Ishwar Dayal and Others vs Smt. Shanti Devi and Others

S.K. Jain, J.—Plaintiffs purchased land comprised of Khasra Nos. 1588 and 1589 situated in the area of village Gannaur, Tehsil and District Sonepat, vide sale deed dated 24.4.1950. Consolidation of holdings took place in the village and land measuring 7 Kanals - 2 Marias bearing Khasra Nos. 509 and 511 was allotted to them in lieu of their old holding. Through a registered gift deed, they transferred 2 Kanals - 13 Marias out of the said land in favour of Mandir Sanatan Dharam Sabha of which Ram Gopal was the Manager at the relevant time. The said Ram Gopal in collusion with the lower revenue staff got himself entered as co-sharer in possession of 2 kanals-17 Marias i.e. 1/3rd share of the total holdings, in the record of rights. So, a decree of declaration to the effect that they were owners in possession of land measuring 4 Kanals 9 Marias, fully described in the head note of the plaint and in the alternative, a decree for possession was sought. During the pendency of the suit, Ram Gopal defendant No. 1 having died, his legal representatives defendants No. 1-A to 1-J were brought on the record. Defendant No. 2 being transferee from Ram Gopal was also arrayed as party.

The case of the contesting defendants is that Ram Gopal was in possession as owner of 1/3rd share to the total land from the year 1952 to the knowledge of the plaintiffs and their predecessors but they never objected to the same. Defendant No. 2 had purchased the land in dispute from Ram Gopal by way of registered sale deed dated 24.1.1978 for a valuable consideration of Rs. 20,000/-, after having verified from the record that the title of Ram Gopal was sound. It was also contended that the plaintiffs were not in possession of the suit land for the last 12 years and hence the same was barred by limitation. Basing reliance on mutation No. 2900, it was averred on their behalf that 1/3 share of the whole of the land was transferred in favour of Ram Gopal by means of valid gift by Balwant Singh, Jog Raj and Yado Raj and possession was also delivered to him. On the pleadings of the parties, following issues were framed :-

Whether the plaintiffs are the owners in possession of the suit property, as alleged ?

Whether Balwant Singh, Yado Raj and Jog Raj had made a valid gift of the property in favour of the defendant, if so, to what effect ?

Whether the suit is within the time ?

Whether the plaintiff is estopped from filing the suit as alleged ?

Whether the plaintiff is entitled to special costs as required u/s 35 C.P.C. ?

Whether the suit has been properly valued for the purposes of Court fee and jurisdiction ?

Whether the vendees are the necessary parties to the suit, as alleged, if so, to what effect ?

Whether the plaintiffs No. 6 to 9 are the minors and have been properly represented through their next friend, as alleged. If not, to what effect ?

The following two additional issues were also framed :-

Whether defendant No. 2 is bonafide purchaser for consideration without notice, as alleged ? If so, to what effect ?

Whether defendant No. 2 had made any improvement over the suit property ? If so, to what extent and to what effect ?

The trial Court returned findings on issues No. 4 to 8 and issue No. 2 in favour of the plaintiffs but answered issues No. 1 to 2 and additional issue No. 1 against them and dismissed the suit vide his judgment and decree dated 5.4.1982.

The plaintiffs filed Civil Appeal which was also dismissed by Additional District Judge, Sonepat vide his judgment and decree dated 16.9.1985.

It is that judgment and decree of the first appellate Court which has been appealed against by the plaintiffs and which requires my examination of its sustainability.

I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and the judgments of both the Courts below.

Learned counsel for the appellants has argued, firstly, that perusal of Mutation No. 2900 Ex. D-10 would show that nobody was present before the Mutation Officer and, therefore, the mutation of transfer of 1/3rd share of the whole in favour of Ram Gopal, through Tamlik vide this document was illegal and that the basis of transfer having been knocked out the entries in the revenue record based on the said mutation are also null and void. I have carefully examined the said document. No doubt on the first page word Gair-hazir is. mentioned and this entry has been signed presumably, by the Mutation Officer on 8.2.1953 but on the back page following pedigreetable has been reproduced:-

Tirkha Ram | ------------------------------------------------------------------ Yado Raj Jog Raj Balwanl Singh Suraj | Sarjo On the foot of the said pedigreetable, the impugned order mutating the 1/3rd share of the whole has been recorded and signed by Assistant Collector IInd Grade, on 12.2.1953. The said order when translated into English would read somewhat as under :-

"Order:

In the open session Balwant Singh, Jog Raj and Yado Raj who have been identified by Tej Ram, Lamberdar, of the village have admitted that they had transferred ownership rights and possession of 1 Kanal-9 Marias being 1/3rd of total area measuring 3 kanal-6 Maria of khasra Nos. 1588 and 1589 without share in shamlat in favour of Ram Gopal through oral Tamlik. The donee has accepted the same."

From the above mutation, it is evident that on 12.2.1953 Balwant, Prcdecessor-in-interesl of plaintiffs No. 1 to 10, Yado Raj father of plaintiffs No. 11 and 12 and Yado Raj himself (plaintiffs No. 13) alongwilh Jog Raj had admitted before the Mutation Officer that they had transferred 1 Kanal-9 Marias area being 1/3rd share of tolal area measuring 3 Kanal-6 Maria comprised of Khasra Nos. 1588 and 1589 in favour of Ram Ciopal through oral Tamlik and the possession had also been delivered to him. The said mutation and subsequent entries in revenue record based on it thereby showing Ram Gopal as co-sharer in possession of 1/3rd share, were not challenged by the plaintiffs or Balwant Singh and Jog Raj for more than 25 years till the present suit was filed, Copies of Khasra girdawari Ex. D5 to Ex.D9 from kharif 1965 to kharif 1975 show Ram Gopal in possession of 1/3rd share of the total land. In Aks Sajra Ex.D-12 prepared in the year 1956-57, three co-sharers have been shown in possession of separate parcels of the total land.

In view of the above discussion, I do not find any fault with the concurrent finding of fact recorded by the two Courts below to the effect that Balwant Singh, Jog Raj and Yado Raj had made a valid gift in favour of Ram Gopal deceased in respect of 1/3rd share in Khasra Nos. 509 and 511 and had delivered possession thereof to him.

In the absence of any evidence on record to show that the value of 1/3rd share gifted to Ram Gopal was Rs. 100/- or more and that in February, 1953 provisions of Transfer of Property Act were applicable in the State of Punjab, argument of the learned counsel to the effect that gift deed could only be made through registered document u/s 123 of the Transfer of Property Act, is not tenable.

Learned counsel for the appellants has referred to the finding of the learned trial Court on issues No. 3 and 4 contained in para Nos. 1 to 3 and 14 respectively and has argued that after the enforcement of the present Limitation Act with effect from January 1, 1964, the limitation to file a suit on the basis of title starts from the date when the possession of the defendants becomes adverse and that the appellants were in adverse possession for more than 12 years prior to the filing of the suit. He has placed reliance on the ratio laid down in Buta Ram v. Tarsem Lal and Ors. 1987 P.L.J. 255. I do not find any force in this argument. Vide mutation No. 2900 Ex-D-10 Ram Gopal had become co-sharer in the whole of Khasra Nos. 509 and 511 to the extent of 1/3 rd share and was also in possession as such.

It is now well settled that possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one is actually out of possession. A mere occupation of a larger portion or even of entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all except that when there is ouster of a co-owner by another. In holding the above view, I am fortified by the ratio laid down in Bhartu v. Ram Sarup 1981 PLJ 204.

It is not the case of the plaintiffs that Ram Gopal or his successors-in-interest were ousted by them from any portion of 1/3rd share at any time. Their simple case is that only 1/3rd share of the above said khasra numbers had been gifted to Mandir Sanatan Dharam Sabha of which Ram Gopal was the Manager and that he in collusion with the revenue authorities got another 1/3rd share of the said khasra numbers entered in his name in the revenue record. Thus, there is not question of Ram Gopal or his successors-in-interest being in adverse possession of the 1/3rd share. As stated hereinbefore, Ram Gopal took possession of the said 1/3rd share as co-owner on the strength of mutation of gift by way of oral tamlik Ex. D-10.

In view of what has been stated above the concurrent finding of fact recorded by the two Courts below to the effect that the suit was hopelessly time barred cannot be interfered with.

I agree with the learned counsel for the respondents that defendant No. 2 who is a transferee from Ram Gopal, was a bonafide purchaser with valuable consideration and without notice because he purchased the land in dispute from Ram Gopal in lieu of Rs. 20,000/- vide registered sale deed Ex. DW6/a after examining the record of rights and khasra girdawaries as also mutation No. 2900. By that time, the plaintiffs had not challenged the said entries and mutation and, therefore, both the Courts below have correctly found concurrently that defendant No. 2 was a bonafide purchaser with consideration and without notice.

In view of the above discussion, no fault can be found with the concurrent findings of fact recorded by the two Courts below which are hereby affirmed.

Resultantly, this appeal fails and is hereby dismissed. No order as to costs.