan Mehra, Tehsildar, Kasumpti conducted
an inquiry and found that the entire suit land had given to the predecessor-in-interest of Shri Jag Mohan Mehra by Patta, but, in the revenue record
only 9-9 bighas of area was entered in his name. It is further alleged that Shri Jag Mohan Mehra contested the case before different revenue
authorities and after his death, his successors-in-interest namely; Smt.Ved Kumari Mehra and Shri Bharat Mohan Mehra, remained in possession of
the entire land and thereafter they sold it to the plaintiff and delivered the possession of entire land to him. It is pleaded that respondents-defendants
(hereinafter referred to as the ‘defendants’) are interfering with the possession of the plaintiff in the suit land on the basis of wrong entries and,
as such, he is entitled to the relief of declaration as well as permanent prohibitory injunction. In this background, the plaintiff sought a decree for
possession and injunction against the defendants.
3. Defendants, by way of filing their written statement, refuted the claim of the plaintiff on the ground of cause of action, proper valuation, res judicata
etc. On merits, defendants refuted the claim put forth by the plaintiff and claimed that Jagmohan Mehra was owner of 9-9 bighas of land at Mauja
Mashobra by way of Patta and, out of this land, he sold 7 biswas of land in the year 1981 to Smt.Mohinder Pal Sidhu, as a result of which only 9-2
bighas land remained in his share. It is averred that other land is owned and possessed by State of Himachal Pradesh and Jagmohan Mehra and his
successors-in-interest had no right or interest over that land. Defendants also averred that predecessors-in-interest of the plaintiff were not in
possession of that land, the applications filed by them for the correction of revenue entries were rightly dismissed by the revenue Courts. Defendants
further averred that even the plaintiff has purchased land to the extent of 9-2 bighas and is not in possession of other land, as such, question of his
becoming the owner by way of adverse possession does not arise. In the aforesaid background, the defendants prayed for dismissal of the suit.
4. By way of replication, the plaintiff, while denying the allegations made in the written statement, reaffirmed the averments made in the plaint and
controverted the contrary averments made in the written statement.
5. On the pleadings of the parties, the learned trial Court framed the following issues for determination:-
“1. Whether the suit property specifically in para No.1 of the plaint was given to Sh.Jagmohan Mehra by the princely state of Koti vide dated
29.7.1878 as alleged? OPP.
2. Whether Sh.Jagmohan Mehra came to process the suit property, as alleged? OPP.
3. Whether the suit property was inherited by the widow Ved Kumari Mehra as alleged, if so to what effect? OPP.
4. Whether the plaintiff is the owner in possession of the suit property on account of its purchase vide sale deed dated 28.1.88, if so to what effect?
OPP.
5. Whether the revenue entries pertaining to suit land are wrong, null and void? OPP.
6. Whether in the alternative the plaintiff has become the owner of the suit property by way of adverse possession? OPP.
7. Whether the plaintiff is entitled to the relief of Permanent Prohibitory Injunction as prayed for? OPD.
8. Whether the plaintiff has no cause of action to file the suit? OPD.
9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
10. Whether the jurisdiction of the court is barred under the provisions of H.P. Land Rent Act? OPP.
11. Whether the plaint is liable to be rejected under order 7 rule 11 C.P.C. for want of cause of action? OPD.
12. Whether the suit is bad for non joinder of necessary parties? OPD.
13. Whether the suit is barred by principle of resjudicata as alleged? OPD.
14, Whether the suit is bad for want of legal and valid notice under section 80 C.P.C. ? OPD.
15. Relief.â€
6. Learned trial Court, on the basis of evidence adduced on record by respective parties, dismissed the suit of the plaintiff. Being aggrieved and dis-
satisfied with judgment dated 24.09.2004 passed by learned trial Court in Civil Suit No.17/1 of 2003, plaintiff preferred an appeal under Section 96 of
the Code of Civil Procedure (for short ‘CPC’) in the Court of learned District Judge (Forest), Shimla, which came to be registered as Civil
Appeal No.12-S/13 of 2005/04. However, fact remains that the same was also dismissed, as a consequence of which, judgment of trial Court dated
24.09.2004 came to be upheld. In the aforesaid background, plaintiff has approached this Court in the instant proceedings, praying therein to decree his
suit after setting aside the judgments and decrees passed by both the Courts below.
7. This Court vide order dated 17.08.2007, admitted the appeal on the following substantial questions of law:-
“1. Whether the application filed under Section 65 of Evidence Act for secondary evidence was wrongly dismissed by the learned trial Court as
well as the learned appellate Court and the same deserves to be allowed?
2. Whether there has been misreading of evidence by the Courts below in regard to the claim of the plaintiff regarding adverse possession?.
3. Whether the learned trial Court has wrongly drawn an adverse inference in regard to non-appearance of the witness in the witness box?â€
8. I have heard learned counsel for the parties and gone through the record of the case.
9. Taking note of the nature and the text of substantial questions of law referred hereinabove, this Court intends to take all the substantial questions of
law together for adjudication.
10. Having carefully perused pleadings as well as evidence adduced on record, be it ocular or documentary, this Court does not find much force in the
contention raised by Mr.Bhupender Gupta, learned Senior Counsel representing the appellant-plaintiff that the Courts belowhave failed to appreciate
the evidence in its right perspective and there is complete misreading, mis-appreciation and mis-construction of evidence, rather this Court, having
carefully examined material available on record vis-Ã -vis impugned judgments passed by both the Courts below, has no hesitation to conclude that the
plaintiff has miserably failed to prove on record that he is in adverse possession of the suit land as claimed in the Civil Suit having been filed by him.
Though Mr.Bhupender Gupta, while inviting the attention of this Court to the pleadings as well as evidence led on record by the plaintiff, made a
serious attempt to persuade this Court to agree with his contention that the plaintiff is in adverse possession of the suit property, but such claim is not
corroborated by evidence, be it ocular or documentary. To the contrary, evidence available on record clearly suggests that Patta dated 29.7.1878 was
given/made in favour of Mr.Thomas Bliss, proprietor of M/s.A.Plomar & Company (hereinafter referred to as ‘M/s.A. Plomar’) by Raja of
Koti and not in favour of Shri Dina Nath Mehra i.e. predecessor-in-interest of the plaintiff. Evidence available on record clearly suggests that Dina
Nath Mehra had only purchased land to the extent of 9-9 bighas from M/s.A.Plomar.
11. In nutshell, case as set up by the plaintiff in the plaint is that Patta of land measuring 24-18 bighas was granted in favour of Dina Nath Mehra on
29.7.1878 by Raja of Koti. As per plaintiff, only part of land measuring 9-9 bighas (Khasra Nos.78, 79 and 80) has been mutated in his name, whereas
rest of land has not been recorded in his ownership and entries in this regard made in revenue record are wrong. Plaintiff has further averred that land
measuring 9-9 bighas corresponding to Khasra Nos.78, 79 & 80 as well as land corresponding to Khasra No.57/11 was allotted to Dina Nath Mehra
by the same Patta dated 29.7.1878 by Raja of Koti and subsequently same land descended to him vide sale deed dated 28.1.1988, but, aforesaid case
set up by the plaintiff is not corroborated by the evidence led on record by plaintiff himself, rather, evidence led on record by the plaintiff itself
suggests that Patta dated 29.7.1878 was allotted to M/s.A.Plomar and not to Dina Nath Mehra. Careful perusal of Ex.PW-2/B and Ex.D-10 i.e.
Misalhaquiat Bandobast for the year 1949-50 in respect of Khasra Nos.78, 79 and 80 clearly suggests that Patta in question was not granted in favour
of Dina Nath Mehra, rather the same was allotted to M/s.A.Plomar from whom Dina Nath Mehra purchased 9-9 bighas of land in the year 1961 vide
sale deed dated 17.8.1961. Careful perusal of entries made in Jamabandies for the years, 1952-53 Ex.PW-2/B and D-11, 1956-57 Ex.PW-2/C and
Ex.D-12 and 1960-61 Ex.PW-2/D and Ex.D-13, further suggest that mutation with regard to 9-9 bighas of land purchased by Dina Nath Mehra from
M/s.A. Plomar was attested in favour of Dina Nath Mehra on 17.8.1961. Interestingly, plaintiff has failed to place on record sale deed executed by
M/s.A.Plomar in favour of Dina Nath Mehra. Similarly, there is no evidence led on record by the plaintiff to demonstrate that their predecessor-in-
interest Dina Nath Mehra had purchased entire land, detailed in Patta dated 29.7.1878. Careful perusal of copies of Jamabandies for the years 1949-
50 Ex.PW-2/B and 1956-57 Ex.PW-2/C, clearly suggest that M/s.A.Plomar was in possession of land to the extent of 9-9 bighas as Pattadar. In the
Jamabandi for the year 1960- 61 Ex.PW-2/D, it stands mentioned that land measuring 9- 9 bighas, out of suit land, was transferred in the name of
Dina Nath Mehra vide mutation No.77, whereafter some entry showing Jag Mohan Mehra in possession of this land stands mentioned in Ex.PW- 2/E
i.e. copy of Jamabandi for the year 1964-65. Close scrutiny of documentary evidence, as has been discussed hereinabove, as well as Ex./PW-2/F and
Ex.PW-2/G i.e. copies of Jamabandies for the years 1979-80 and 1974-75 clearly suggests that original Patta was in favour of M/s.A.Plomar and not
Dina Nath Mehra. Vide Ex.PW-5/D, predecessor-in-interest of the plaintiff had applied for copy of Patta, but the same was not entertained and
returned to the applicant on the ground that required details have not been furnished and copy of Patta is not on the record. Ex.PW-5/E i.e.
communication sent by Shri Jag Mohan Mehra to the Under Secretary, H.P. Territorial Council, Shimla further reveals that infact no Patta was ever
issued in favour of Dina Nath Mehra, but there is only a deed to sell in favour of Dina Nath Mehra by M/s.A.Polmar.
12. Leaving everything aside, it is not in dispute that the plaintiff had purchased only 9-9 bighas of land from the successors-in â€"interest of Shri Dina
Nath Mehra and, as such, there is no dispute qua the same between the parties. Though the plaintiff by way of filing the suit claimed possession over
the remaining land i.e. 15-9 bighas, but no cogent and convincing evidence has been led on record in this regard save and except deposition of PW-5
Sansar Chand i.e. attorney of plaintiff. If the statement of this witness is read in its entirely, it nowhere discloses that how predecessor-in-interest of
the plaintiff came into possession of the remaining land measuring 15-9 bighas and who had the control over the land in question. No doubt, as has
been concluded hereinabove, there is no dispute with regard to ownership and possession of plaintiff qua 9-2 bighas of land purchased by their
predecessor-in-interest from M/s.A.Polmar, but certainly there is no evidence worth the name led on record by the plaintiff suggestive of the fact that
they are in possession of remaining 15-9 bighas of land. Though plaintiff has taken the plea of adverse possession, but, it is well settled that the plea of
adverse possession is not a pure question of law but a blended one of fact and law. A person, claiming adverse possession, is required to prove;
(a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other
party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.
13. The Hon’ble Apex Court in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Ors., AIR 2009 SC 103, has categorically held that
since a person claiming adverse possession intends to defeat the rights of the true owner, onus is heavily upon him to clearly plead and establish all
facts necessary to establish his adverse possession. Rather, in the case referred above, Hon’ble Apex Court termed the law of adverse
possession as irrational, illogical and wholly disproportionate and recommended Union of India to seriously consider and make suitable changes in the
law of adverse possession. The Hon’ble Apex Court has held:-
“18. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this court observed as under:-
“In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the
owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a
right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled
principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precarioâ€, that is, peaceful, open and
continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must
start with a wrongful disposition ofthe rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.†The court
further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims
adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of
possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person
pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and
establish all facts necessary to establish his adverse possession.
19. In Saroop Singh v. Banto (2005) 8 SCC 330 this Court observed:
“29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but
commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC
376)
30. `Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for
prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the
logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Others (2004) 1 SCC
271)â€
20. This principle has been reiterated later in the case of M. Durai v. Muthu and Others (2007) 3 SCC 114 para 7. This Court observed as under:
“...In terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years
preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to
establish that he has perfected his title by adverse possession.â€
21. This court had an occasion to examine the concept of adverse possession in T. Anjanappa & Others v. Somalingappa & Another [(2006) 7 SCC
570]. The court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was
hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that the classical requirements of
acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The
possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there
should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
22. In a relatively recent case in P. T. Munichikkanna Reddy & Others v. Revamma & Others (2007) 6 SCC 59] this court again had an occasion to
deal with the concept of adverse possession in detail. The court also examined the legal position in various countries particularly in English and
American system. We deem it appropriate to reproduce relevant passages in extenso. The court dealing with adverse possession in paras 5 and 6
observed as under:-
“5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on
the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession
lie in it being open, continuous and hostile. [See Downing v. Bird 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little
Rock 227 Ark. 1085 : 303 S.W.2d 569 (1957); Monnot v. Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494,
273 P. 908, 97 A.L.R. 1 (1929).]
6. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires
through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour
of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the
property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in
the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who
neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right
or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse
Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a complete go by. Simple application of
Limitation shall not be enough by itself for the success of an adverse possession claim.â€
34. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction
within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a
dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine
manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the
illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
36. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to
seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and
Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.â€
14. Reliance is also placed upon the judgments of Hon’ble Apex Court in Nasgabhushanammal (D) By LRs. Vs. C.Chandikeswaralingam, AIR
2016 SC 1134, Bangalore Development Authority vs. N.Jayamma, AIR 2016 SC 1294 and Prem Nath Khanna and others vs. Narinder Nath Kapoor
(Dead) Through L.Rs. and others, AIR 2016 SC 1433.
15. While setting up a case for adverse possession qua the suit property, plaintiff has averred that since suit land, comprising of Khasra No.57/11, was
a part of Patta dated 29.7.1878, as such, he has become its owner by way of adverse possession and the right, title and interest of the defendants
stand extinguished. But, it is well settled that adverse possession involves assertion of hostile animus and factum with regard to the fact whether such
hostile animus was exerted, can be proved by the claimant-plaintiff by leading definite evidence to this effect, but interestingly, in the case at hand,
plaintiff himself did not step into the witness box, rather he just examined his Special Power of Attorney PW-5 Shri Sansar Chand, who miserably
failed to prove the plea of adverse possession set up in the suit.
16. It is not in dispute before this Court that the plaintiff had purchased suit land from Ved Kumari Mehra and Bharat Mohan Mehra, but interestingly
plaintiff also failed to examine them, which he ought to have to prove the factum with regard to possession over the suit land. Ved Kumari Mehra and
Bharat Mohan Mehra, from whom plaintiff purchased land, were the most appropriate and suitable persons to depose with regard to timing and place
of handing over the possession of the suit land to the plaintiff pursuant to sale made by them in his favour. As per plaintiff, he had purchased suit land
from the persons named hereinabove in the year 1988 vide sale deed dated 28.1.1988 and since then he is in hostile possession, but even then
possession, if any, of the plaintiff has not matured into adverse possession against the State of Himachal Pradesh.
17. PW-2 and PW-3 S/Shri Karam Chand and Deepak Sood have failed to corroborate the case set up by the plaintiff, rather they categorically
deposed before the Court that the plaintiff is in possession of land measuring 9-9 bighas and the surrounding land is being possessed by the State
Government.
18. It is well settled that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precarioâ€, that is, peaceful,
open and continuous., rather it must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. On
the top of everything, it must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the
statutory period.
19. Both the Courts below having taken note of evidence adduced on record by the plaintiff have rightly come to the conclusion that there is no
material to conclude that the plaintiff has become owner of the suit any by way of adverse possession and the revenue entries are wrong.
20. In the case at hand, plaintiff, by way of an application filed under Section 65 of the Evidence Act, sought permission of the trial Court to lead
secondary evidence with a view to prove Patta dated 29.7.1878 on the ground that original was destroyed in fire. Judgment passed by trial Court
suggests that same was considered and decided at the time of final hearing. As has been noticed hereinabove, plaintiff failed to place on record sale
deed dated 28.1.1988 executed in his favour in respect of land detailed in Patta dated 29.7.1878 and, as such, Court below rightly came to the
conclusion that the production of original Patta and in its absence secondary evidence thereof shall not enhance and advance the cause of the plaintiff
because since it stands duly proved that he had purchased land to the extent of 9-2 bighas vide sale deed 28.1.1988, he cannot claim any right over the
remaining land measuring 15-9 bighas. Though, neither Patta dated 29.7.1878 nor sale/mutation dated 17.8.1961, whereby land measuring 9-9 bighas
was mutated in the name of Dina Nath Mehra, have been placed on record by the plaintiff, but, even then it can safely be concluded on the basis of
stand taken by the defendants in their written statement that Jag Mohan Mehra, successor- in-interest of Dina Nath Mehra was owner of 9-9 bighas
of land at Mauza Mashobra by way of Patta and out of this land he had sold 7 biswas of land to Smt.Mahender Pal Sidhu in the year 1981. Since
remaining land measuring 15-9 bighas was shown to be in ownership and possession of the defendant-State, Jag Mohan Mehra and his successors-in-
interest had filed application for the correction of revenue entries (Ex.PW-5/B), which came to be dismissed by the revenue Courts. It emerge from
the record that the settlement operation was conducted in the year 1950-51 and during settlement operation Jag Mohan Mehra, successor-in-interest
of Dina Nath Mehra was recorded as owner qua the land measuring 9-9 bighas. Being aggrieved with the entry made qua the land measuring 9-9
bighas only and recording of ownership and possession of respondent-State over the remaining land measuring 15-9 bighas, Jag Mohan Mehra
consistently filed applications for correction of revenue entries.
21. Learned Assistant Collector 2nd Grade(R), Shimla, while concluding that Smt.Ved Kumari and Shri Bharat Mohan Mehra sold the property
comprised in Khasra Nos.78, 79, 399/80, Kita 3, measuring 9 -2 bighas for a consideration of Rs.5 lacs vide mutation No.309, dated 11.11.1988 to
Deep Chand son of Dharam Chand (plaintiff herein) and that the rest of the land, recorded in possession of the Forest Department, was owned by the
State Government, rejected the application vide order dated 3.10.1991, Ex.PW-5/H. It is not in dispute that the said order was assailed till Financial
Commissioner (Appeals) to the Government of Himachal Pradesh, who dismissed the same on 17.4.2002. There is no iota of evidence adduced on
record by the plaintiff that Jag Mohan Mehra or Smt.Ved Kumari Mehra and Bharat Mohan Mehra, from whom he subsequently purchased land
detailed hereinabove were owners in possession of land measuring 24-18 bighas and, as such, there was no occasion for them to effect sale qua 24
bighas and 18 biswas land in favour of plaintiff as claimed by the plaintiff. Even if for the sake of arguments having been advanced by Mr.Bhupender
Gupta, learned Senior Counsel representing the appellant-plaintiff, it is assumed that original Patta dated 29.7.1878 was in respect of 24-18 bighas of
land, but even then case set up by the plaintiff cannot be accepted because Patta was in favour of M/s.A.Plomar. Definitely Dina Nath Mehra could
enter into the shoes of M/s.A.Plomar, had he purchased the entire land measuring 24-18 bighas of land from M/s.A.Plomar, but in this regard no
evidence has been led on record by the plaintiff. Even if Patta dated 28.07.1878 is presumed to be granted in favour of M/s.A. Plomar qua the land
measuring 24-18 bighas, still documents available on record suggest that he had parted land to the extent of 9-9 bighas in favour of Dina Nath Mehra
and, as such, legal heirs, if any, of Mr.Thoman Bliss proprietor of M/s.A.Plomar could claim their right, if any, over the land measuring 15-9 bighas,
but definitely not Dina Nath Mehra or his successors-in-interest.
22. No evidence is available on record that appeal, if any, was filed by the predecessor-in-interest of the plaintiff, laying therein challenge to orders
passed by the revenue Courts upholding the revenue entries showing State of Himachal Pradesh as owner in possession qua the land measuring 15-9
bighas of land. It is quiet apparent from the material available on record that Patta dated 29.7.1878 was in favour of M/s.A.Plomar and not in favour
of Shri Dina Nath Mehra i.e. predecessor-in-interest of Jag Monah Mehra. Documentary evidence, as has been discussed above, also suggests that
even M/s.A.Plomar was shown to be owner in possession of 9-9 bighas of land as Pattadar. Only in the Jamabandi for the year 1960-61 Ex.PW-2/D
land measuring 9-9 bighas has been shown to be sold/transferred in the name of Dina Nath Mehra vide mutation No.78 out of suit land, whereafter
consistently Jag Mohan Mehra, successor-in-in-interest of Dina Nath Mehra, has been shown to be in possession of land measuring 9-9 bighas.
Careful perusal of judgment rendered by trial Court clearly suggests that application under Section 65 of the Indian Evidence Act was considered and
rightly dismissed by the Courts below. Since plaintiff miserably failed to prove on record his entitlement to the land over and above 9-9 bighas, which
has otherwise been admitted by the defendants in their written statement, no fruitful purpose would have served in case plaintiff was allowed to lead
secondary evidence to prove Patta dated 29.7.1878.
23. It is not in dispute that in the case at hand neither plaintiff himself nor Ved Kumari Mehra or Bharat Mohan Mehra, who allegedly sold suit land to
the plaintiff vide sale deed dated 28.1.1988, stepped into the witness box, rather plaintiff’s attorney PW-5 Sansar Chand appeared as his Special
Power of Attorney. But, as has been observed above, he miserably failed to prove the case of plaintiff as set up in plaint. Since sale deed was
executed in favour of plaintiff by Ved Kumari Mehra, plaintiff was expected to step into witness box and state that he is in possession of the suit land
pursuant to sale made by aforesaid persons or he should have examined Ved Kumari and Bharat Mohan to prove factum with regard to delivery of
possession of the entire suit land measuring 24-18 bighas. By now it is well settled that where a party to a suit fails to enter into a witness box and
state his/her own case on oath and does not offer himself/herself to be cross-examined by the other side, a presumption would arise that the case set
up by him/her is not correct.
24. In this regard reliance is placed on the judgment of this Court in Harswarup vs. Ram Lok Sharma, 2000(3) Shim.L.C.160, wherein this Court has
held as under:-
“18. Be it stated that the tenant has not dared to step into the witness box to state about either the condition of the tenanted premises or the bona
fide requirement of the landlord for rebuilding and/or reconstruction. Only his general attorney Kuldip Singh has appeared as RW5.
19. It has been held by the Apex Court in Ishwar Bhai C.Patel v. Harihar Behera and another, (1999(2) Current Civil Cases 171 (SC), that if a
defendant does not enter the witness box to make a statement on oath in support of the pleadings set out in the written statement, an adverse
inference would arise that what he had stated in the written statement was not correct.
20. This court in Gurdev Singh v. Gulaboo, R.S.A.No.302 of 1992, decided on 24.4.2000, has held that the appearance of a general attorney cannot be
regarded as appearance of the party. The appearance of a general attorney is only as a witness in his personal capacity.
21. Therefore, in the present case, on the failure of the tenant to step into the witness box to make a statement on oath in support of his pleadings and
to subject himself to cross-examination, an adverse inference will have to be drawn against him and it will have to be presumed that the tenanted
premises are dilapidated and have become unfit and unsafe for human habitation. The findings recorded by the learned Appellate Authority, therefore,
call for no interference.â€
25. At this stage, Mr.Bhupender Gupta, learned Senior Counsel, representing the appellant - plaintiff also argued that learned District Judge has failed
to assign specific reasoning while upholding the findings returned by the trial Court below on the application filed under Section 65 of the Indian
Evidence Act, but this Court is not in agreement with the aforesaid argument of him because it clearly emerge from the judgment rendered by the first
appellate Court that it has specifically dealt with that aspect of the matter and has concurred with the findings returned by the trial Court. Hon’ble
Apex Court in Laliteshwar Prasad Singh vs. S.P. Srivastava, (2017)2 SCC 415, has specifically held that where appellate Court agrees with the views
of trial court on evidence, it need not restate effect of the evidence or reiterate reasons given by trial court and expression of general agreement with
reasons given by trial court would ordinarily suffice in such a case. The Hon’ble Apex Court has held as under:-
“14. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not
be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after
adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on
evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial
court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms
explaining how the reasonings of the trial court is erroneous.
26. In the case at hand, since the first appellate Court has concurred with the views of trial Court on the point in question, it was not required to
restate effect of evidence or reiterate reasons given by the trial Court rather expression of general agreement with reasons given by trial Court is
sufficient. All the substantial questions of law are answered, accordingly.
27. Mr.S.C. Sharma, learned Additional Advocate General, appearing for the respondent-State, supported the judgments passed by both the Courts
below and vehemently argued that no interference, whatsoever, is warranted in the present facts and circumstances of the case, especially in view of
the fact that both the Courts below have very meticulously dealt with each and every aspect of the matter. He also urged that scope of interference
by this Court is very limited, especially when two Courts have recorded concurrent findings on the facts as well as law. In this regard, to substantiate
the aforesaid plea, he placed relianceupon the judgment passed by Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others,
(2015)4 SCC 264, wherein the Hon’ble Apex Court has held as under:-
“16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established
their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was
no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A
schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’
right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the
findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by
the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.â€
28. Having carefully perused material available on record, this Court finds no error in judgment and decree passed by both the Courts below.
Mr.Bhupender Gupta, learned Senior Counsel representing the appellant, has not been able to point out perversity, if any, in the impugned judgments
passed by both the Courts below and as such scope of interference is very limited, as has been held in Laxmidevamma’s case supra.
29. Leaving everything aside it is/was not open for the plaintiff to claim adverse possession in a suit for declaration having been filed by him, claiming
therein that his adverse possession qua the suit has been matured into ownership. Hon’ble Apex Court in Gurdwara Sahib vs. Gram Panchayat
Village Sirthala and Another, (2014)1 SCC 669 has categorically held that the plea of adverse possession can be taken/used as a shield to defend such
possession by a defendant, but definitely plaintiff cannot seek declaration to the effect that his/her adverse possession has matured into ownership.
The Hon’ble Apex has held as under:-
“7. In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable.
8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found
to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings
are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.â€
30. In the facts and circumstances discussed hereinabove, this Court is of the view that findings returned by the trial Court below, which were further
upheld by the first appellate Court, do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as
well as specifically taken up by this Court to reach the root of the controversy, appear to be based upon correct appreciation of oral as well as
documentary evidence. Hence, the present appeal fails and is dismissed, accordingly. There shall be no order as to costs.
31. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.
