Kumehli and Others vs Moti and Others

Kamlesh Sharma, J.—This appeal under Paragraph 32 of the Himachal Pradesh Courts Order is directed against the decree and judgment dated 28.8.1981 passed by Additional District Judge, Kangra Division camp at Chamba whereby the appeal of original plaintiffs Mod and Hira sons of Tarlochan was accepted and the decree and judgment dated 10.9.1979 of Senor Sub Judge, Chamba was set aside. The Senior Sub Judge had dismissed the suit of the plaintiffs which was for joint possession to the extent of half share of land measuring 68 bighas 13 biswas, comprised in Khasra No. 131, Khata Khatouni No. 8/8/9 situated in Mohal Drobn and land measuring 14 bighas 15 biswas comprised in Khata No. 35, Khatouni No. 84 and 85, situated in Mohal Dand, Pargana Kihar, Tehsil Churah, District Chamba (hereinafter called the land in dispute.)

Original plaintiff Hira has died during the pendency of the appeal and his legal representatives Hira Singh and three others have been brought on record. Original appellant-defendant Larja son of Gopala has also died during the pendency of this appeal and his legal representatives Kumehli and five others have also been brought on record. Out of these legal representatives, one Paras Ram who was impleaded as appellant 1-d, has also died and the appellants-defendants have failed to bring his legal representatives on record. Proforma respondent-defendants have failed to bring his legal representatives on record. Proforma respondent-defendants have failed to bring his legal representatives on record. Proforma respondent-defendant Baziru was also reported to have died but his legal representatives have not been brought on record despite opportunity given to the appellants-defendants. In the circumstances, on 283.1994 this Court ordered that appeal in respect of appellant-defendant 4 Baziru stands abated and its effect will be considered at the time of final hearing of the appeal.

Original plaintiffs Hira, Moti and Surjan claiming themselves to be joint owners of he land in dispute to the extent of one half share had filed application for partition before the Revenue Officer who vide his order dated 2.3.1972 Ex. PC held that he could not proceed with the partition proceedings unless the Civil Court decides the dispute in respect of the title raised by defendants Baziru and Larja that they had been in possession of the land in dispute as owners to the exclusion of plaintiffs Moti, Hira and Surjan. Thereafter on 22.4.1972 suit was filed by Moti, Hira and Surjan, during the pendency of which Surjan had died without leaving behind widow or child and his name was deleted, as Moti and Hira had inherited his estate. In the joint written statement filed by defendants, they denied the allegations made in the plaint that they alongwith plaintiffs were joint owners of the land in dispute and their possession was in the capacity as such. They alleged that the plaintiffs had filed a suit for similar relief of joint possession which was dismissed in default, as such, they were stopped from filing another suit on the same cause of action, which also stood barred by limitation. They claimed themselves to be in adverse possession of the land in dispute for more than 12 years on the date -of filing the suit which had ripened into their title thereof. This defence weighed with the trial court and it dismissed the suit rejecting the case of the plaintiffs that they were joint owners of the land in dispute to the extent of half share. The findings of the trial Court were upset by the first appellate Court on both counts that the defendants had acquired possessory title over the land in dispute being in adverse possession for e more than 12 years before the filing of the suit and that suit was barred under Order 9 Rule 9 CPC. The first appellate Court has held that the possession of defendants had been in their capacity as co-owners and the cause of action in .the second suit filed by the plaintiffs was different than the cause of action in the first suit. Hence, this regular second appeal by one of he Larja, and other defendants Hardeu and Baziru have been impleaded as proforma respondents.

this Court has heard Learned Counsel for parties and gone through the record. In view of the order dated 28.3.1994, the first point to be examined is the effect of abatement of he appeal in respect of appellant 1-d Paras Ram and proforma respondent No. 4 Baziru, whose legal representatives have not been bought on records According to Shri Anand Sharma, appearing vice Learned Counsel for the respondents, the whole appeal has abated but he has not been able to substantiate his submission by cogent and convincing argument. From the facts stated hereinabove it is clear that Larja, Baziru and Hardeu were the original defendants against whom suit was filed alleging them to be in joint possession of he land in dispute and denying the claim of the plaintiffs that they were also joint owners to the extent of half share. They had filed common written statement, inter alia, claiming adverse possession and acquisition of possessory title jointly, as such, their interest in the land in dispute is joint and one of them can represent the interest of others. Accordingly, the present appeal filed by one of them, namely, Larja was competent wherein Baziru and Hardeu have, been impleaded as proforma respondents. On the death of Larja his legal representatives have been brought on record, who represents not only the estate of Larja but also the common interest of legal representatives of Baziru and Hardeu in the land in dispute and the decree passed in the present appeal will govern the rights in respect of the joint interest in the land in dispute of legal representatives of Larja as well as of Baziru and Hardeu who continued to be in joint possession in their capacity as joint owners, as such, the abatement of appeal in respect of deceased Baziru and non-impleadment of his legal representatives as proforma respondents if of no effect. So far appellant-defendant 1-d Paras Ram is concerned, one of his legal representatives, his mother Kumehli widow of Larja is already on record, who represents his interest in the estate of Larja and non-impleadment of other legal representatives does not matter. The appeal has not abated as a whole for want of bringing on record legal representatives of appellant 1-d Paras Ram and proforma respondent Baziru.

Ms. Bandna Kuthiala, Learned Counsel appearing for the appellant-defendant has taken this Court through the pleadings as well as documentary and oral evidence on record to urge that the first appellate Court has misread, misinterpreted and drawn wrong inferences from them to upset the well considered findings of the trial court that the possession of the defendants on the land in dispute had been exclusive to the ouster of plaintiffs for 23 years at the time of filing the suit and also that suit was barred under Order 9 Rule 9 C.P.C. On the other hand Shri Anand Sharma, appearing vide Learned Counsel for the plaintiffs, has supported the judgment of he first appellate Court.

Before adverting to the evidence on record this Court would like to recapitulate the settled position of law that what constitutes adverse possession, especially in the case of co-owner. As far back as in the year 1914 the learned Judges of Lahore High Court held in Akbar and Others v. Tabu and Others, AIR 1914 Lah 284:

...We agree that possession of one co-sharer is ordinarily possession of all the co-sharers; but the co-sharer In possession can convert his overt act showing unequivocally to the co-sharers that in future he intends to hold for himself alone, and this adverse possession so begun cannot be stopped by the other co-sharers merely by affirmations that they are co-sharers or by mere applications for partition. It is the business of those co-sharers within limitations actually and effectually to assert their rights and to break up the usurper''s exclusive possession. The mere retention by the revenue authorities of he names of those co-sharers as such after the aforesaid overt act has been done does not prevent limitation from running against them....

Further in Wuntakal Yalpi Chenabasavana Gowd Vs. Rao Bahadur Y. Mahabaleshwarappa and Another, the learned Judges observed:-

Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the disposed co-sharer would not interrupt the running of adverse possession He must actually and effectively break up the exclusive possession of his co sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in "exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property....

The essential elements for upholding the plea of adverse possession where parties are co-owners have been further explained in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, paragraph 4 as under:-

...But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of he properties. Ouster of the non-possessing co- heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir''s title. (See Corea v. Apputhamy, 1912 AC 230 (C). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute buster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be interfered when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 at P. 47(D) quotes, apparently with approval, a passage from Culley v. Deod Taylerson, (1840) 3 P&D 539 : 52 RR 566 (E), which indicates that such a situation may well lead to an inference of ouster if other circumstances concur" (See also AIR 1931 48 (Privy Council) . It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.

These principles have further been reiterated in several decisions which need not be referred to and suffice it to summarise them that to constitute adverse Possession of a co-owner there should be conclusive evidence on record that he has been denying the rights of other co-owners asserting his hostile title by exclusive possession and enjoyment to the knowledge of other co- owners asserting his hostile title by exclusive possession and enjoyment to the knowledge of other co-owners so as to constitute their ouster. So tar the elements of adverse possession are concerned, these are well known that the possession proved must be adequate, in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession is in denial of the true owner''s title, must be peaceful open and continuous for the statutory period.

Now the question arises whether on the evidence on record the nature of possession of defendants has been proved to be of such a quality that the rights of plaintiffs in the land in dispute have been denied amounting to their ouster. So far documents Exts. PA and PB are concerned, these are copies of Jamabandis wherein the parties are recorded as joint owners of the land in dispute and the defendants in possession as co-owners, as such these do not support the case of the defendants. But the presumption of truth attached to these revenue entries stands duly rebutted by other documentary and oral evidence on record which clearly establish that defendants had denied the rights of the plaintiffs in the land in dispute as far back as in the year 1949 and the plaintiff and others were compelled to file civil suit for joint possession, which was dismissed in default by order dated 25.3.1950 Ext.D-1. A copy of the plaint in the said suit is on record as Ext.D-2, the English Translation of which has been placed on the record of this appeal. Had the first appellate Court referred to the contents of this plaint, it would have come to a different conclusion. Paras 3 and 4 of this plaint are:-

That the defendants and the plaintiffs had filed a case regarding cancellation of the aforesaid mortgage deed about the suit land which was executed by Makhni in favour of Shri Nanda. In that suit it was held by the Chief Court, Chamba that after the death of Smt. Makhni, the aforesaid plaintiffs would become the owners of 3/4 share of land and both the parties would be entitled to redeem and take possession of the suit land after making payment of Rs. 250/- to Shri Nanda, the mortgagee.

That now the defendants, of their own, have paid Rs. 250/- to Shri Nanda, aforesaid mortgagee and have taken the possession of entire land and got effected wrong entries in the revenue record. Though the aforesaid plaintiffs are willing to pay Rs. 187 annals 8 as their share of mortgage amount to the defendants, but they are not accepting the same and have refused to give possession of the plaintiffs share in the land. The cause of, action has arisen from the month of Asoj, Sarabat 2004, the day defendants refused to part with the land. The Court has jurisdiction to hear the case.

It is correct that had the written statement filed by the defendants in the earlier suit been brought on record their stand that they had denied the rights of the plaintiffs in the land in dispute by getting the possession thereof by way of redemption Would have been proved beyond any doubt, but from the contents of the plaint it is evident that the cause of action had arisen to the plaintiffs and others for filing the earlier suit in Asoj, Sambat 2004 when the defendants had refused to give them possession of the land in their capacity as co-owners, as claimed by them which amounts to denial of he title of the plaintiffs, in other words their ouster from the land in dispute. The defendants thereafter kept quiet for a period of about 20 years when they filed application for partition of the land before the Revenue Officer. Shri Anand Sharma, appearing vie Learned Counsel for the plaintiffs, states that since in the revenue entries plaintiffs were recorded as co-owners, they need not come forward to assert their title over the land in dispute by filing another suit till the Revenue Officer by his order dated 21.3.1972 refused to proceed with partition proceedings and directed the parties to get the dispute in respect of title decided by the Civil Court. This argument is without any force as held in Akbar and Others v. Tabu and Others (supra) entry in the revenue record in respect of co-ownership of plaintiffs after their exclusion by an overt act of defendants to get possession of the land in dispute by way of redemption by paying full amount of mortgage and refusal to part with the share of plaintiffs by accepting their share of mortgage money, which fact has been admitted by the plaintiffs, in the above referred to plaint filed by them in the earlier suit, is of no avail. Admittedly, limitation for plaintiffs t get possession of the land by payment of their share of mortgage amount was 12 years from the date the defendants had asserted their claim that they are in possession of the land in dispute as owners by virtue of payment of full mortgage amount, which had started from 1949 when earlier suit as filed, if not before, whereas the plaintiffs have filed the present suit seeking joint possession after about 23 years. The first appellate Court has misread and misinterpreted the plaint Ext.D-2 for upsetting the findings of the trial Court that date of filing the earlier suit i.e. 8.9.1949 was the starting point of adverse possession of the defendants by hot referring to the contents thereof which are very clear that defendants had refused to part with the possession of the land falling to the share of the plaintiffs after they had taken possession of the land in dispute by getting it redeemed on payment of full mortgage amount.

The case of the defendants in respect of their adverse possession has been fully corroborated not only by the evidence produced by the defendants but also by the witnesses of the plaintiffs, who have in one voice stated that the defendants had been in possession of the land in dispute since they had got it redeemed claiming themselves to be its owners and refusing possession to the plaintiffs to the extent of their share despite their several demands for the last 2CK 25 years. These statements have been rejected on the ground that they do not speak of ouster of the plaintiffs as co-owners, which is not correct inference drawn by the first appellate Court. When on demand of the plaintiffs, the defendants refused to part with the possession claiming themselves to be the owners of whole of the land in dispute it is nothing but a claim of exclusive possession of the land in dispute to the ouster of he plaintiffs. It is correct that the defendants have not come forward to depose their case but if their case is proved by oral and documentary evidence on record, this circumstance is not enough to reject their case, as has been done by the first appellate Court. In the result, this Court upsets the findings of he first appellate Court and affirms the findings of the trial Court that on the evidence on record the defendants have been able to prove their adverse possession over the land in dispute for the last over 23 years at the time of filing the suit.

The next point arising in the appeal, is whether the suit of he plaintiffs was barred under Order 9 Rule 9 CPC, as held by the trial Court, which findings were upset by the first appellate Court. Again, this Court finds itself unable to agree with the findings of the first appellate Court that the cause of action of the second suit was different to the first suit which was dismissed in default on 25.3.19S0 by order Ext.D-1. It is not in dispute that the earlier suit pertained to the land in dispute, which was filed by the plaintiffs alongwith others against the defendants for joint possession to the extent of their share which they claimed l/4the at that time. The basis of their claim that they alongwith defendants and others had inherited the land in dispute from its previous owner Smt. Makhni and their Tights as reversioners were decided in the suit filed by them continues to be the same with the only addition to the latter suit that they had filed application for partition in which the Revenue Officer has passed order dated 21.3.19/2 Ext. PC observing that the parties should get the dispute of title decided by the Civil Court. The cause of action, which is bundle of facts, primarily remains the same in both the suits, as such the latter suit being on the same cause of action is barred under Order 9 Rule 9 C.P.C.

The result of above discussion is that there is merit in this appeal and it is allowed. The decree and judgment of the first appellate Court are set aside and the decree and judgment of he trial Court are affirmed, with the result suit of he plaintiffs stands dismissed. There is no order as to costs.