Daya Singh vs Gita Ram and Others

Vinod K. Sharma, J.—Plaintiff/Appellant by way of this regular second appeal has challenged the judgment and decree dated 15.1.1985, passed by the learned courts below dismissing the suit filed by the Plaintiff/Appellant for possession.

Pleaded case of the Plaintiff/Appellant was that he was owner of the suit land, and the Defendants were in unauthorised possession, forcibly and illegally.

The suit was contested by the Defendant-Respondents by pleading therein that predecessor-in-interest of the Plaintiff/Appellant had filed an application for partition of land, including the suit land before Assistant Collector First Grade, Narwana. In the said application it was ordered that the predecessor-in-interest of the Plaintiff should move the civil court to prove their title to the suit land. No suit was filed and therefore, the Defendant/Respondents became owners of the suit land by way of adverse possession, as their possession was open and hostile for the last more than 20 years.

In the replication, averments made in the plaint were reiterated and that of the written statement were denied.

On the pleadings of the parties, learned trial court framed the following issues:

Whether the Plaintiff is the owner of the suit land as alleged?

Whether the suit is within time? OPP

Whether the Defendant have become owners of the suit land by adverse possession? OPD

Whether the suit is not maintainable? OPD

Whether the suit is not maintainable? OPD

Whether the Defendants are not the sons of Puran. If so its effect? OPD

Whether the Plaintiff has no cause of action to file the present suit? OPD

Relief.

On appreciation of evidence, learned trial court decided issue No. 1 in favour of the Plaintiff/Appellant. In order to reach to this conclusion learned trial court, considered the evidence led by the Plaintiff/Appellant wherein he had claimed to be the owner of the suit land as per Jamabandi Ex.P.10. It was the case of the Plaintiff/Appellant, that as presumption of truth was attached to Jamabandis, therefore, he was proved to be the owner of the suit property having purchased it from Shiv Lal etc. Reliance was also placed on mutation Ex.P.9. The Defendants had not led any evidence on this point. The learned trial court held that the evidence led by the Plaintiff went unrebutted, therefore, the Plaintiff/Appellant was the owner of the suit land.

Issues No. 2, 3 and 4 were taken up together.

Learned trial court referred to the statement of the Plaintiff/Appellant, wherein it was averred that the Defendants had taken possession of the suit property forcibly in the year 1974 and they were in possession of the same since then. Reference was made to Ex.P.6 and Ex.P.7 i.e. Jamabandis for the year 1966-67 and 1967-68 in which Shiv Lal one of the predecessors-in-interest of the Plaintiff was shown to be in possession of the land in capacity of owner. Even in jamabandi Ex.P.4 and Ex.P.5 for the year 1972-73, the Plaintiff was recorded as owner in cultivating possession of the suit land along with his predecessor-in-interest. Even in Khasra Girdawari Ex.P.2 and P.3 from 20.10.1978 to 29.3.1981, Plaintiff is shown to be in cultivating possession of the suit land, along with his predecessors-in-interest. Plaintiff claimed, that he was recorded as owner in possession of the suit land from date of his purchase, and he remained in possession till 1974 when the Defendants forcibly evicted him.

It was claimed that the suit was filed within 12 years from 1974 and therefore, the Defendants could not claim to be the owner by way of adverse possession.

Defendants led evidence, to prove that the Defendants were in possession of the suit property for more than 50 years Shri Daya Singh was never seen in cultivating possession. Evidence was also led to show that the Plaintiff never resided at Petwall nor that he was in possession of the suit land. DW 5 Ram Singh of adjoining land deposed that the Defendants/Respondents were in possession for the last 50 years.

The learned court also took note of the fact that according to jamabandis for the Samvat 1940-41 to 1997-98, Ex.D.3 to Ex.D.17, the predecessors-in-interest of the Defendants were recorded as owners of the suit land, whereas the predecessors-in-interest of he Plaintiff, were shown as absentee owners till 1952-53 as per Jamabandi Ex.D.14.

The learned court found that it was also the case of the Defendant/Respondents that the words ''absentee owners'' did not appear in the jamabandi for the year 1960-61, Ex.D.15, but without there being any order of change of Girdawaris.

The Defendant/Respondents had filed a suit, for declaration that they had become owners of the suit property by way of adverse possession, but the suit was dismissed on 30.8.1965.

After dismissal of the suit, the predecessors-in-interest of the Plaintiff filed an application for partition of the suit land which was contested by the Defendant/Respondents and ownership of the predecessors-in-interest of the Plaintiff was disputed. It was in that situation that the parties were referred to civil court. The learned court found that in spite of the order, the predecessors-in-interest of the Plaintiff or Plaintiff failed to take any steps to get the actual physical possession of the suit land, therefore, presumption of truth attached to the jamabandis, on which reliance was placed by the Plaintiff/Appellant stood rebutted The learned trial court also held that the Defendant-Respondents were in hostile possession of the suit land by openly declaring their intention, in the written statement Ex.D.18 since 21.4.1967 and thus, had become owners by way of adverse possession.

Learned appellate court on the basis of evidence and contentions raised came to the conclusion that the first question which required to be determined was whether predecessor-in-interest of the Plaintiff was in actual physical possession of the suit land on 21.4.1967 or they obtained the same thereafter.

Second question which required determination was whether the Plaintiff/Appellant got physical possession of the suit land from his predecessors-in-interest and the third question to be answered was that if it is found that neither the predecessors-in-interest of the Plaintiff nor the Plaintiff got possession then the possession of Defendants being co-sharers was hostile and that the Defendants had become owners, by way of adverse possession, in view of the documentary and oral evidence on record. Learned trial court answered the first two questions against the Plaintiff.

On third question, which was question of law, learned trial court considered the argument that the possession of one co-sharer is deemed to be possession of all co-sharers, even if one of the co-sharers is out of possession, he is deemed to be in possession. Learned trial court placed reliance on the judgment of this Court in the case of Mst. Bui v. Gurdeep Singh 1976 PLJ 345, to non-suit the Plaintiff/Appellant wherein this Court was pleased to lay down as under:

Possession of a co-owner is on behalf of all the co-owners. It is based on the principle that when possession of property can be referred to lawful title it would not be considered to be adverse. The possession of one-co-owner who is entitled to be in possession of the property has to be referred to the joint title and cannot be considered adverse to the other co-owner(s). The expression "adverse possession" means hostile possession i.e possession which expressly and impliedly is denial of the title of the co-owner. Since a co-owner can be in exclusive possession of whole of the property on account of the Joint title he cannot advance the plea simply on account of his exclusive possession or on the ground of non-participation in the profits of the property by the other co-owner in possession. In order to sustain a plea of adverse possession co-owner in occupation of the property has to prove ouster of the other co-owner(s) or at least something equivalent to it. The test of ouster is that the co-owner(s) in possession has openly and unequivocally and to the knowledge of the other co-owner(s) denied their title to the property. To put it differently, co-owner who puts forth the plea of adverse possession against the other co-owner(s) has to prove that his possession of the joint property had been in consistent with the character as co-owner.

Appeal filed by the Plaintiff/Appellant also stand dismissed by the learned Additional District Judge, Jind (I). Mr. H.S. Hooda, learned senior counsel for the Appellant contended, that the appeal raises the following substantial questions of law for consideration by this Court:

Whether a co-owner could claim his possession to be adverse to other co-owners?

Whether the judgment and decree passed by the learned courts below is the outcome of misreading of oral and documentary evidence and, thus, perverse?

In support of the substantial questions of law referred to above, learned senior counsel appearing on behalf of the Appellant contended, that once it was proved that the Defendant/Respondents were co-owners with the predecessors-in-interest of the Plaintiff, the possession of the Defendant/Respondents could not be said to be hostile. It was also the contention of the learned senior counsel that the earlier suit filed by the Defendant-Respondents, seeking declaration of ownership by way of adverse possession was dismissed, therefore, it could not be said that the Defendant-Respondents had become owners by way of adverse possession. The Plaintiff, therefore, was entitled to possession being proved owner of the suit land.

Learned senior counsel for the Appellant also contended, that Hon''ble Supreme Court has observed that the law with regard to the adverse possession needs to be re-looked and changed.

Learned senior counsel for the Appellant also referred to the Jamabandi in favour of the Plaintiff/Appellant to contend, that once he was shown to be owner in possession in pursuance to the sale deed, the judgment holding that the Defendant/Respondents had become owners by adverse possession is nothing but the outcome of misreading of evidence.

However, on consideration, I find no force in the contentions raised by the learned senior counsel for the Appellant.

There can be no dispute with the proposition that co-owner holds the property on behalf of all other co-owners and his possession cannot be said to be adverse to other co-sharers. At the same time it has to be seen that this Court in the case of Mst. Bui v. Gurdeep Singh (supra), has been pleased to lay down that in order to sustain a plea of adverse possession a co-owner in occupation has to prove the ouster of other co-owner or at least something equivalent to it, which can prove hostile possession, openly and unequivocally to the knowledge of other co-owners. This can be done by denying their title to the property to their knowledge.

In this case, when the application for partition was moved, the Defendant/Respondents denied the title of the predecessors-in-interest of the Plaintiff. It was on account of this that parties were directed to get their title decided from the civil court.

However, for the reasons best known to the Plaintiff or their predecessors-in-interest, they did not take any step in this regard for more than 12 years, it was on this account, that the Defendant/Respondents were held to have perfected their title by way of adverse possession, as their possession was open and hostile to the real owner.

There is nothing on record which could show that there was any misreading of documentary or oral evidence, nor the findings can be said to be perverse. Concurrent finding of fact recorded on appreciation of evidence is not open to challenge in regular second appeal.

For the reasons stated above, substantial questions of law, are answered against the Appellant. Consequently, this regular second appeal is ordered to be dismissed, but with no order as to costs.