Harnam Kaur and others . vs Malkiat Singh others .

S.P. Goyal, J.

The appellants filed this suit for possession of their 1/3rd share in the land in dispute measuring 2069 kanals, 6 marlas. The case set up by them was that their father Nikku Singh was the owner of the said land which on his death was mutated in the name of their mother, Smt. Raj Kaur; that Smt. Raj Kaur after coming into force of the Hindu Succession Act, had become its full owner; that consolidation of holdings took place in the village and the present Killa numbers were allotted in lieu of the land previously held by Smt. Raj Kaur and the other cosharers. However, according to jamabandi for the year 196970 prepared by the Consolidation Authorities, the defendants were shown owners of whole of the land as mutation of the estate of Smt. Raj Kaur was wrongly attested in their favour at the back of the plaintiffs which necessitated the filing of the present suit.

The contesting defendants denied the relationship of the plaintiffs with Smt. Raj Kaur and Nikku Singh. It was also denied that Nikku Singh or Smt. Raj Kaur were cosharers to the extent of 1/3rd share in the suit land. It was further pleaded by them that Smt. Raj Kaur had died in the year 1955 and the mutation of her estate was rightly sanctioned in their favour. In the alternative it was pleaded that they being in adverse possession of the land owned by Smt. Raj Kaur for the last 30 years had become its owners by prescription. It was, however, admitted that Nikku Singh was the owner of the land measuring 208 bighas 7 biswas which on his death devolved on Smt. Raj Kaur.

The trial Court after recording evidence of the parties held that the plaintiffs were the daughters of Nikku Singh and Smt. Raj Kaur; that as Smt. Raj Kaur had died prior to June 1956, the defendants were entitled to inherit her estate under custom in preference to the plaintiffs and that the suit having been filed more than 12 years after her death, the adverse possession of the defendant, had matured into full ownership. Although the trial Court found that Nikku Singh was the owner of 208 bighas 7 biswas of land which devolved on Smt. Raj Kaur on his death yet it held that the plaintiffs had failed to prove which of the land was allotted to the defendants in lieu thereof. As a result of the said finding the suit was dismissed. The finding of the trial Court having been affirmed on appeal by the learned Additional District Judge, the plaintiffs have come up in this second appeal.

There is not much dispute on facts between the parties. Strangely the approach of both the Courts below was totally erroneous and as such the findings recorded by them are unsustainable in law. Even on the finding that Smt. Raj Kaur died in the year 1955 prior to the enforcement of the Hindu Succession Act, under the custom by which the parties, being agriculturist jats were admittedly governed, the respondents being fourth degree collaterals of Nikku Singh deceased would not be preferential heirs as compared to the daughters to the estate of the deceased unless the land left by him and subjectmatter of the suit was alleged and proved to be ancestral qua the respondents. There being no allegation much less any proof that the land left by Smt. Raj Kaur was ancestral qua the respondent, the appellants were entitled to inherit the same in preference to the respondents and even the learned counsel for the respondents fairly conceded that the finding of the Courts below on this matter had to be reversed.

On the question of limitation, again, the finding of the Courts below is palpably erroneous. The suit was filed on January 11, 1971 after the enforcement of 1963 Limitation Act. Under the said Act, as held by a Division Bench of this Court in Mohinder Singh v. Kashmira Singh, 1985 PLJ 82 : 1985 R.R.R. 339 for a suit filed on the basis of the title there is no period of limitation prescribed. Therefore, the finding of the Courts below that the suit was barred by limitation having been filed after 12 years after the death of Smt. Raj Kaur cannot be sustained and is hereby reversed.

The plea of adverse possession and acquisition of title by prescription was recorded simply on the ground that the respondents had been in possession of the property for more than 12 years since the death of Smt. Raj Kaur. It is wellestablished that the possession simpliciter, however long it may be, would not be sufficient in law to perfect the title by prescription unless it is shown that the possession was open and hostile to the knowledge of the true owner. In the present case, Jangir Singh D.W.2 who only appeared as a witness on behalf of the respondents admitted that they were in possession of the land in dispute even during the life time of Smt. Raj Kaur and each branch of the collaterals was paying her 1/2 maund wheat every year. This statement obviously means that the respondents were in possession of the land in the life time of Smt. Raj Kaur either as tenants or as licensees. Smt. Raj Kaur died during the consolidation operations and the mutation of her inheritance was attested in favour of the respondents at the back of the appellants without issuing them any notice. Apart from the mutation no other overt act was alleged or proved on the part of the respondents which could show that they were holding the land in denial of the title of the respondents to their knowledge. The assertion of the hostile title at best could be inferred from the year 196970 when in the jamabandi prepared by the Consolidation Authorities the respondents had been entered as owners to the exclusion of the appellants. There was thus no evidence on the record to show that the respondents were claiming to be in adverse possession of the land in dispute openly and to the knowledge of the appellants for more than 12 years prior to the date of the suit. Moreover, the nature of the possession of the respondents being permissive in the life time of Smt. Raj Kaur could not turn into hostile possession unless by some overt act they had openly and to the knowledge of the appellants claimed ownership in derogation to the right to the appellants to their knowledge. That apart, the respondents after the death of Smt. Raj Kaur claimed themselves to be the lawful heirs of her estate and in possession of the land in dispute as such. In these circumstances, as held by a Division Bench of this Court in Mt. Bhago v. Deep Chand Harphul, AIR 1964 Punjab 187, it could not be said that the respondents were claiming any hostile or adverse possession against the appellants who under the law were the legal heirs of the deceased. The two decisions relied upon by the learned counsel for the respondents in Sardar Amar Singh v. Sardarni Shiv Dutt Kaur, AIR 1937 Lahore 890 and Lingamma v. Putta Gowda, AIR 1963 Mysore 1 are distinguishable on facts and have no bearing on the present case. In Lingamma''s case (supra), the suit had been filed prior to the enforcement of 1963 Limitation Act. As the suit on the basis of title was governed by the Limitation Act of 1908, it was held that the plaintiff had to prove not only his title to the suit property but also that he was in possession of the same within 12 years from the date of the suit. As already noticed above, there is no period of limitation prescribed for a suit on the basis of title under the 1963 Act and as such this decision is of no help to the respondents. In Amar Singh''s case (supra) it was held that the removal of the name of the absentee cosharer from the revenue records at the instance of other cosharers in possession of the land is an overt act amounting ouster and commences adverse possession of the co shareres in possession even if no notice of removal is sent to the absentee cosharer whose name has been removed. The reason given is that the removal of name is done openly and if the absentee cosharer takes any interest at all in the land he cannot fail to have notice of it in the ordinary course and hence his knowledge of adverse claim by other cosharers may be reasonably presumed. I have my doubts about the correctness of the rule laid down in this decision but it is not necessary to record my dissent because even on the above ratio it would not be possible to record a finding of adverse possession in favour of the respondents on the facts and circumstances proved in this case. A mere attestation of mutation at the back of the appellants would not be sufficient to raise a presumption that they had knowledge of the assertion of hostile title. In the revenue record their names were removed for the first time in the Jamabandi relating to the year 196970. So on the ratio of the above decision the appellants could be ascribed with the knowledge of hostile title for the first time in the year 1969, that is, only two years prior to the date of the suit. Consequently, on the facts and circumstances of the case, no finding of adverse possession could be recorded in favour of the respondents and both the Courts below erred in law in sustaining the plea of hostile title.

The finding of the Courts below that there was no evidence to prove that no part of the land in dispute was allotted to the respondents in lieu of the land of Smt. Raj Kaur also cannot be sustained. It has been admitted by respondent Jagir Singh that the value in terms of standard acres of the land of Smt. Raj Kaur was distributed amongst all the branches in equal shares and counted towards the determination of their entitlement. As to what was the value in terms of standard acres of the land of Smt. Raj Kaur which was distributed amongst the various branches no evidence was led by the parties but for that reason the claim of the appellants cannot be defeated. As it is necessary to find out the exact valuation to do complete justice between the parties and to enable the Court to pass an effective decree, the case is sent back to the trial Court for making a report in this regard. The trial Court may either call upon the parties to produce the necessary evidence or appoint some revenue officer as Commission to determine the said value. The parties, through their counsel, have been directed to appear in the trial Court on September 1, 1986.