Dr. Sita Ram (Dead) Through His Lrs. vs Ashok Kumar (Dead) Through His LRs.

Ajay Kumar Mittal, J.—Being unsuccessful before the courts below, the plaintiff has approached this Court by way of present regular second appeal against the judgment and decree dated 23.11.1985 passed by the first appellate court and the trial court dated 8.3.1982 whereby the suit of the plaintiff for separate possession, was dismissed. Put succinctly, the facts of the case are that the plaintiff filed a suit for separate possession of his 1/2 share by effecting partition of the house situated in Dewane Street, Nabha (hereinafter referred to as "the suit property") as shown in the site plan attached with the plaint. It was pleaded that the suit property was owned by Kanwar Sain and he had three sons, namely, Hari Ram, Bhagwan Dass and Dr. Sita Ram (plaintiff). On the death of said Kanwar Sain, the suit property devolved upon the plaintiff and his brothers in equal shares. One of the brothers, namely, Hari Ram bequeathed his 1/3rd share in the suit property to his remaining two brothers in equal shares who became owners of the suit property to the extent of one half share each. It was further pleaded that Bhagwan Dass died and defendants No. 1 to 6 being his legal heirs were co-sharers/co-owners to the extent of one half share in the suit property. The plaintiff wanted to partition the suit property by metes and bounds and he filed the suit, as mentioned above.

Upon notice, defendant No. 1-Ashok Kumar contested the suit by filing a written statement and raising various preliminary objections therein. It was pleaded that father of defendant No. 1 was the sole owner of the suit property and the plaintiff and Hari Ram had no right in it. The suit property was mortgaged by Kanwar Sain with Dharamarth Bank Nabha and the mortgage money was paid by Bhagwan Dass from his salary who was in possession of the suit property having been subrogated as a mortgagee. It was further pleaded that the mortgage was not redeemed by the plaintiff and the time for redemption had expired. The defendant No. 1 and other heirs of Bhagwan Singh were in possession as owners of the suit property. Defendant No. 1 claimed that he was in adverse possession of the suit property for the last more than 30 years. It was also pleaded that said Bhagwan Dass died and on the basis of Will dated 28.2.1969, defendant No. 1 and Sharda were his legal heirs. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made.

Defendant No. 2 filed a written statement admitting the claim of the plaintiff whereas defendant No. 3 died during the pendency of the suit and defendants No. 4 to 6 were proceeded against ex parte.

From the pleadings of the parties, the trial court framed the following issues:

Whether the plaintiff is co-sharer of the house in dispute? If so what is his share? OPP

Whether the suit is not within time? OPD

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

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

Whether Ashok Kumar has become the owner by adverse possession of the house in dispute as alleged in para No. 2? OPD

5A. Whether Bhagwan Dass has paid the mortgage money of Rs. 2788.3 Annex to the State Bank and was subrogated as a mortgagee? OPD

5B. Whether defendant is entitled to Rs. 10,000/- as improvement? If so its effect? OPD

5C. Whether the right of redemption is time barred? OPD

5D. Whether the defendant can claim the improvement without payment of court fee? OPP

5E. Whether the amended written statement is not in accordance with the order of the Court? OPP

Relief.

The trial court took issues No. 1, 2, 5A and 5C together being interconnected and on appreciation of the oral as well as documentary evidence led by the parties decided the said issues in favour of the defendants holding that after the death of Bhagwan Dass, they being his legal heirs were in possession of the suit property as mortgagees and since the period of limitation for redemption had expired, as such, they had become owner of the same. Therefore, the plaintiff had got no interest in the suit property claiming to be a cosharer. It was further held that since Bhagwan Dass paid the mortgage amount and got the house redeemed, he was subrogated as mortgagee. Issues No. 3 and 4 were decided in favour of the plaintiff and against the defendants holding that the suit was properly valued for the purposes of court fee and jurisdiction and that the suit was not had for misjoinder and non-joinder of parties. Further, the trial court decided issue No. 5 in favour of the defendant holding that Ashok Kumar became the owner of the suit property by way of adverse possession. Issues No. 5B and 5C were decided against the defendants whereas issue No. 5E was decided against the plaintiff. Accordingly, the trial court vide judgment and decree dated 8.3.1982 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff took the matter in appeal and the lower appellate court vide judgment and decree dated 23.11.1985 affirmed the findings recorded by the trial court except on issue No. 1 and dismissed the appeal. The finding relating to the plaintiff not being cosharer, however, was reversed while adjudicating issue No. 1. In other words, the plaintiff was held to be co-sharer with his brother Bhagwan Dass and after the death of Bhagwan Dass with the defendants who are the legal heirs of deceased Bhagwan Dass.

Learned counsel for the parties have been heard at length. Besides challenging the findings recorded by the courts below on the ground of result of misreading of evidence, the arguments have also been raised on various legal issues. According to the learned counsel for the appellant, the appeal raises the following substantial questions of law:-

Whether the impugned judgments and decrees are perverse in law because the learned courts below considered inadmissible evidence in the form of documents Ex. D-2 to D-6 and Ex. D-7 which documents have come into existence after institution of the suit on 28.4.1975?

Whether the impugned judgments are perverse because the learned courts below relied upon documents Ex. D-2 to D-6 and D-14 to D-27, which relates to payment of house tax/property tax, and are not relevant to support the plea of adverse possession?

Whether the courts below were justified in law to frame issue No. 5 and adjudicate the same when the respondent-defendant Ashok Kumar had not pleaded ownership by adverse possession in the amended written statement dated 19.1.1978?

Mr. Gaurav Mohunta, learned counsel for the appellant supporting the findings of the courts below on issue No. 1 submitted that the property in dispute was the individual property of L. Kanwar Sain who died in 1928 and redemption had taken place in 1925, i.e. during his life time. Further, the lower appellate court had reversed the findings on issue No. 1 and had held the plaintiff to be co-sharer and the said finding has not been challenged either by filing cross appeal or cross objections by the defendants. Relying upon the judgment of the Apex Court in Choudhary Sahu (Dead) by LRs v. State of Bihar and Choudhary Sahu (Dead) by Lrs Vs. State of Bihar, , it was urged that in the absence of cross objections or cross appeal having been filed, no challenge can be laid to such findings and even resort to Order 41 Rule 33 of the CPC (hereinafter referred to as "the Code") was legally not permissible.

Learned counsel argued that the principles of Transfer of Property Act, 1882 (in short "the Act") were not applicable as held in Meham Singh v. Prem Kumar,2 AIR 1955 Pepsu 145, Smt. Dura Devi v. Parmeshwari Dass,3 1970 CLJ 482, Shri Jamiat Singh v. State of Punjab,4 1984 P.L.J. 256 and Ram Kishan v. Sheo Ram? (2008)149 P.L.R. 1 (F.B.). On the strength of judgment reported in Bhag Singh v. Mr. Santi6 AIR 1952 Pepsu 74, it was contended that the principle of subrogation contained in Sections 91 and 92 of the Act would not be attracted in view of the following observations noticed therein:-

I may also mention that even if the defendants did redeem the previous mortgages they could not be subrogated to the rights of the mortgagees. According to S. 92 of the T.P. Act, the principles of which apply to this State as they do in the rest of india where the Act was not in force, the right of subrogation could be claimed by a person referred to in S. 91 who redeems a mortgage. Section 91 lays down that besides the mortgagor the following persons may redeem or institute a suit for redemption of the mortgaged property, viz. (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; and (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.

According to the learned counsel, the defendants did not fulfill any of the afore stated conditions and, therefore, redemption did not confer any right on them.

It was next submitted that the findings on issues No. 2, 5, 5A and 5C are untenable being based on misreading of evidence and, thus, perverse and legally unsustainable. The findings are result of consideration of inadmissible evidence and cannot be assigned any legal value. It was also urged that diary entries (Ex. D11 to Ex. D13) are not admissible in evidence u/s 34 of the Evidence Act as they are not books of account kept in the ordinary course of business. It being written in a single sitting, the same loses its significance. Reliance had been placed on CBI v. V.C. Shukla7, 1988(3) S.C.C. 410 and State of Bihar Vs. Radha Krishna Singh and Others, . Further, even Ex. D2 to Ex. D6 which were electricity bills and payment of municipal taxes could not be relied upon being payments made after the institution of the suit, i.e. 28.4.1975. Ex. D14 to Ex. D27 also had no evidentiary value in law. Elaborating his submission by making reference to documentary evidence, he drew the attention of the Court to Ex. P1 (Will dated 1.12.1953 executed by Hari Ram), Ex. D30 (mortgage deed), Ex. D31, Ex. D32 (demand notice). Learned counsel referred to the oral testimony of DW3 (Om Prakash) and PW5 (Dr. Sita Ram- plaintiff) during the course of arguments and pointed out that the trial court has not appreciated the Will of Hari Ram (Ex. P1) wherein it was provided as under:-

(a) According to it, all were to use the house with the consent of the other;

(b) that Hari Ram along with Bhagwan Dass have paid the mortgage money;

(c) Hari Ram was also residing in this House in 1943-44;

(d) that 1/3rd share shall devolve upon two brothers.

In respect of issue No. 5, the case of the appellant was that the plea of adverse possession having been given up in the amended written statement, issue No. 5 could not have been framed and any evidence in that regard was irrelevant and it demolishes the case regarding adverse possession. The learned counsel further argued that the findings of the courts below that defendant No. 1 Ashok Kumar had become owner by adverse possession while adjudicating issue No. 5 was beyond pleadings as per the amended written statement and was also contrary to well settled principles, on the strength of the judgment of the Hon''ble Apex Court in Prataprai N. Kothari Vs. John Braganza, and Bondar Singh and Others Vs. Nihal Singh and Others, . The evidence being beyond the pleadings could not be taken into consideration by the courts below.

It was also vehemently contended that the ingredients of adverse possession have to be established. A person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession continued. He must also show whether his possession was open and undisturbed. Reliance was placed on the judgments reported in Ganda Singh v. Ram Narain,11 (1959)61 P.L.R. 374, Parwati Bai v. Sonabai,12 (1997)115 P.L.R. 712 (S.C.) and Deva (Dead) thr. Lrs. Vs. Sajjan Kumar (Dead) by Lrs.,

Plethora of judgments was relied upon to buttress his submissions that co-sharer has a right to use the property like other cosharer and mere payment of municipal taxes, electricity bills cannot form the basis for adverse possession. Support was gathered from judgments reported in Ram Chander v. Bhim Singh,14 (2008-3)150 P.L.R. 747, Kishori Lal v. Mst. Man Bai,15 (1960)62 P.L.R. 499, Kundan (Deceased) by LR v. Hari Ram,16 1988(1) P.L.R. 376, Mst. Bui v. Gurdeep Singh,17 (1976)78 P.L.R. 449, Ram Chandra Naidu v. Sechachala Naidu,18 1996(1) R.C.R. 112 (Mad), Smt. Biro and Others Vs. Amar Singh and Others, Sadasivam Vs. K. Doraisamy, , Kuldip Mahaton and Others Vs. Bhullan Mahato (Dead) by Lrs. and Others, Janaki Pandyam v. Ganeshwar Panda,22 2001(1) R.C.R. 748 (S.C), Govindmal v. R. Perimal Chettiar,23 2007(3) R.C.R. 569 (S.C), Premendu Bhusan Mondal Vs. Sripati Ranjan Chakravarty, Veerabhadrappa and another v. Smt. Gangamma and another,25 AIR 2003 Kar 348, Deepak S. Gulalkari and Others Vs. Pundlikrao C. Bangar and Others, Gurdial Kaur Bhullar (Deceased) by L.Rs. Vs. Inderjit Singh Jeji and Others, Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others, and Bonder and Another Vs. Hem Singh (dead) by LRs. and Others,

According to him, Bhagwan Dass had also executed a Will on 28.2.1969-(Ex. D10) and adverse possession did not stand established as period of 12 years from 1969 had not expired. Further, the admitted written statement filed by defendant No. 2 substantiated the case of the plaintiff-appellants and the courts below ought to have de-creed the suit.

Controverting the submissions made by learned counsel for the appellant, Mr. Arun Nehra, learned counsel appearing for respondent No. 5 submitted that the finding recorded by the appellate court on issue No. 1 to the effect that the property in dispute was individual property of L. Kanwar Sain and the plaintiff was co-sharer was legally unsustainable and the appellate court had erred in reversing the well founded analysis of the evidence on issue No. 1 made by the trial court. He urged that the findings of the lower appellate court that the plaintiffs are co-sharers can be agitated by respondent on any ground even without filing any appeal or cross objections, in view of provisions of Order 41 Rule 33 of the Code as authoritatively held in S. Nazeer Ahmed v. State Bank of Mysore and others,30 2007(1) R.C.R. 705 (S.C). Support was also gathered from the decision in Kwdia v. Rameshwar Dass and others,31 2009(3) R.C.R. 672.

Continuing his submissions, learned counsel for the respondent argued that the house in dispute was mortgaged by Kanwar Sain and Shadi Ram jointly in 1910 with Dharmarth Bank, Nabha which was redeemed by Bhagwan Dass in 1925 when he paid the entire mortgage money. Under the circumstances, the house was ancestral property and Bhagwan Dass had an interest therein. Referance was made to Ex. P1 wherein the property in dispute was described as ancestral house and Ex. D30 (mortgage deed) which depicted it was ancestral house. Further L. Kanwar Sain was of very meager means and was not in a position to redeem the house. House was going to be auctioned in 1924 (Ex. D32) and Rs. 850/- was paid by Bhagwan Dass vide Ex. D31 which is acknowledged therein. The balance amount was also paid by him as is discernible from Ex. D11 to Ex. D13. There is no other iota of evidence to show as to who else discharged the mortgage liability. Dr. Sita Ram was doing his MBBS in 1924 as has been admitted by Dr. Sita Ram (PW5) in his cross-examination. Dr. Sita Ram never stayed in this house and the said fact finds mention in Will Ex. P1 of Han Ram. Support was also drawn from oral testimony of Ashok Kumar defendant No. 1 (DW12) and documentary evidence, i.e. Ex. D2 to Ex. D6 and Ex. D14 to Ex. D27 besides diary entries Ex. D11 to Ex. D13. Learned counsel relied upon the judgments in Valliamma Champaka Pillai Vs. Sivathanu Pillai and Others, , Shri Jamial Singh v. State of Punjab,33 1984 P.L.J. 256 and Janardhan Bhagwan Dass Vs. Sham Lal Nand Lal and Others, in support of his submissions.

According to him, with reference to material on record, the property in question was ancestral property and was not self acquired property of L. Kanwar Sain and the amount of redemption having been paid by Bhagwan Dass, he stepped into the shoes of Dharmarth bank and became subrogee and by virtue of Sections 91 and 92 of the Act, the property interest devolved upon him. He referred to Division Bench judgment of this Court in AIR 1949 254 (P & H.) wherein it had been held that the Transfer of Property Act though is not in force in the State of Punjab and Sections 82, 92 and 100 are not in terms applicable, but the principles underlying those sections have been applied as rules of justice, equity and good conscience. The mortgage being simple mortgage and the limitation for redemption having expired, therefore, Bhagwan Dass had become owner by adverse possession and the property after his demise devolved upon defendant No. 1-Ashok Kumar by succession through Will dated 28.2.1969 (Ex. D10).

It was urged that the plea of adverse possession was taken by defendant No. 1 in para 2 of the unamended written statement and in view of additional plea No. 3 in amended written statement, it could not be said that there was no such piea and issue No. 5 had been rightly framed. Alternatively, it was submitted that even if it is taken that the plea of adverse possession was not specified in so many words, but in view of para 2 of unamended written statement, the same could not be ignored. Support was gathered from the judgment of the Apex Court in Bishandayal and Sons v. State of Orissa and others,36 AIR 2001 S.C. 544 with reference to para 16 thereof which reads thus:-

There can be no dispute to the proposition that a notice under S. 80 can be waived. But the question is whether merely because in the amended written statement such a plea is not taken it amounts to waiver. This contention was argued before the appellate Court. Even otherwise we find that in the suit itself issue No. 4 had been raised as to whether or not there was a valid and appropriate notice under S. 80. Such a point having been taken in the original written statement and an issue having been raised, it was not necessary that in the amended written statement such a plea be again taken. On behalf of the respondents, reliance has been placed on the case of Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, , wherein it has been held that where the plaintiffs cause of action is against a Government and the plaint does not show that notice under S. 80 was served, it would be duty of the Court to reject the plaint. In this case the original notice was only in respect of a claim under the plaint as it originally stood. That claim was on the basis that there was a concluded contract and that the appellants had already acquired rights in the Mill and the lands. As has been fairly conceded those reliefs were not maintainable and were given up before the appellate Court. The amended plaint was on an entirely new cause of action. It was based on facts and events which took place after the filing of the original plaint. It was a fresh case. Now the claim was for specific performance of the agreement alleged to have been entered into on 29th December, 1978. Admittedly no notice under S. 80 CPC. Was given for this case. As there was an issue pertaining to notice under S. 80, the trial Court should have dealt with this aspect. The trial Court failed to do so. It was then pressed before the appellate Court. In our view the finding in the impugned judgment that the suit based on this claim was not maintainable is correct and requires no interference. If a new cause of action is being introduced a fresh notice under S. 80, CPC would be required to be given. The same not having been given, the suit on this cause of action was not maintainable.

It was also submitted that issue No. 5 having been framed and evidence led, the plea now sought to be raised was not agitated by the plaintiffs before the lower appellate court. It cannot be thrown out at this stage and no objection is permissible in view of judgments in Kunju Kesavan Vs. M.M. Philip I.C.S. and Others,

It was next pointed out that the admitted written statement of defendant No. 2 shall not bind defendant No. 1 in view of law laid down in Parbhudas Girdhardas Shah Vs. Lallubhai Khushal Mehta, wherein it has been laid down as under:-

The general rule is that an admission can only be given in evidence against the party making it and not against any other party. There are exceptions to this rule, which are laid down under Ss. 18 to 20, Evidence Act. An admission made by defendant 1 could have been proved against him, and similarly and admission of defendant 2 could have been proved against him.

Reliance was also placed on Chandi Avira v. Thomman Varkey and others,39 AIR 1951 TC 109.

Alternatively, it was urged that if it is not the ancestral property then no right vested to redeem it, and in that situation Bhagwan Dass did not step into the shoes of mortgagee bank and had become trespasser and owner by adverse possession as held in Jiwan Singh and another v. Des Raj and others,40 AIR 1982 (NOC) 306 in the following terms:-

Where a person who is not entitled to redeem the mortgage pays the mortgage money and gets into possession of the property, he does not thereby acquire the rights and liabilities of the mortgagee. His possession would not be of the mortgagee but of a trespasser. By getting into possession of the property as owner to the knowledge of the mortgagor he would acquire ownership by adverse possession on lapse of statutory period of 12 years and a suit for possession by the mortgagor on the basis of title filed after the lapse of that period would be barred by limitation under Article 65. Since there is no mortgage subsisting after redemption, a suit for redemption by the mortgagor under Article 61(a) would be incompetent.

Relying upon the decisions in Bhagat Ram v. Khetit Ram and another,41 AIR 1929 PC 110 and P.C. Purushothama Reddiar Vs. S. Perumal, , admissibility of diary entries Ex. D11 to Ex. D13 was sought to by justified. It was pleaded that the evidence may not be sufficient to conclude conclusively but was corroborative piece of evidence to support the version of the defendants.

Lastly, the learned counsel addressed that the property in dispute was redeemed by Bhagwan Dass in 1925. Kanwar Sain died in 1928. Thereafter Bhagwan Dass also expired on 14.3.1969 and had executed Will dated 18.2.1969 (Ex. D10) wherein the house in question was described as his sole property. Even Hari Ram had died on 13.4.1973 and the plaintiff filed the suit on 28.4.1975 after Bhagwan Dass and Hari Ram had died and after more than about 47 years of death of L. Kanwar Sain, his father. If he had filed the suit during the life time of his two brothers, other evidence could have been led to establish the ancestral nature of the property. The suit was filed with an intention to exploit law and to harass next generation of his brother for his undeserved gains.

Mr. Arun Jain, learned senior counsel besides reiterating the submissions made by Mr. Arun Nehra submitted that in view of the decision of the Hon''ble Supreme Court in Narayanan Rajendran and another v. Lekshmy Sarojini and others,43 2009(2) R.C.R. 287 (S.C), it was speculative litigation and not a bonafide litigation as nothing was done from 1925 to 1975.

I have given my thoughtful consideration to the respective submissions of learned counsel for the parties.

The issues that arises for consideration in this appeal may be summarized as under:-

(i) Whether the findings of courts below on issue No. 1 are legally sustainable. In the absence of any cross objections filed by the respondents, in view of Order 41 Rule 33 of the Code, the defendant-respondent is entitled to challenge the same? Whether there was any right of subrogation in favour of the defendant?

(ii) Whether any evidence could be looked into and issue No. 5 framed without there being any specific plea relating to adverse possession raised in amended written statement?

(iii) Whether diary entries (Ex. D11 to Ex. D13) were admissible u/s 34 of the Evidence Act. Any finding could be based on documents Ex. D14 to Ex. D27 relating to payment of electricity bills and municipal taxes and also Ex. D2 to Ex. D6. If not, its effect on the findings recorded by the courts below and whether the findings of the courts below on issues No. 2, 5, 5A and 5C are based on misreading of evidence and inadmissible evidence and stands vitiated?

Taking up issue (i), it would be expedient to refer to Order 41 Rule 33 of the Code which reads thus:-

Power of Court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection:

Provided that the Appellate Court shall not make any order u/s 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

Order 41 Rule 33 of the Code is an enabling provision and empowers the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may require, even if the party or parties may not have filed any appeal or cross objections. This power has been conferred on the appellate court in order to do complete justice between the parties.

Defining the scope of the aforesaid provision, the Hon''ble Apex Court in S. Nazeer Ahmed''s case (supra) had observed in para 7 as under:-

The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order XLI Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order II Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of pros-objections, was not entitled to canvass the correctness of the finding on the bar of Order II Rule 2 rendered by the trial court.

In view of the above, it cannot be said that the respondent would not be entitled to challenge the findings of the lower appellate court on issue No. 1 whether the property in dispute was ancestral in the hands of L. Kanwar Sain or his individual property. For ascertaining whether the house in dispute was ancestral property of L. Kanwar Sain or his individual property, great emphasis had been laid on Ex. P1-Will of Hari Ram dated 1.12.1953. No doubt, Ex. P1, Will of Hari Ram, had described the property in dispute as an ancestral house but at the same time, it had been categorically stated by Hari Ram that all the three brothers had been living separately since the life time of their father and the business income and expenditure of all the three was separate from one another. It was also stated that they had never resided as member of joint Hindu family. He also mentioned that they had neither deposited any income in the form of joint fund nor had purchased any joint property out of joint fund. It was no where suggested in the Will that the house in dispute was ancestral house in the hands of L. Kanwar Sain though the same was described as ancestral property so far as Hari Ram is concerned as after the death of L. Kanwar Sain in 1928, the same was inherited by all the brothers. Reference was also made to mortgage deed Ex. D30 to show that the house in dispute was mortgaged by L. Kan war Sain and his nephew Shadi Lal in 1910, the ease of the plaintiff is that two houses were jointly mortgaged by L. Kan war Sain and his nephew Sh. Shadi Lal for Rs. 2,500/- vide Ex. D30. Further, Shadi Lal in response to notice of demand Ex. D32 had specifically replied that whatever loan he had taken the same stood repaid whereas for remaining amount his uncle L. Kan war Sain had taken responsibility which was to be paid by him from his salary. However, the stand of the plaintiff was controverted by the defendants but nothing had been produced to show that the house was ancestral property in the hands of L. Kanwar Sain. The lower appellate court had concluded that the property was individual property of L. Kanwar Sain and the finding of fact recorded is not amenable to challenge in second appeal unless it is perverse being based on misreading of evidence or is a result of consideration of inadmissible evidence which is not the case here. Accordingly, the said finding is affirmed. The plaintiffs would, thus, be a co-sharer as held by the lower appellate court.

The question relating to subrogation enshrined in Sections 91 and 92 of the Act though applies in sum and substance as laid down in Ganeshi Lal''s case (supra), but in view of principles enunciated in Bhag Singh''s case (supra) noticed hereinabove, the defendant respondents cannot be held to be subrogee as the property was never ancestral property of L. Kanwar Sain in which Bhagwan Dass had any prior interest. The findings of the lower appellate court on issue No. 1, thus, calls for no interference.

Adverting to issue No. (ii), it would be expedient to quote additional plea No. 3 taken by defendant No. 1-respondent in the amended written statement, which reds thus:-

That the plaintiff is not entitled to any relief and the suit is liable to be dismissed on the score that the predecessor in interest of defendant no. 2 Shri Bhagwan Dass Kaura paid the mortgage money of Rs. 2788/3 annas to the State Bank Dharamarth Nabha with which the property in dispute was mortgaged and was subrogated to the position of the mortgagee. Since the mortgage took place earlier than 1967 Bikrami, so the right for redemption has become barred and the defendant became full owner of the property.

A plain reading of the aforesaid additional plea clearly spells out that the question relating to ownership by adverse possession is embedded therein. Moreover, the trial court had framed issue No. 5 in that regard and the parties understanding each others case had led evidence in respect thereof.

The Hon''ble Supreme Court in Nedunuri Kameswaramma Vs. Sampati Subba Rao, had recorded that where the parties went to trial knowing fully the rival case and had produced the evidence not only in support of their pleas but also controverting those of the other side and the evidence which had been led in the case was sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer, it could not be held that the absence of an issue was fatal to the case.

Following the aforesaid judgment, the Apex Court in Kannan (dead) by LRs and others v. V.S. Pandurangam (Dead) by LRs and others,46 2008(1) R.C.R. (Civil) 193 in paras 11 and 12 had noticed as under:-

By a series of decisions of this court it has been settled that omission to frame an issue as required under Order XIV Rule 1 CPC would not vitiate the trial in a suit where the parties went to trial fully knowing the rival case and led evidence in support of their respective contentions and to refute the contentions of the other side vide Nedunuri Kameswaramma Vs. Sampati Subba Rao,

In Sayeda Akhtar Vs. Abdul Ahad, it was held by this Court that even if no specific issue has been framed but if the parties were aware of that issue and have led evidence on it, the Appellate Court should not interfere with the findings of the trial Court. A similar view was taken in Kali Prasad Agarwall and Others Vs. Bharat Coking Coal Limited and Others, (vide paragraph 19) and in Shaik Mohammed Umar Saheb Vs. Kaleskar Hasham Karimsab and Others, (vide paragraph 9) as well as in several other decisions.

In view of the above, in such circumstances, the plaintiff appellant is not justified in contending that no adjudication relating to adverse possession could be made by the courts below and the adjudication by the courts below relating to issue No. 5 of adverse possession is permissible and within the parameters of law. Issue No. (ii) stands answered accordingly.

Lastly issue No. (iii) is a material issue requiring an answer to the question of ownership devolving upon defendant No. 1 by adverse possession. While determining whether a person has acquired full ownership rights, it has to be kept in mind that it is very stringent to divest one of his properties merely by long possession which is hostile to the knowledge of the true owner. Ordinarily, the courts are circumspect in giving any declaration relating to conferring of ownership by adverse possession. Even the Apex Court in Bonder and another''s case (supra) has held that it enters into the arena of taking away somebody''s property by illegal measures like hostile adverse possession for 12 long years. However, the law has recognized such form of ownership.

Adverting to the facts of the present case, in order to prove ownership by adverse possession, defendant No. 1 examined DW2 Sham Lal who proved bills and receipts of Municipal Committee about taxes in the form of Ex. D2 to Ex. D6. Further, Ex. D14 to Ex. D27 also help the defendant to substantiate his claim of possession of the house in dispute for long. Rent note Ex. D9 dated 25.12.1970 was executed by Shrimati Savitri Devi widow of Bhagwan Dass, mother of defendant No. 1-Ashok Kumar in favour of Parkash Chand (DW6) as owner of the house. Further, the house in dispute had been recorded as exclusive ownership of Bhagwan Dass in his Will dated 28.2.1969 Ex. D10 which was executed prior to institution of the present suit. It may be noticed that vide Ex. D32, the auction of the house in dispute was announced for non-payment of the mortgage amount. Bhagwan Dass paid the lump sum amount of Rs. 850/- to Dharmarth Bank and agreed to pay the balance in monthly installments of Rs. 150/- within a year as stated in receipt Ex. D31 on account of mortgage money. Nothing has been produced by the plaintiff in the form of documentary evidence that any money was either paid by him or by his brother Hari Ram. The plaintiffs have led no evidence to establish that they were ever in possession of the house in dispute. No doubt, Hari Ram in his Will Ex. P1 had stated that he along with his brother Bhagwan Dass had discharged the mortgage amount, but there is no iota of evidence to substantiate that averment. No other evidence to establish the contents of Will Ex. P1 has been led by the plaintiffs. L. Kanwar Sain died in 1928. Hari Ram also left this world in 1973 and Dr. Sita Ram never filed the suit during the life time of Hari Ram and Bhagwan Dass for reasons best known to him, otherwise Hari Ram could have explained his Will Ex. P1. In the absence of any cogent material to substantiate the factual matrix therein, no benefit can be derived by any party on that basis. Besides Ex. D31, there are diary entries Ex. D11 to Ex. D13. Though there is serious dispute relating to admissibility of diary entries into evidence, no finding is being recorded solely on the basis of the entries therein. It is only being taken as a corroborative evidence to support the version of the defendants as per Ex. D31. It is thus concluded that the entire mortgage money was paid by Bhagwan Dass in 1925 and the house in dispute was redeemed.

The cumulative effect of the above evidence further establishes that Bhagwan Dass was in possession of the house in dispute for more than 12 years at the time of his death and, therefore, defendant No. 1 had succeeded after his death by virtue of Will dated 28.2.1969 (Ex. D10) executed by Bhagwan Dass. The plaintiff was never in possession of the said house and there had been ouster for a period exceeding 12 years. In other words, Bhagwan Dass and after his death defendant No. 1 as his legal heir had been enjoying the house in dispute as his own property. The plea of the plaintiff that he had kept his luggage in the house in dispute remains unsubstantiated by any reliable evidence. Under the circumstances, the finding of fact recorded by the courts below on issue No. 5 holding in favour of the defendant to have perfected the title by adverse possession is based on appreciation of evidence and no fault can be found with the same. It is accordingly approved.

Before parting with the judgment, another dimension to the issue may be adverted to. In case, on the basis of plausible evidence, it could be held that the property in dispute was ancestral in nature, in that situation also as the entire redemption money was paid by Bhagwan Dass in 1925 who would become subrogee and the mortgage being simple and not having been redeemed till the filing of the suit, Bhagwan Dass and after his death his legal heir as per Will dated 28.2.1969 would be the owner of the house. Thus, viewed from any angle, the suit of the plaintiff could not succeed. In view of the above, the substantial questions of law as claimed by the appellants stands answered accordingly and finding no merit in the appeal, the same is hereby dismissed.