Ganga Ram & Others vs Kali Dass & Others

Vivek Singh Thakur, J

Appellants have preferred this Regular Second Appeal under Section 100 of Code of Civil Procedure (in short ‘CPC’) against judgment and decree dated 21.4.2005 titled Nantu and others vs. Kali Dass and others passed by learned District Judge Kullu, District Kullu in Civil Appeal No. 47 of 2000 whereby judgment and decree dated 29.2.2000 passed by learned Sub Judge First Class, Manali, District Kullu in Civil Suit No. 18/98/96, titled Kali Dass and others vs. Nantu and others, has been affirmed.

2 For convenience, parties hereinafter shall be referred according to their status in Civil Suit i.e. plaintiffs and defendants respectively.

3 Suit land was owned and possessed by one Kekti. Plaintiffs filed a suit for declaration with consequential relief of injunction against the defendants claiming that they were joint owners having right over half share of land comprised in Khata/Khatuani No. 56/101 to 103, Khasra Nos. 482, 562, 574, 755, 828, 415, 458, 460, 486, 538, 616, 1226, 1233, 1242 and 457, Kita 15 measuring 22-11-00 bighas described in jamabandi for the year 1988-89 situated in Phati Hallan-II, Kothi Baragarh, Tehsil Manali, District Kullu excluding the land comprised in Khasra No. 457, measuring four biswas which was in possession of Devta Shri Dhumal (hereinafter to be referred as suit land), and further that entries to the contrary were wrong and incorrect and they were entitled to get their half share partitioned in the suit land by initiating partition proceedings and to seek consequential relief of injunction restraining the defendants from ousting the plaintiffs from their joint ownership and possession in the suit land.

4 Defendants No. 1 to 3 claimed that their father Lachhi, who was son of Kekti, after death of Kekti remained in possession of entire suit land and there was complete ouster of plaintiffs and entries showing them as joint owners in possession of suit land were wrong and in correct and mutation No. 363 dated 15.4.1946 attested and sanctioned in favour of plaintiffs regarding transfer of half share in suit land by Kekti by way of gift to predecessor-in-interest of plaintiffs had been manipulated by plaintiffs which was not complete without delivery of possession and thus, plaintiffs had no right in suit land.

5 Defendant No.4 is purchaser of some portion of land from defendants No.1 to 3.

6 On conclusion of trial, trial Court decreed the suit in favour of plaintiffs declaring that plaintiffs were owners in joint possession of suit land to the extent of half share and, restraining the defendants from dispossessing the plaintiffs from joint possession of suit land till its legal partition by metes and bounds.

7 Defendants assailed the aforesaid judgment and decree by filing appeal before the District Judge, Kullu. During pendency of appeal, defendants filed an application under Order 6 Rule 17 CPC to claim right over the suit land by virtue of adverse possession but the said application was dismissed by District Judge on 8.3.2001. However in Civil Revision No. 30 of 2001, preferred against order dated 8.3.2001 in the High Court, the High Court allowed the amendment of written statement and thereafter amended written statement was taken on record and after filing of replication to amended written statement, additional issue was framed on the basis of amended written statement as Issue No. 7A that as to whether defendants had become owners by virtue of adverse possession with onus upon defendants to prove the same. Thereafter, both parties were granted one opportunity to lead evidence. Defendants examined Ganga Ram as AW1 and tendered in evidence the copies of jamabandis Ext.A-1 to Ext.A-10. Plaintiffs, in rebuttal, had examined RW1 Bhoop Ram. After recording of evidence, District Judge decided the appeal on the basis of material on record by returning findings on issue No. 7A. It was concluded by District Judge that defendants had failed to prove that they had become owners of suit land by virtue of adverse possession with further observation that on record contrary to that had been established that suit land was owned and possessed jointly by plaintiffs and defendants, having right therein to the extent of half share each which was partitionable.

8 On preferring appeal by defendants, feeling aggrieved and dissatisfied with aforesaid judgments, the same was admitted on 19.07.2005 on following substantial questions of law:-

Whether the Lower Appellate Court has committed grave error of law and procedure in not remitting Issue No.7-A framed by the Lower Appellate Court, after the amendment of written statement was permitted by the Hon’ble High Court, to the trial Court for returning finding on such additional issue? Has not the same materially affected the right of appeal on the defendants-appellants thereby causing grave prejudice resulting in failure of justice?

Whether the Lower Appellate Court has wrongly decided Issue No. 7-A when exclusive possession of the defendants-appellants on the entire suit land was proved in assertion of their title as owners, which fully matured into exclusive title after expiry of 12 years from the date of the gift in favour of the plaintiffs made by late Smt. Kekti i.e. in the year 1958? Was not the suit liable to be dismissed being hopelessly barred by limitation? Have not both the Courts below wrongly determined Issue No.7 without rendering any finding by discussing pleadings oral and documentary evidence?

Whether both the Courts below have committed grave error of law in misconstruing the pleadings and evidence to hold that the parties are co-owners in joint possession and in absence of proof of ouster by the defendants-appellants their possession ought to be recorded as possession on behalf of all? Are not such findings erroneous and perverse being contrary to the entries in the revenue record which carries with them presumption of truth?

9 I have heard learned counsel for parties at length and gone through the record.

10 Amendment in written statement was permitted by High Court which was sought by defendants during pendency of appeal before District Judge and thereafter, District Judge allowed the parties to complete the pleadings and after framing additional Issue No.7A, District Judge permitted the parties to lead evidence. Contesting defendants led the evidence and thereafter plaintiffs led evidence in defence. At that time, neither before High Court nor before District Judge, defendants ever raised a point to remand the case to trial Court for adjudication of additionally framed issue No.7A. Rather, they led the evidence and contested the said issue No.7A in appeal and after adjudication thereof, final judgment and decree was passed by the District Judge. Therefore, in my opinion defendants cannot be allowed to raise such plea in second appeal for waivers and acquiescence on their part.

11 Plaintiffs are claiming their right on half share of property on the basis of oral gift by Kekti on the basis of which mutation was attested and sanctioned in favour of predecessors-in-interest of plaintiffs on 18.4.1946, copy whereof has been placed on record as Ext.PD with translated copy Ext.PD-1 by virtue of which plaintiffs/predecessors-in-interest of plaintiffs became co-sharers/co-owners with right of ownership to the extent of half share of suit land.

12 Another mutation Ext.PA has been placed by plaintiffs along with its translation which indicates that on 15.12.1948 Patwari Halqua had recorded Rapat No. 7 about transfer of half share in suit land by Kekti in favour of Lachhi Ram by way of sale for consideration of Rs.1100/- which was endorsed by Kanungo on 18.12.1948 and mutation in this regard was attested and sanctioned on 26.1.1949 by Assistant Collector. Copies of jamabandis for the year 1945-46 Ext.PB, 1988-89 Ext.PE also establish joint ownership of Kekti and predecessors-in-interest of plaintiffs having half share each and later on, joint ownership of defendants No. 1 to 3 and plaintiffs having right of ownership of half share each and possession of Devta Dhumal on four biswas of land comprised in Khasra No. 457.

13 In evidence led by defendants, after framing of issue No. 7A, they have placed on record Missal Hakiyat Bandobast for the year 1946-47 Ext.A-1, jamabandis for the years 1950-51 Ext.A-2, 1954-55 Ext.A-3, 1958-59 Ext.A4, 1962-63 Ext.A5, 1967-68 Ext.A6, 1973-74 Ext.A7, 1978-79 Ext.A8, 1983-84 Ext.A9 and 1988-89 Ext.A10. No doubt, all these jamabandis depict possession of defendants No. 1 to 3 in the column of cultivator. However, in all these jamabandis, defendants No. 1 to 3 are co-owners with plaintiffs and they have been shown cultivating the land as shareholders. None of the documents on record, in evidence, proves possession of defendants in exclusion or ouster of co-owners/plaintiffs. Defendants No. 1 to 3 being co-owners of property have rightly been held by Courts below in possession on behalf of all co-owners in absence of any positive evidence substantiating the plea of defendants regarding explicit ouster of plaintiffs from joint ownership and possession. Therefore, findings returned at the time of deciding issue No. 7A, that defendants have failed to prove their entitlement on the basis of adverse possession upon suit land, are in consonance with material placed on record in evidence.

14 It is also noticeable that Kekti gifted the land to plaintiffs/predecessors-in-interest of plaintiffs in the year 1946 whereas Lachhi, father of defendants No.1 to 3, came in possession of suit land through Kekti on the basis of ownership of remaining half share of Kekti as evident from copy of mutation Ext.PA. At no point of time, defendants have been recorded owners in possession or even in possession in exclusion of plaintiffs. Kekti, after transferring half suit land in favour of plaintiffs or predecessors-in-interest of plaintiffs, they had become co-owner and thereafter, Kekti transferred remaining half share to Lachhi and by entering into the shoes of Kekti, Lachhi also became owner in possession. Defendants No. 1 to 3 inherited the right of Lachhi. Therefore, their right cannot be better than Lachhi.

15 For the evidence on record, claim of defendants that after expiry of 12 years from the date of gift in favour of plaintiffs made by Kekti, i.e. in the year 1958, defendants had become owners of entire suit land by way of adverse possession, has been rightly rejected by the District Judge. It is settled law that possession of a co-owner in joint property, is a possession of all, unless exclusion of co-sharers is established by leading cogent and trustworthy evidence on record. Evidence led on the part of defendants, is lacking on this count. Therefore, I do not find any illegality, irregularity, perversity or error of law on the part of District Judge in passing the impugned judgment and decree much less material illegality or irregularity in passing the impugned judgment and decree. Above referred substantial questions of law are answered accordingly against the defendants and in favour of plaintiffs.

Accodingly, appeal is dismissed being devoid of any merit.