Harji Ram and ors. vs Mohar Singh and ors..

J.V. Gupta, J.

This is defendants second appeal against whom the suit for declaration has been decreed by both the courts below.

Land bearing Khasra Nos. 486, 490 and 493 was in cultivating possession of the father and father''s brother of the plaintiffs, vide jamabandi for the year 191718. The entry in the column of cultivation was basreh par dehi. Out of this land, the land bearing khasra No. 493, measuring 23 bighas 19 biswas vide jamabandi for the year 194546 continued to be in possession of the plaintiffs on similar terms. The possession continued up to the year 195758 whereafter there was consolidation of holdings and the land detailed in paragraph 4 of the plaint was allotted in lieu thereof. According to the plaintiffs, they and their ancestors were not liable to pay rent to anybody and, therefore, their possession had ripened into a perfect title after the lapse of 12 years. Since the defendants did not admit the claim of the plaintiffs; the present suit was filed under Order 1 Rule 8, Code of Civil Procedure against all the proprietors of pana pingal. The suit was contested inter alia on the ground that the father, and uncle of the plaintiffs never cultivated the land, as alleged. It was owned and possessed by the parties, i.e., the plaintiffs as well as the defendants were the cosharers therein. The land was actually cultivated by the pana pingal. The plaintiffs entered into possession of the land about 5 years back as the cosharers and their possession remained as such. The question of being owners by adverse possession, therefore, did not arise. The trial Court found that it was proved that the defendants were the cosharers in the suit land, but their being cosharers did not in any manner effect the perfection of the title of the plaintiffs. Consequently, the plaintiffs'' suit was decreed declaring that they had become owners by adverse possession of the land measuring 131 kanals 6 marlas as detailed in paragraph 4 of the plaint. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and, thus, maintained the decree passed in their favour. Dissatisfied with the same, the defendants have filed this second appeal in this Court.

No one is present on behalf of the plaintiffsrespondents in spite of issuance of the actual date notices.

The main argument raised on behalf of the defendantsappellants is that after having been found by both the Courts below that the plaintiffs as well as the defendants were the cosharers in the suit land since it belonged to pana pingal, the question of adverse possession of the plaintiffs even if they were shown in the revenue record as basreh parta dehi, did not arise. In support of the contention, the learned counsel relied upon Karbalai v. Mohd. Sayed, A.I.R. 1981 Supreme Court 77. It was further contended that it had been wrongly held by the lower appellate court that the suit land was given in consolidation of holdings in lieu of khasra No. 493. The statement of the Patwari, Banwari Lal, P.W.1, in this respect has been misread. He has nowhere stated that the suit land was allotted in lieu of old khasra No. 493.

After hearing the learned counsel for the appellants and going through the relevant evidence on the record, I find force in the contention raised on behalf of the appellants.

It has been found by both the Courts below that the plaintiff as well as the defendants were the coowners, as in the revenue record, in the ownership column, the proprietorship is that of pana pingal. If it is so, then in view of the Supreme Court judgment in Karbalai''s case (supra), wherein it was held:

"It is well settled that mere nonparticipation in the rent and profits of the land of a cosharer does not amount to an ouster so as to give title by adverse possession to the other cosharer in possession. Indeed even if this fact is admitted, then the legal position would be that the cosharer who is not in possession and the right of such cosharer would be deemed to be protected by the trustees."

The plaintiffs'' suit is liable to be dismissed. It has been wrongly held by both the Courts below that since the plaintiffs were not paying any rent, they had become the owners of the land by adverse possession. On the facts found by both the Courts below, no such finding could be given in favour of the plaintiffs.

Consequently, this appeal succeeds and is allowed. The judgments and decrees of the Court below are set aside and the plaintiffs'' suit is dismissed with no order as to costs.