Himachal HC reverses two courts: landowner admitted in 1980 that plaintiff was in possession

Justice Rakesh Kainthla allowed two second appeals from Theog and decreed a land suit, holding that both courts wrongly shut out signed papers and a 1980 statement because they were not put to the landowner in cross-examination.

A landowner stated in a civil suit on 6 September 1980 that Diwan Singh had been in possession of the land and house in Kamnya village for ten to twelve years. Two courts later ignored that statement. On 5 November 2026 the Himachal Pradesh High Court held that she was bound by it.

Justice Rakesh Kainthla allowed Regular Second Appeal Nos. 364 and 365 of 2007 together. He set aside the decrees of a Sub Judge at Theog and of the District Judge (Forest), Shimla, and ordered that the plaintiffs’ suit be decreed.

A suit over a Kamnya house and land

Diwan Singh and the other plaintiffs asked for a declaration that they owned the suit land and that the revenue entries were wrong. They also sought an injunction against interference. They said the land fell to Het Ram in a private partition among co-owners.

Het Ram had no children, they said, and they looked after him and helped him farm. In 1965 he gave them the land and a house in Kamnya. They gave him a share of the produce.

The plaintiffs claimed to be tenants, and in the alternative owners by adverse possession. The revenue entries, they said, did not show their possession. They sued after the defendants threatened to oust them on the strength of those entries.

The landowner’s answer and counterclaim

Dashoda Devi, the first defendant, denied all of it. She said Het Ram had four daughters and held the land under a family arrangement. She took possession after his death.

Diwan Singh, she said, had volunteered to help her look after the property. She gave him Khasra Nos. 460, 461 and 544, measuring 5 bigha 2 biswa, and let him live in the house as a licensee.

She said she orally ended the licence and asked him to leave. Her counterclaim sought possession of those plots and the house. The plaintiffs replied that no licence was ever created.

How the courts below ruled

The Sub Judge framed issues on 19 January 1993. The plaintiffs examined four witnesses and a fifth in rebuttal. Dashoda Devi examined herself and three others, including Sher Singh (DW4), who wrote the papers that later mattered.

The trial court found no evidence of a partition and said the plaintiffs had not proved Het Ram put them in possession. It noted that Diwan Singh had appeared as a witness in Dashoda Devi’s Civil Suit No. 109/1 of 1978 and the plaintiffs projected no claim of tenancy there.

It refused to rely on the documents the plaintiffs produced. They came late, it said, and Dashoda Devi was not confronted with them in the witness box. It dismissed the suit and partly decreed the counterclaim.

The District Judge agreed. He pointed to the plaintiffs’ own witness, Puran Singh, who had seen Diwan Singh in possession for 16 to 17 years. That put the start in 1976 or 1977, after Het Ram died in 1975.

Two questions the High Court admitted

The High Court admitted the appeals on 21 May 2008 on two substantial questions of law. The first asked whether both courts wrongly discarded Ext. DW4/A and Ext. DW4/B only because they were produced late.

“When (Ext.DW4/A) and (Ext.DW4/B) were duly proved in evidence, have not both the Courts below discarded the material pieces of evidence, which was relied upon in support of the claim of tenancy of plaintiffs-appellants merely on the ground that the same were produced at a belated stage?” (para 12)

The second asked whether both courts ignored Dashoda Devi’s admission in her earlier suit, marked Ext. PB.

What each side argued

Mr Bhupinder Gupta, Senior Advocate, with Mr Harshit Sharma, appeared for the appellants. He said Dashoda Devi had admitted the plaintiffs’ possession in her earlier suit and had signed an agreement acknowledging them as tenants.

The courts discarded those papers because they were not put to her in cross-examination. Mr Gupta said an admission is substantive evidence, and that Section 145 of the Evidence Act does not apply to it. He relied on a Himachal Pradesh High Court ruling, Rekha Karol v. Lachhmi Devi.

Mr Mohinder Verma, for the respondents, said the documents were not filed with the plaint and were only put to DW4. In his submission they could not be produced during evidence, and the courts below had rightly rejected them.

When a second appeal can disturb facts

The judge began with the limits of Section 100 of the CPC. Quoting earlier decisions of the court and the Supreme Court, he said a High Court can interfere with a finding of fact only if it is perverse.

He drew on Maro v. Khillo, Geeta Bhawan v. Balbir Singh and Gabion Technologies. The Supreme Court rulings quoted included D.R. Rathna Murthy v. Ramappa, Hero Vinoth v. Seshammal and Damodar Lal v. Sohan Devi.

On these authorities a finding is open to correction if it ignores material evidence, rests on no evidence or misreads evidence, or if the courts have wrongly cast the burden of proof. The first appellate court is otherwise the last court of facts. The question was whether the courts below had excluded relevant evidence.

Documents put to the scribe were in time

Sher Singh was examined on 22 September 1994. He admitted he had brought his register of documents, and the plaintiffs were allowed to put the papers to him. His further cross-examination was deferred to 7 December 1994.

That day he said he wrote Ext. DW4/A at Dashoda Devi’s instance and that it was read over and explained to her before she signed. He wrote Ext. DW4/B for Vidya Devi and Begi Devi, who signed before witnesses.

The judge held the documents were therefore put to a defence witness. Order XIII Rule 1(3)(a) of the CPC exempts documents produced for the cross-examination of the other side’s witnesses from the rule that documents must be filed before issues are settled.

Order VII Rule 14(4) carries a similar exemption. The bar on late documents did not apply, the court said.

An admission needs no confrontation

The courts below had also said the papers were not put to Dashoda Devi herself. The High Court held that finding could not be sustained. It relied on Bishwanath Prasad v. Dwarka Prasad, where the Supreme Court said an admission by a party is substantive evidence if it meets Section 21 of the Evidence Act.

That decision separates a party’s own prior statement from the statement of a witness being discredited. Only for the second does Section 145 require the witness to be confronted first. A party’s admission, the Supreme Court said, is evidence on its own force.

The judge added Union of India v. Moksh Builders and Vathsala Manickavasagam v. N. Ganesan. He noted that Himachal Pradesh High Court had taken the same view in Inderjit Singh v. Omkar Singh and Rekha Karol. The documents could not be rejected on that ground.

What the papers actually said

Ext. DW4/A records that Dashoda Devi owns the land at Kamnya. She and her husband Het Ram handed over the land and house to Diwan Singh for cultivation, and he had been in possession for about ten years.

The document says Diwan Singh paid half the produce as rent. She had no objection to his name being entered in the revenue record.

Ext. DW4/B, executed by Vidya Devi and Begi Devi, says they were co-owners. They too handed over the land and house to Diwan Singh, who paid the land revenue, and they had no objection to his name in the records.

The judge held that both documents acknowledged the plaintiffs’ case that Diwan Singh was inducted by Het Ram. The courts below had instead relied on oral evidence to find that his possession was recent and began after Het Ram died. That finding, he said, was contrary to the recital in Ext. DW4/A.

The 1980 statement

On the second question, Dashoda Devi admitted in cross-examination that she made the statement marked A to A in Ext. PB. It said Diwan Singh was in possession of the land and house at Kamnya for 10 to 12 years.

It was made on 6 September 1980. That, the judge held, established possession before Het Ram’s death. Both courts had ignored the admission and, he said, it affected their judgments adversely. He answered both questions in the appellants’ favour.

Order

The judge held that “the learned Courts below had excluded the relevant evidence” (para 30). The judgments and decrees of both courts were set aside and the plaintiffs’ suit was ordered to be decreed. A decree sheet is to be prepared.

Both appeals and any pending applications were disposed of. The record of the courts below is to be returned with a copy of the judgment. Judgment had been reserved on 12 October 2026.