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CASE NO.: Appeal (civil)  6616 of 2000

PETITIONER: Girja Kumar & Ors

RESPONDENT: State of Himachal Pradesh & Anr

DATE OF JUDGMENT: 31/10/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT

P. Sathasivam, J.

1)      The plaintiffs who succeeded before the  trial Court, lower appellate Court and  lost their suit before the High Court  filed the above appeal. 2)      Brief facts required for the disposal  of this appeal are as follows: According to the plaintiffs-appellants,  they were in possession of the suit land  for more than 40 years.  The suit was  filed in 1989 for declaration of title on  the ground of adverse possession and for  injunction.  The trial Court decreed the  suit and the appeal filed by the  defendants was dismissed by the first  appellate Court.  When the second appeal  was filed before the High Court, the High  Court, after finding that there is no  evidence, remanded the matter to the trial  Court for taking further evidence.  The  said order of the High Court was  challenged before this Court by way of  C.A. No. 1348 of 1999.  By judgment dated  8.3.1999, this Court, after recording a  finding that the High Court was in error  and not justified in sending the matter  back to cure any lacuna in the evidence,  set aside the order, restored Second  Appeal No. 304 of 1992 to the file of the  High Court and directed it to dispose of  the same afresh on the available evidence. 3)      Pursuant to the said direction, the  High Court formulated two substantial  questions of law which are as under:

\0231.  Whether the suit was barred in view  of the provisions of Section 163(3)  of the H.P. Land Revenue Act, 1953?

2.      Whether the suit of the plaintiff, in  the facts of the case that on 2nd  April, 1970, an order of ejectment  was passed ordering the ejectment of  the plaintiff under Section 163 of  the H.P. Land Revenue Act, 1954, can  be said to be within the period of

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limitation?\024    While considering the first question, the  High Court concluded that inasmuch as an  order of ejectment of the plaintiffs from  the land in dispute under Section 163 of  the H.P. Land Revenue Act, 1953 was passed  on 2.4.1970 by the Settlement Officer, the  suit having been filed about 19 years  after such order is barred by limitation.   After arriving at such conclusion on  question No.1, the High Court, without  going into the second question or  adverting to the case of the plaintiffs  i.e., adverse possession, by order dated  04.01.2000, allowed the second appeal, set  aside the judgments and decrees passed by  the trial Court as well as by the lower  appellate Court and dismissed the suit of  the plaintiffs as being time barred.   Challenging the said order, the plaintiffs  have filed the present appeal. 4)      Heard Mr. Himinder Lal, learned counsel  appearing for the appellants and Mr. Vivek  Singh Attri, learned counsel appearing for  the respondents. 5)      We have already extracted the first  substantial question of law which relates  to limitation.  The High Court proceeded  the said issue on the ground that though  the order of ejectment of the plaintiffs  from the land in dispute came to be passed  by the Settlement Officer on 2.4.1970  however, the plaintiffs filed the Suit No.  41 of 1989 only on 23.2.1989 before the  Senior sub-Judge, Mandi which was barred  by limitation.  The High Court, in  arriving at such a conclusion, relied on  Section 163 of the H.P. Land Revenue  (Amendment) Act No.15 of 1989.  Learned  counsel for the respondents herein pointed  out that the order said to have been  passed on 2.4.1970 by the Settlement  Officer was not communicated to them.  It  is also their claim that they were not  issued notice or afforded an opportunity  to put forth their case before making an  entry/passing an order by the Settlement  Officer.  In fact, neither before the  Courts below nor before the High Court,  the proceedings dated 2.4.1970 was  produced by the defendants.  In fact,  there is no specific plea in the written  statement as to the limitation and no  issue was framed by the trial Court and no  point was determined by the lower  appellate Court.  We verify the defence  stated in the written statement, issues  framed by the trial Court and the points  determined by the lower appellate Court.   There is no such plea and issue as to the  limitation.  Though it would be open to  the parties to the suit to raise the plea  of limitation before the High Court as  pointed out earlier, the defendants have

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not taken any effort to place the alleged  proceedings dated 2.4.1970 of the  Settlement Officer.  It is not clear how  the High Court arrived at a specific  conclusion that suit filed by the  plaintiffs was barred by limitation.  Even  according to the defendants, the entire  records relating to the said proceedings  were lost.  We have already referred to  the fact that such issue was not raised  and argued before the Courts below.  On  the other hand, the plaintiffs  concentrated that they are entitled to  decree in respect of the suit property  based on the continuous and uninterrupted  possession for over a period of 40 years,  that too, to the knowledge of the  defendants.  In view of the assertion of  the plaintiffs that they were neither  heard nor afforded an opportunity in the  alleged proceedings dated 2.4.1970, the  onus is on the defendants/Department to  place those relevant record to show that  there was valid order by the competent  authority.  Admittedly, such record was  not called for and no material was placed  before the Courts below including the High  Court.  On the other hand, based on the  acceptable oral and documentary evidence  regarding the claim of adverse possession,  the trial Court decreed the suit which was  affirmed by the lower Court.  Inasmuch as  the High Court dismissed the suit only on  the ground of limitation and not gone into  the claim of adverse possession by  plaintiffs, in view of our conclusion and  disagreement with the High Court\022s  decision, we have no other option except  to remand the matter once again to the  High Court for disposal of the second  appeal afresh in respect of other issue  i.e., adverse possession.    6)      Under these circumstances, the judgment  and decree dated 4.1.2000 passed by the  High Court of Himachal Pradesh in R.S.A.  No. 304 of 1992 is set aside and the  matter is remitted to the High Court to  decide the issue relating to adverse  possession.  However, it is made clear  that except the finding relating to  limitation, we have not expressed any  opinion on the conclusion of the courts  below relating to the other issues; hence  it is for the High Court to decide the  same on merits one way or the other with  the available materials.  Inasmuch as the  plaintiff\022s suit is of the year 1989 and  even the RSA is of the year 1992, we  request the High Court to dispose of the  matter within a period of four months from  the date of receipt of this judgment. 7)      The appeal is allowed to the extent  mentioned above.  No order as to costs.