Jagir Singh vs Gurdial Kaur

G.R. Majithia, J.—Jagir Singh, the unsuccessful plaintiff, has come up in regular second appeal against the judgment and decree of the first appellate Court, reversing on appeal those of the trial Court, whereby the suit filed by him and Smt. Jagir Kaur, respondent/plaintiff No. 2 for declaration that they were ownersinpossession of 2/5th share of the land measuring 44 Kanals 7 Marlas and for joint possession thereof along with defendants No. 1 to 7, and defendants No. 8 and 9, was decreed.

The facts. Admittedly, Inder Singh, father of the plaintiffs, defendants No. 8 and 9 and Surjit Singh deceased, was the owner of land measuring 44 Kanals 7 Marlas, situate at village Chak Kalan, tehsil and district Ludhiana. He died on June 17, 1963, leaving behind plaintiffs, Surjit Singh (since deceased) and defendants No. 8 and 9 as only legal heirs. Surjit Singh died on May 23, 1979 leaving behind his widow Smt. Gurdial Kaur, defendant No. 1, and sons and daughters (defendants No. 2 to 7). Mutation of inheritance No. 3977 was entered on July 30,1965, on the basis of the Will dated May 22, 1968, (Ex. D.1) submitted by Smt. Gurdial Kaur, defendant No. 1 (deceased son''s widow) and it was sanctioned in her favour by the revenue authorities on December 21, 1966 (copy Ex. D.2) on the basis of the aforesaid Will allegedly executed by Inder Singh deceased in her favour. Smt. Gurdial Kaur, defendant No. 1, entered into possession of the land subsequently mutated in her favour after the death of Inder Singh deceased. Jagir Singh, plaintiffappellant and Smt. Jagir Kaur, plaintiffrespondent No. 10, son and daughter respectively of Inder Singh deceased, filed a suit for declaration to the effect that they were ownersinpossession of the suit land and, in the alternative, for joint possession, against the defendants/respondents. Defendants 8 and 9 (respondents 8 and 9 in this appeal), daughters of Inder Singh deceased did not contest the suit and admitted the claim of the plaintiffs. The suit was only contested by defendant No. 1, widow and sons and daughters of Surjit Singh (deceased son of Inder Singh deceased). The plaintiffs alleged that the heirs of Singh Singh were paying them their share of the lease money and after the death of the last male owner, they had stopped paying the same necessitating the filing of the suit.

Defendant No. 1 in her written statement denied the allegations in the plaint and took a positive stand that after the death of her fatherinlaw, she entered into possession of the land in suit and mutation of inheritance was sanctioned in her favour and that her continuous possession is reflected in the record of rights uptodate.

On the pleadings of the parties, the trial Judge framed the following issues:

(1) Whether the plaintiffs are owners in possession of the disputed property ? OPP.

(2) If issue No. 1 is not proved, whether the plaintiffs are entitled to joint possession of the disputed property ? OPP.

(3) Whether Inder Singh had executed a valid Will in favour of Gurdial Kaur on 22.5.1963, if so its effect ? OPD.

(4) Whether the suit of the plaintiff has been filed within limitation ? OPP.

(4A) Whether Gurdial Kaur has become owner of the land in disputed by way of adverse possession ? OPD.

(5) Relief.

Issues No. 1, 2, 4 and 4A were decided in favour of the plaintiffs; issue No. 3 was decided against defendant No. 1 and as a result thereof, the suit was decreed.

On appeal by the defendants, the first appellate Court upheld the findings of the trial Judge under issues Nos. 1, 3, 4 and 4A but it reversed the finding of the trial Judge under issue No. 2. The first appellate Court, on appreciation of the ocular and documentary evidence, came to the conclusion that the plaintiffs had participated in the mutation proceedings relating to the inheritance of the estate of Inder Singh deceased and mutation of inheritance was sanctioned in favour of defendant No. 1 after contest. She entered into possession after the death of Inder Singh and her exclusive possession is reflected in the revenue record, i.e. Jamabandis for the years 197374, 197879 and 198384 (Exhibit D.5, P.5 and D.3 respectively). The appellate Judge disbelieved the plea of the plaintiffs that Surjit Singh, husband of Smt. Gurdial Kaur (defendant No. 1) had been paying any rent to the plaintiffs during his lifetime or that after his death any rent was paid by defendant No. 1. Defendant No. 1 has been in hostile and adverse possession to the exclusion of the natural heirs of Inder Singh deceased for more than 20 years before the filing of the suit and that she had perfected her title by adverse possession. On these findings, the first appellate Court set aside judgment and decree of the trial Court and dismissed the suit of the plaintiffs.

In second appeal, learned counsel for the appellant has assailed the finding of the first appellate Court to the effect that defendant No. 1 had perfected her title by adverse possession on the ground that after the death of the last male owner, the plaintiffs and defendant became cosharers in the suit land being coheirs and a cosharer in possession cannot claim adverse possession against the other cosharer. He also submitted that the mutation of inheritance of the deceased was sanctioned in the absence of the plaintiffs and in support of these pleas relied upon. Punjabi and another v. Hazura Singh and others, 1984 PLJ 14; Mohinder Singh v. Kashmira Singh, 1985 PLJ 82 : 1985 R.R.R. 339 and Mt. Bhago v. Deep Chand Harphul AIR 1964 Punjab 187.

In Smt. Punjabi''s case (supra), the dispute between the parties to the lis was whether any mutual partition between the cosharers was effected. Mutation of partition was sanctioned on the basis of a report which was not contested by one of the cosharers. That cosharer''s presence was recorded in the order of the revenue officer attesting the mutation. His presence was denied and it was contended that somebody had impersonated. It was in that context that a learned Single Judge observed that when the identity of a person who is stated to have appeared before the revenue officer is disputed, it has to be established by some evidence other than the mutation order itself that the person appeared before the revenue officer.

In Mohinder Singh''s case (supra), it was held by a Division Bench of this Court that the heir of the deceased is not required to file a suit to establish his right as an heir. An heir will become the owner of his share in the property of the deceased on his death and in a suit for possession filed by the heir, it will be for the other party to prove that it had perfected its title by adverse possession.

In Bhago''s case (supra), it was observed that mere possession howsoever long it may be does not necessarily mean that it is adverse to the true owner.

These rulings have absolutely no bearing to the facts of the instant case for the reasons stated hereinafter. Inder Singh died on June 17,1963, leaving behind Jagir Singh, Surjit Singh (sons); Smt. Jagir Kaur, Suit. Ishar Kaur and Suit. Surjit Kaur (daughters). Mutation of inheritance was entered on the basis of the application submitted by Jagir Singh, plaintiff, who admittedly was employed as SubInspector in the Punjab Police at that time and retired on December 31, 1976. Defendant No. 1, on the basis of Will dated May 22, 1963, executed by Inder Singh deceased, in her favour, asserted her exclusive title to the land in suit to the exclusion of the natural heirs. The mutation was sanctioned by the Revenue Officer of December 23, 1963 in her favour. Natural heirs of the deceased were fully aware that defendant No. 1 had set up title to the disputed land to the exclusion of the natural heirs. She succeeded in her assertion and mutation of inheritance was sanctioned in her favour. Her exclusive possession is reflected in the revenue record, i.e. Jamabandis for the years 197374, 197879 and 198384 (Ex. D.5, P.5 and D.3 respectively). The suit was filed on May 6, 1983, after the expiry of twenty years of the death of Inder Singh deceased, whose inheritance is in dispute. The plaintiffs to bring their suit within limitation took the plea that the defendants had been paying rent to them. This plea was negatived by the first appellate Court on the ground that at the trial, the plaintiffs led evidence to the effect that the rent was paid by the husband of Smt. Gurdial Kaur, defendant No. 1. It found that the evidence led at the trial was in direct contradiction with the pleadings in the plaint. In the plaint, it was stated that the rent was being paid by the defendants, whereas at the trial evidence was led to the effect that the rent was being paid by the husband of defendant No. 1.

I find no infirmity in the conclusions arrived at by the first appellate Court that no rent was being paid by defendant No. 1 and defendants 2 to 7 to the plaintiff. The plea lacks substance. Defendant No. 1 was in exclusive possession of the suit land for the last twenty years. Her possession was peaceful, open and continuous. Her open and hostile possession was capable of being known by the parties interested in the property. If an heir enters into possession of the property as a sole heir to the exclusion of other heirs, his or her adverse possession begins. The findings of the first appellate Court to the effect that defendant No. 1 had perfected her title by adverse possession is a finding of fact and is not open to challenge in second appeal.

Once limitation begins to run, it cannot stop and the suit brought by the other heirs for the alleged share in the property beyond twelve years from the date of mutation sanctioned in favour of the heir is clearly barred by time. In this connection, it will be useful to refer to the following observations of a Division Bench of this Court in Mst. Ralli v. Mst. Gurnam Kaur and others, AIR 1954 Punjab 14 :

"So Gurnam Kaur entered into possession of the property as sole heir to the exclusion of everyone else including Ralli and her adverse possession began. Once limitation begins to run, it cannot stop, and as a mutation in her favour was sanctioned in 1926, and the suit was not brought till 1944, the suit is clearly barred by time.

The above argument is based on the assumption that Ralli was not an heir at all and on this assumption she did not acquire any rights on Gurnam Kaur''s marriage, and therefore she is not entitled to bring this suit in any event. Let us now assume that Ralli was also a heir and that owing to her negligence, misapprehension or error she did not assert her rights until 1944. The question will then arise is her suit within limitation because her coheir must be presumed to have held the property on her behalf.

In this case, however, we find that there was a clear assertion of adverse and exclusive title by Gurnam Kaur. It was she alone who contested the claim of Nanda''s collaterals and Ralli did not at any time come forward to assist her or to assert her own claim. She knew that Gurnam Kaur was making an exclusive claim to the property. She cannot claim ignorance of those proceedings. Indeed she admits that she knew all about what was happening. In the plaint she stated that her rights came into existence only on Gurnam Kaur''s marriage. Therefore, at best this admission means that she was not aware of what her rights were when a mutation was sanctioned in favour of Gurnam Kaur. She was under a mistaken belief that Gurnam Kaur alone was entitled to succeed as the unmarried daughter and it was only when Gurnam Kaur married that she came to a realisation of her own rights. In this view of the matter also, the suit is clearly barred by time because Gurnam Kaur asserted her exclusive right to the property to the knowledge of Ralli and Ralli did not choose to question the correctness of this assertion perhaps because she was under a mistaken belief about her own rights."

Further, the plaintiffs are seeking a right of ownership after the death of their father in the year 1963. The cause of action to the plaintiffs, if any, arose at the time when the mutation was sanctioned in favour of defendant No. 1 on December 23, 1966 and she had entered into possession. Her possession was reflected in the Jamabandis for the year 197374, 197879 and 198384 and the suit was filed on May 6, 1983, obviously after the expiry of more than sixteen years.

I have also gone through the evidence and find that there is no escape from the conclusion that defendant No. 1 was in continuous, open and hostile possession of the suit land to the exclusion of the natural heirs and had perfected her title by adverse possession.

For the reasons aforesaid, the appeal is devoid of any merit and the same is dismissed but with no order as to costs.