Balwant Singh and Another vs Bujah (deceased) through L.R's.

G.C. Garg, J.—Balwant Singh and another filed the present suit for possession of land measuring 2 Kanals 1 Maria on the allegation that the defendants had taken forcible possession of the same on the western side of Killa No. 24 about 1-1/2 years back without any right. On being asked the defendants represented that they are in possession of this area because of mutation No. 3014 sanctioned on 16.4.1973. The factum and validity of mutation was denied and the ownership of the land was claimed on the basis of exchange with Pargat Singh and others and the alternative the ownership by adverse possession was claimed.

The defendants contested the suit. They controverted the material allegations made by the plaintiffs. It was denied that the plaintiffs were the owners of the land in dispute. The defendants alleged that the oral exchange took place on 25.2.1957 between the defendants on the one hand and Pargat Singh and others on the other and that mutation No. 3014 relating to this exchange was entered and sanctioned in the year 1958. It was further pleaded that because of some mistake in sanctioning the mutation, the same was corrected and decided on 16.4.1973. Thus, the defence of the defendants was that they were the owners in possession of the land in dispute.

On the pleadings of the parties, the following issues were framed:

Whether the plaintiff are the owners of the land in suit by way of exchange/ adverse possession as alleged in Para No. 3 of the plaint? OPP

Whether the suit has been validly instituted by Bakhshish Singh plaintiff though his Mukhtiar? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the suit is bad for non-joinder of the necessary parties? OPD

Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPD

Whether the defendants are the owners in possession of the suit land and it was not given to Pargat and Piara etc. in any exchange? If so, its effect? OPD

Whether the plaintiffs are the bonafide transferees without notice? OPP

Relief.

The trial court found under Issue No. 1 that though the exchange as alleged by the plaintiffs had not been proved yet they became the owners of the suit land by way of adverse possession. Issue Nos. 2 to 6 were answered in favour of the plaintiffs. Issue No. 7 was, however, answered against the plaintiffs. As a result of the aforesaid findings, the trial court decreed the suit only on the ground that the plaintiffs have become the owners by way of adverse possession.

On appeal by the defendants, the learned Additional District Judge set aside the Judgment and decree of the trial court by allowing the appeal and dismissed the suit, The Additional District Judge came to the conclusion that the plaintiffs had failed to prove that they had become the owners of the suit land by adverse possession. It is against this judgment and decree of the first appellate court that the present appeal has been filed by the plaintiffs.

The learned Counsel for the appellants submitted that the plaintiffs became the owners by exchange in view of judgment Exhibit P3 and that in any case the findings of the lower appellate court are perverse as it did not take into consideration to entire evidence on the record while returning a finding against the plaintiffs to the effect that they have failed to prove that they have become owners by adverse possession. The learned Counsel further submitted that the plaintiffs were in possession of the land in dispute since 1958 to 1973 and the findings of the lower appellate court that the plaintiffs have proved their ownership by adverse possession was on the face of it wrong.

I have Considered the entire matter and do not agree with the learned Counsel for the appellants in so far the submits that the plaintiffs have become the owners of the land in dispute by way of exchange in view of judgment Exhibit P3 I have gone through the entire judgment Exhibit P3 and find that it was nowhere held that Balwant Singh etc. had become the owners of the land in dispute by way of exchange from Pargat Singh etc. Rather it is specifically recorded that "transaction between plaintiffs and the defendants cannot be said to be art exchange". In this view of the matter it cannot be successfully argued that the plaintiffs have become the owners of the suit on account of exchange with Pargat Singh. I thus, affirm the findings of the courts below in that behalf.

The learned Counsel for the appellants has taken me through the oral evidence of Radha Kishan Patwari DW1 and Gurbachan Singh DW3. He has also referred to Exhibit P4 (i.e.) the jamabandi for the year 1960-61 and mutation No. 3264 Exhibit P7 to show that the plaintiffs were in possession of the suit land right from 1958 to 1973 in their own right and thus, have become the owners by adverse possession and the finding to the contrary was wrong. In my view, the contention is not correct. The evidence brought to my notice by the learned Counsel for the appellants does not show that the appellants were in possession of the suit land before the year 1963. In the jamabandi Exhibit P4 in the column of cultivation, Pargat Singh and others have been shown in possession of the suit land. It is for the first time that the plaintiffs were recorded in possession of the land in Rabi 1963. No Khasra girdawari has been brought on the record prior to the year 1961 to show that the plaintiffs were in possession of the suit land. The evidence on the record at the most reflects that the plaintiffs were in possession of the suit land from Rabi 1963 to June, 1974. Thus, the period of 12 years for adverse possession was not complete. Even otherwise there is no evidence to show that the possession of the plaintiffs was open and hostile to the knowledge of the true owners or that they were in possession in their own rights. Mere possession alone is not enough to establish adverse possession. I thus, do not agree with the second contention of the learned Counsel for the appellants.

The learned Counsel for the appellants referred to Sonawati and Others Vs. Sri Ram and Another, and Radha Nath Seal (dead) by his legal representatives Vs. Haripada Jana and Others, for the proposition that if the Courts below have ignored evidence from consideration or failed to consider the evidence on the record, this Court can interfere with the findings recorded. There is no quarrel with this proposition but nothing has been brought to my notice which was either not considered by the courts below or ignored from consideration.

In view of the foregoing discussion and observations made, this appeal fails and is dismissed. No costs.