Kehar Singh and others vs Ishwar and others

J.V. Gupta, J.—This is defendants Second Appeal against whom suit for declaration was dismissed by the trial court but stands decreed in appeal.

The dispute between the parties, in the present suit, relates to land measuring 394 Kanals 2 Marlas, situate in Village Naguran. According to the plaintiffs, defendants No. 1 to 81 are descendents of Lachhla; that defendants of set No 2 had 1/4th share in the land; that they got their portion separated in partition proceedings for which Mutation No. 3028, dated 28th February, 1976, with respect to the land detailed in para 5 was sanctioned; that remaining land measuring 268 Kanals 12 Marlas remained joint on which the plaintiffs and proforma defendants had 1/3rd share whereas defendants of Set No. 1 had 1/3rd share and Chatra. defendant, had 1/3rd share: that defendants of set No. 4 and 1/3rd share. Thus the plaintiffs alleged that they being the co sharers in the suit land were entitled to get it partitioned The suit was mainly contested by defendants Not. 1 to 12. They, in their joint written statement, pleaded that ancestors of plaintiffs bad abondoned their rights in the suit land about 100 years ago; that they had gone to Village Dhan Kheri and acquired land in the said village and also built houses there; that since they never resided in Village Naguran, where the suit land was situated, they never cultivated the land nor paid any land revenue, that the defendants remained in possession of the suit land since the year 1904 in their own right as owners It was alleged that the defendants bad become owners of the suit land by adverse possession also. Defendant Mo 16 Dhara Singh and defendant No. 17 Bhale Ram also filed Written Statement to the same effect. The remaining defendants did not file any Written Statement.

The trial Court came to the conclusion that the plaintiffs were not in possession of the suit land as co-sharers; that their ancestors had abandoned their rights in the suit land; the defendants No. 1 to 12 had become owners of the suit land by adverse possession and that the suit was barred by limitation. In view of these findings, the suit was dismissed. In appeal, the learned Additional District Judge reversed the said finding of the trial court and came to the couclusion that the defendants had failed to prove the abandonment by the plaintiffs of their rights in the suit land. It was further found that in cans the defendants failed to prove the abandonment by the plaintiffs, as alleged, then the plaintiffs continued to be co sharers in the suit land and the defendants could not claim to have become owners by adverse possession. In view of these findings the suit was decreed. Dissatisfied with the same, the defendants have filed this Second Appeal.

Learned counsel for the appellants contended that from the entries in the revenue record, where the plaintiff have been shown to be gair kabaz since 1904 and that the fact that the defendants have shifted to another Village Dhan Kheri where they bad constructed their own houses, it was a clear case of abandonment and the view taken by the lower appellate court in this behalf was wrong whereas the trial court rightly came to the conclusion that the plaintiffs had abandoned their rights in the suit land for more than 100 years'' In support of his contention, he referred to Man Singh v. Telu (1967) 69. P L. R. S. N. 17: A. I. R.1976 P&H. 252, On the other hand, learned counsel for the plaintiffs-respondents, submitted that in the present case the plaintiffs have throughout been shown as owners of the suit land in all the Jamabandis. Not only that, mutations of inheritance have been sanctioned from time to time, in their favour, in spite of the fact that in the column of cultivation, they were entered as gair kabaz Moreover, there is no evidence on the record to show that during this period of 100 years, the defendants ever exercised the right of their ownership over the suit land in any manner as such, by way of transfer, etc According to the learned counsel, earlier the ancestors of both the parties had left Village Naguran in the year 1886-87 and later in the year 1903-04, the defendants came back to their village got Mutation No. 507 sanctioned in their favour but at the time Her Ram, who was the ancestor of some of the plaintiffs and defendants of Set No 2, also came back and Mutation No. 506 was sanctioned in his favour. In these circumstances, argued the learned counsel, the question of abandonment of their rights by the plaintiffs did not arise even if they were absentees from the village According to the learned counsel, mere absence from the village did not amount to abandonment. In support of this contention, he referred to Kanhiya v Mohabata (1960) 62 P. L. R. 494 and Sohan Lai v. Fauja Singh (1966) 68 P. L. R. 581, It was also contended that in any case whether the plaintiffs had abandoned their rights or not was a question of fact, and the lower appellate court, on the appreciation of the evidence, has come to the conclusion that there was no abandonment and that being a finding of fact could not be interferred with in Second Appeal.

I have beard the learned counsel for the parties and also-gene through the excerpt Ex. DX It is not disputed that the defendants are absentees from the village for the last 100 years but at the same time, their names continued in the revenue record, in the column of ownership, throught out this period. Not only that, mutation of inheritance that took place from time to time was also sanctioned in their favour and it was never objected to by the defendants Apart from that, the defendants of Set No 2 got their shares partitioned in the year 1976 vide Mutation dated 28th February, 1976 The position of the said defendants was the same as that of the plaintiffs but the contesting defendants never took up the plea of abandonment on their part and rather agreed to the partition There is also no evidence on record to show that during this period the defendants ever exercised their right of ownership on the suit land by making any transaction of transfer in favour of any third person. The only factor against the plaintiffs is that they were shown as gair kabaz. This fact alone will not prove abandonment on the part of the plaintiffs. What is ''abandonment'' was considered by the Division Bench of in this Court Kanhiya''s case (supra) with the following observations:

There are two primary elements of abandonment, namely, the intention to abandon and the external act by which effect is given to the intention and both these elements must concur. The intention must be clear and unmistakable Abandonment implies non-user, but non-user per se does not create abandonment, no matter how long it continues.

To the same effect are the observations made in Sohan Singh''s case (supra) that "abandonment was a positive act. The inactivity or the passive attitude of a person could not be interpreted as an act of abandonment." The authority relied upon by the learned counsel for the appellants, i.e., Man Singh''s case (supra) is clearly distinguishable because in that case, in the reuenue record, the plaintiff''s name was not shown as owner nor were any steps taken to correct the said entry. Apart from that, the defendants had made alienations during the period of the absence of the plaintiffs, and, thus, exercised their right of ownership. These elements are missing in the present case.

Moreover, whether the plaintiffs have abandoned their rights in the suit or not will still remain a question of fact. From the evidence on record, the lower appellate court has given a firm finding that the defendants had failed to prove the abandonment. The said finding could not be said to be wrong or illegal in any manner so as to be interfered with in Second Appeal Even if two views are possible, and one has been taken, that itself is no ground for interference in Second Appeal

Once it is found that there was no abandonment on the part or the plaintiffs it could not be successfully argued that the defendants had became owners by adverse possession. In that situation, the plaintiffs continued to be the co sharers and to oust the co-sharers there must be evidance of their ouster, as such, which the defendants have failed to prove by cogent evidance except the fact that the plaintiffs were resend and were not realising any rent, etc., from the defendants. In this view of the matter, the appeal fails and is dismissed, with no order as to costs.