Karcha Singh alias Gurbaksh Singh vs Dewan Singh

J.V. Gupta, J.

This is plaintiff''s second appeal whose suit for possession of the agricultural land was decreed by the trial Court, but dismissed in appeal.

Bahadur Singh, son of Chanda Singh, was the owner of the suit land measuring 63 Kanals 17 Marlas. He was a resident of Malaya. Against Jawala Singh, deceased, and Hazara Singh, defendant No. 2, he i.e. Bahadur Singh obtained the decree dated August 1, 1953, on the basis of a compromise. In execution thereof, he obtained possession of the suit land from them. Thereafter, Bahadur Singh, again left for Malaya where he died leaving behind the plaintiffs as his heirs. After Bahadur Singh had obtained possession of the suit land in execution of the decree dated August 1, 1953, Jawala Singh, defendant, now represented by his legal representatives, and Hazara Singh, defendant No.2, again entered into possession of the suit land as tenants as alleged by the plaintiff in the plaint. The plaintiffs filed the suit for possession of the suit land on the allegations that they being the heirs of Bahadur Singh, deceased, who were the owners of the suit land. Bahadur Singh while leaving India, put the defendants in permissive possession of the land, in dispute, and that the defendants had been paying rent to Bahadur Singh. After the death of Bahadur Singh, the defendants, taking advantage of the absence of the plaintiffs who are also the residents of Malaya, were unlawfully resisting their claim and were denying their status as the heirs of Bahadur Singh; hence the present suit. The defendants contested the suit. They denied the allegations of the plaintiffs and inter alia pleaded that they had become the owners of the suit land by adverse possession for more than twelve years and that the rights, if any, of Bahadur Singh in the suit land, stood extinguished. The trial Court found that the defendants had failed to prove their adverse possession over the suit land and, thus, they had failed to prove that the suit was timebarred. In view of this finding, the plaintiff''s suit was decreed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that Jawala Singh and Hazara Singh, defendants, had been in adverse possession of the suit land for more than 12 years before the filing of the suit and, therefore, they had become the owners thereof by adverse possession and that the suit filed by the plaintiffs was barred by time. in view of this finding, the plaintiff suit was dismissed. Dissatisfied with the same, they have come up in this second appeal to this Court.

I have heard the learned counsel for the parties and have also gone through the relevant evidence of the record. Admittedly, Bahadur Singh, got a decree for possession on the basis of the compromise against Jawala Singh and Hazara Singh, defendants, on August 1, 1953. Later on, the said Jawala Singh, filed the suit for declaration challenging the said decree. A certified copy of the plaint, dated January 8, 1955, is on the record, as Exhibit P. 12. The said suit was dismissed vide order dated October 18, 1955, copy Exhibit P. 15. The said suit was dismissed in view of the statement of the plaintiff dated October 18, 1955, copy Exhibit P. 14, wherein he had stated that his suit be dismissed. It is also not disputed now that in execution of the decree dated August 1, 1953, Bahadur Singh, decreeholder, got into possession of the suit land. According to the plaintiffs, later on, the suit land was again given on rent to the said defendants because Bahadur Singh was living outside India. Bahadur Singh also filed the application for ejectment against Jawala Singh and Hazara Singh before the Assistant Collector on the ground that he was a small landowner and that the tenants were in possession of more than five acres of land. Therein, Jawala Singh, defendant, made a statement before the Assistant Collector that both he and Hazara Singh, defendant, owned five Killas of land and also were in possession as mortgagees of either Killas of land of Virsa Singh and three Killas of land of one Harnam Singh. The Assistant Collector, on the basis of this statement, held that the tenants were in possession of more than five acres of land besides the suit land and, thus, ordered their ejectment. However, in appeal against the said order, the learned Collector found that Bahadur Singh had failed to prove that Jawala Singh and Hazara Singh were his tenants on the suit land. In view of that finding, the application for their ejectment therefrom was dismissed. The said order of the Collector, dated January 29, 1957, is Exhibit D. 13. The lower appellate Court placed reliance thereon and found that from the said date, the defendants will be deemed to be in adverse possession of the suit land since the suit was filed in the year 1971, i.e., more than 12 years thereof. Thus, they had become the owners of the suit land by adverse possession. It may be stated here that in the revenue record, the entry in the column of cultivation with respect to the defendatns is an tenants throughout though with respect to the rent, it has been stated there bila lagan basharah malkan bawajah ghair Kazaran malkan. Thus, the question involved in the appeal is as to the scope of the Collector''s order, Exhibit D. 13. I have gone through the said order carefully. As a matter of fact, the argument on behalf of Jawala Singh and Hazara Singh, defendants, in the said appeal, was that the statement which Jawala Singh, defendant, made before the Assistant Collector, reveals that the land was being held by him and his brother not as tenants, but in lieu of the money advanced by them to Bahadur Singh in Singapore, and as such the Assistant Collector was not right in arriving at the conclusion that the parties were tenants and landlord. This contention of the learned counsel on behalf of Jawala Singh and Hazara Singh, defendants, was accepted by the Collector with the following observations :

"No doubt, they have admitted that they are in possession of more than five standard acres of land, yet they also say that in case their money which they advanced is paid to them, they would have no objection to the ejectment. This leads me to believe that in fact there was some agreement between the parties when the money was advanced that the land would be kept with the tenants till the money was paid; and as such, the socalled tenants in my opinion would not be termed as tenants and they status is something like that of an adverse possession. At any rate, when the column of rent shows that no rent is paid and that the land is held by Jawala Singh etc. without paying any rent, I would not call them as tenants."

From this, it could not be held that the defendants were in adverse possession of the suit land. The sloe question before the Collector was : whether there was any relationship of landlord and tenant between the parties or not ? According to the defendants, they were not paying any rent and that they would have no objection to be ejected if the money advanced by them to Bahadur Singh was paid back to them. Thus, it is quite evident that their possession over the suit land was permissive and not adverse in any way. May be that the defendants may not be paying any rent as tenants, but that does not mean that they were in adverse possession of the suit land and once it is so found that according to their own version they would have no objection to their ejectment from the suit land; provided they were paid the money which they had advanced in Bahadur Singh, they could not be held to be in adverse possession thereof. The low appellate Court has missed the order of the Collector, Exhibit D. 13. In the said case, the Collector was only concerned as to whether there was the relationship of landlord and tenant between the parties or not, and the question of defendants'' adverse possession over the suit land, did not arise. Any observation made by him in this behalf was besides the point. It was the case of the defendants themselves before the Collector that they were liable to be ejected; provided their money, which they had advanced to Bahadur Singh, was paid back to them. This clearly shows that their possession over the suit land was merely permissive. Moreover, merely the nonpayment of the rent would not warrant a finding that the possession of the defendants qua the plaintiffs had become adverse as held by this Court in Joginder Pal v. Angad Singh, 1983 PLR 429 and Peer Dia v. Man Singh, 1976 PLJ 626. Apart from the above, there is no evidence of the adverse possession of the defendants. Thus, the finding of the lower appellate Court is wholly wrong, illegal and liable to be set aside and the approach of the trial Court in this behalf was correct. The defendants have failed to prove that they had become owners by adverse possession. Once it is so found, then the plaintiff''s suit will be within time.

In this view of the matter, this appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside and that of the trial Court decreeing the plaintiff''s suit are restored with costs.