Mt. Bhago vs Deep Chand Harphul and Others

Inder Dev Dua, J.—This regular second appeal is directed against the judgment and decree of the learned Additional District Judge, Karnal affirming that of a learned Subprdinate judge Ist Class Karnal and raises the question of adverse possession. The facts giving rise, to the controyersy before us lie in a narrow compass and are as follows. According to the allegations of the Plaintiff (Respondent in this Court) the property in dispute belonged to Jug Lal who had gifted the same to his son Mollar but the father and the son being joint in mess and cultivation, Jug Lal continued to be in possession of the gifted property. One Smt. Mehman is also stated to have been joint owner of a share of the land with Jug Lal. The estate of Smt. Mehman is stated also to have been mutated in favour of Mollar on 17-6-1947, the lady having died in November, 1945 with the result that Mollar became the sole owner of the entire property in the meantime, however, in April, 1947 Mollar was murdered and mutation relating to his estate was sanctioned in the name of his father Jug Lal by an order of the Revenue Officer also dated 17-6-1947, the number of the mutation being No. 917.

After the death of Smt. Mehman and the sanction of the mutation regarding her estate Risala (a Defendant in the present suit) and some others filed a suit claiming inheritance to the estate of Smt. Mehman to the exclusion of Jug Lal on certain grounds. This suit was dismissed and the order of dismissal affirmed on appeal. The plaint then proceeds to state that feeling frustrated by the failure of their claim in that litigation, Defendants Nos. 3 to 7 made a desperate attempt of putting forth Smt. Chalti alias Bhago, Defendant No. 1 in the present suit, as the widow of Mollar son of Jug Lal. This lady (Defendant No. 1) with the help of her husband and other disgruntled persons conspired with the local revenue officers and applied on 10-5-1956 for the review of the mutation No. 917 dated 17-6-1947 contending that she was the widow of Mollar and the latter''s father had wrongly got the mutation sanctioned in his favour. The Collector granted the review on 14-7-1956. This review has been challenged in the plaint on the ground that Jug Lal was unaware of these proceedings and the Roving Revenue Assistant as also the Collector had no jurisdiction to review the previous order.

In the meantime Jug Lal is stated to have gifted the property in dispute to Deep Chand Plaintiff (Respondent in this Court) by mutation No. 995 in February, 1954, the mutation having actually been sanctioned in September, 1954. An appeal filed by Defendants Nos. 3 to 7 was unsuccessful and the Plaintiff claims to have actually been put into possession of the property in 1954 which possession is stated to have continued up to the date of the suit in exercise of the Plaintiff''s own right and adversely to the whole world. On learning of the successful review proceedings the Plaintiff and Jug Lal both preferred an appeal to the Collector who set aside the order and remanded the case for making further and thorough enquiries into the matter. Defendant No. 1 took the matter on further appeal to the Commissioner who also directed further enquiries by the Collector as to the identity of Defendant No. 1. There is no reference in the plaint to the date of this order by the Commissioner.

In the meantime the learned Commissioner who ordered the enquiry was transferred and his successor heard the appeal on 2-6-1959 and accepted it on the ground that the appeal before the Collector was time-barred. The learned Commissioner however, futher observed that since mutations confer no right by themselves the Plaintiff''s possession could not be disturbed by a mere mutation in favour of Defendant No. 1 who shall have to go the civil Courts before disturbing the Plaintiffs possession. A further revision against the order of the learned Commissioner at the instance of the Plaintiff was rejected. It is, however, sought to be explained in the plaint that this was rejected because the Plaintiff could not arrange for the appearance of his counsel on the date fixed at a short notice. The Plaintiff claiming to be in possession of the property in dispute in assertion of his own right instituted the present suit, in April, 1960 asserting that Defendant No. 1 is not the.widow of Mollar deceased and that it is Defendant No. 2, Smt. Manohari, who is Mollar''s widow and who immediately on Mollar''s death effected a second marriage thereby losing all rights to Mollar''s estate.

It has also been asserted in the plaint that the property in fact belonged to Jug Lal who continued to remain in possession of the same in spite of the gift in favour of his son in the alternative it has been averred that at any rate Jug Lal rightly inherited the property, on the death of his son and rightly gifted the same to the Plaintiff and put the latter in possession thereof. Otherwise too, so proceeds the plaint, Jug Lal entered into possession of the property in April, 1947 and mutation of inheritance of Mollar deceased was sanctioned in his favour in June, 1947 to the exclusion of all others and that he denied the right of all others to succeed to the property left by his son. Even if, therefore, Jug Lal could be held disentitled to succeed he was adversely in possession of the pro-perty against all others and continued to be in possession till he gifted the same to the Plaintiff, with the result that jug Lal and the Plaintiff have remained in possession of the property adversely to others for more than 12 years. The Plaintiff who was entitled to tack on Jug Lal''s possession to his own, has become absolute owner of the property in dispute and the Defendants have no right to interfere with his peaceful possession. Defendants Nos. 3 to 7 have also been pleaded to be otherwise estopped, from challenging Jug Lal''s right to succeed to the property left by Mollar.

The suit was resisted principally by Defendant No. 1 who alone is the Appellant in this Court.

The pleadings of the parties gave rise to the following issues:

Whether Defendant No. 2 was the widow of Mollar deceased and not Defendant No. I

Whether Jug Lal effected a valid gift of property with the Plaintiff?

Whether Defendant No. 2. has remarried before the alleged gift in question by Jug Lal?

Whether jug Lal and after him Plaintiff has been in adverse possession for a. period of 12 years?

Whether the Plaintiff was in possession of the suit property at date of suit?

Whether the suit is time-barred?

Relief.

The trial Court on a detailed discussion of the evidence observed that both oral as well as documentary evidence produced by the Plaintiff failed to establish that Mollar had been married to Mst. Manohari, daughter of Ramji Lal of Lal-hari Khalsa. It further proceeded to state that as against this the evidence led by Defendant No. 1 was sufficient to establish that it was she who had been married to Mollar and that she was in fact his widow. The concluding part of his observation on issue No. 1 may here be reproduced:

The accumulative effect of above discussion is that Mst. Manohari, Defendant No. 2 is not widow of Mollar and that in fact Defendant No. I Mst. Bhago, daughter of Mam Chand is widow of Mollar. I, therefore, decide this issue No. I in favour of Defendant No. I and hold that Defendant No. I is the widow of Mollar, deceased.

Issue No. 2 was decided in favour of the Plaintiff. Issue No. 3 was held not to arise at all in view of the Court''s decision on issue No. I. The decision on issue No. 4 was also given in favour of the Plaintiff for the reason that Defendant No. I, the widow of Mollar deceased having not remarried the mutation of succession could not be said to have been rightly sanctioned in favour of Jug Lal, with the result that Jug Lal''s title was invalid and his possession illegal for he was in possession of the suif land under the invalid title sanctioned in his favour, vide Exhibit P.4. His possession would, therefore, be deemed to be adverse to Defendant No. 1. The Plaintiff claiming to be in possession as donee from Jug Lal could also take benefit of the period during which Jug Lal was in adverse possession and thus he should be considered to have completed 12 years of adverse possession up to the time of the institution of the present suit. He was thus held to have become owner by adverse possession of the suit land.

The learned Additional District Judge to whom the Defendant took the matter on appeal partially allowed it dismissing the suit in regard to the land measuring 5 bighas and 5 biswas but in regard to the rest of the area affirined both the judgment and. decree of the Court of first instance. The lower appellate Court also agreed with the Court of first instance on the decision under issue No. I concurring in the conclusion that it was Smt. Chalti alias Mst. Bhago who was the widow of Mollar and not Smt. Manohari as was the case of Deep Chand Plaintiff (Respondent in this Court) Dealing with the question of adverse possession, the lower appellate Court observed that Deep Chand Plaintiff being a done from Jug Lal by means of gift the said Jug Lal was thus the Plaintiff''s predecessor-in-interest, with the result that Deep Chand can tack Jug Lal''s possession to his own. On considering the revenue records produced in the case it proceeded to observe that Jug Lal had come into possession of the lands in the year 1947 soon after Mollar''s murder and that he continued in possession till he gifted the lands in favour of Deep Chand who continued in possession since then. On this basis it concluded that in 1959 the Plaintiff''s title in the lands in question became perfect on account of adverse possession for more than 12 years. The contention that Jug Lal being the father-in-law of Mst. Bhago and the lady being not present at the mutation proceedings, and indeed was absent from village Chamrara, his possession should be deemed to be permissive did not appeal to the Court below. The decision in Kirori Jugal Kishore and Another Vs. Man Bai and Others, was on this account distinguished. It may however, be mentioned that the Court agreed with the Appellant that when the mutation Exhibit P. 4 was sanctioned the Appellant was not present and also that she did not reside in village Chamrara. The Court, however, proceeded to make a further observation that there was nothing on the record to show that Jug Lal had been guilty of suppression of facts.

The Appellant", so observed the Court, "knew that, Mollar held lands and that he had no issue and as such she was his heir." With due diligence she could, therefore, have known that the lands left by Mollar had been mutated in favour of Jug Lal and also that he had taken possession of the same. Absence of evidence on the point that she ever cared to demand or obtained any allowance or produce of the land from Jug Lal was also taken into account by the Court. Finally, the Court relied on the testimony of Lal Chand D.W. 5, brother of the Appellant, who in the Court''s view admitted during cross-examination that someone had informed him and his sister that Mollar owned lands which had been mutated in Jug Lal''s favour. According to the Court this witness also admitted that he and his sister had gone to Chamrara and asked jug Lal as to how be had got the lands mutated in his favour but the latter gave an adverse reply.

In regard to the area measuring 5 bighas and 5 biswas Exhibit P.4 disclosed that this area was held under mortgage before the mutation was sanctioned in favour of Jug Lal. The possession of the mortgagee of this area, therefore, could not be considered to be on Jug Lal''s behalf. The Plaintiff thus could not ''acquire title in this area. The Court below thus partially allowed the appeal as already mentioned.

On second appeal the Appellant''s learned Counsel has contended that the Plaintiff has not established his title by adverse possession before the institution of the suit and that the judgment of the lower appellate Court is vitiated by, errors of law, a wholly erroneous legal approach to the point in issue, omission to apply its mind to the real point in controversy, and a gross misreading of the evidence on the record.

It has not been seriously stressed on behalf of the Respondents that the question of adverse possession is always a pure question of fact and can never be gone into by this Court, though during the course of arguments at one stage the Respondents'' learned Counsel did throw a faint or passing suggestion that the conclusion regarding adverse possession was a pure question of fact. He, however, did not pursue it and did not draw our attention either to the material on the record or to any authority or precedent. The Appellant has, however, submitted that the question of adverse possession is, generally speaking, a mixed question of law and fact and it is for the Court to draw its inference from proyed basic facts in each case and that such inference is a matter of law: vide, inter alia, Shiromani Gurdwara Parbhandhak Committee v. Prem Das AIR 1933 Lah 25 and Mt. Bhani v. Ujagar Singh AIR 1936 Lah 741.

In my opinion, there is no hard and fast rule either way, namely, that a finding as to adverse possession must always be considered to be a pure question of fact, or that it must always be treated as a mixed question of fact and law. It really depends in each case on the nature of the basic facts from which the ultimate inference or conclusion is to be drawn. I can visualise a case in which such a finding would be a pure finding of fact involving no legal inference, and cases are also conceivable, which may by no means be rare, where it may be a mixed question of law and fact, liable to be interfered with on second appeal, provided of course, the necessary error of law in drawing the inference is made out.

In the case in hand it is obvious that the learned Additional District Judge has not properly applied his mind and scrutinised the mutation proceedings with the care and attention it deserved. The observation that there is nothing on the record to show that Jug Lal was guilty of suppression of facts does not seem to me to be fully justified on the material on the record, and indeed it suggests ignorance on his part of important material on the record. Exhibit P.4 relates to the mutation of the estate of Mollar on his murder. It is stated there that on the murder of Mollar, his father Jug Lal the heir because Jug Lal had in his life-time got the property entered in the name of his son. This was the representation made on 14-6-1947. Later at the public gathering Jug Lal stated that his son Mollar had a wife and that when he (Jug Lal) went to bring her back after Mollar''s death, her parents declined to send her to Chamrara saying that they would re-marry her and that there appeared to be no suitable match for her in Jug Lal''s family.

Jug Lal proceeded to state during the mutation proceedings that his daughter-in-law''s parents had even asserted that she had already been betrothed. He also claimed to have taken a Panchayat for the purpose of bringing the widow back but without success. It was on this representation that the mutation was effected in, favour of Jug Lal on 17-6-1947. See Exhibit P.4. Now, it is not the Plaintiff-Respondent''s case that Jug Lal had gone for this purpose to Mst. Bhago''s parents'' house, for their case, has all along been that it was Mst. Manohari who was the widow of Mollar deceased. Before us the learned Counsel for the Respondents frankly conceded that this was their case and that there is no material on the record that any attempt was ever made by Jug Lal to go to Mst. Bhago''s parents'' house or that her parents represented that they were going to re-marry her to someone else.

That Smt. Bhago was never given any notice of the mutation proceedings is not disputed and indeed there was no occasion for any such notice because Jug Lal has all along been denying the Appellant to be his daughter-in-law. On this material, I find myself wholly unable to agree with the learned Additional District Judge that there was no suppression of facts by Jug Lal at the time of the mutation in June, 1947. It may again be emphasised that the concurrent finding of the two Courts below that Mst. Bhago and not Mst. Manohari is the widow of the deceased Mollar is binding on this Court and no serious attempt was made on behalf of the Respondents to point out any error of law or vitiating circumstance which would justify reconsideration of this conclusion in face of Section 100, Code of Civil Procedure.

In regard to the alleged admission of Lal Chand D.W. 5 during his cross-examination, again, I am constrained to observe that the learned Additional District Judge has missed the real material point in his examination-in-chief this witness on 15-3-1961 clearly stated that after Mollar''s murder, he, Mst. Bhago and two more women went for mourning to Chamrara village and after staying there for one day came back. Thereafter Mst. Bhago continued to live in village Seenk. She was not sent to village Chamrara on account of fear. It was only about five or six years prior to his statement in Court (which was made in March, 1961) that she went to this village for getting the mutation in favour of Jug Lal cancelled. The witness, it appears, fainted in Court and his further cross-examination was postponed to 22-3-1961. On this date he was cross-examined and it is then that the statement relied upon by the Additional District Judge was made by-him. It is desirable to reproduce, as far as possible, the exact words of the relevant answer given by the witness:

When Mollar was murdered, we were not aware that he owned about 300/350 bighas of land but after his murder we came to know that there were lands entered in his name. Someone told me, my sister and other members of our family that lands had been entered in Mollar''s name and that such lands had since been mutated in Jug Lal''s name. I do not remember the name of that person nor do I know to which place he belonged. After having been so informed, I and my sister went to Chamrara and in the beginning stayed in the chaubara of Dharma Lamberdar. My sister stayed in that chaubara for 1 or 1 1/2 months and then she started living in Mollar''s house. Jug Lal also used to live in the same house in this way Smt. Bhago and Jug Lal started living in the same house. That house was the residential house of Mollar and Jug Lal. When my sister began to live in this house, it was then that she enquired from Jug Lal as to why he had got mutated in his own name Mollar''s lands. Deep Chand Plaintiff was at that time not living in Jug Lal''s house. I do not remember the answer given by Jug Lal but he spoke against us and thereafter we initiated legal proceedings.

From this statement it appears to me that the witness is referring to the information given to him and to his sister sometime before they actually initiated proceedings for getting cancelled the mutation in favour of Jug Lal. These proceedings were initiated in 1956. Now, if that be the position, then I do not see how the fact of imparting of this information can support the conclusion that Jug Lal''s adverse possession against Mst. Bhago started in 1947 to her knowledge. The lower appellate Court would thus appear to me to have fallen into a serious error in thinking that this statement can suggest that Lal Chand and Mst. Bhago had come to know of the mutation in favour of Jug Lal soon after its sanction.

The legal position is fairly well settled and is hardly open to doubt that where the lower Court misunderstands the real point for determination is arriving at a finding of fact and fails to appreciate and determine the question of fact to be tried, the High Court is empowered to interfere with that finding on second appeal, there being failure on the part of the Court below to discharge the duty imposed on it. This Court is in the circumstances entitled, and indeed bound to go into the evidence and arrive at its own conclusion.

Coming now to the question of adverse possession it is a well-recognised proposition of law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means a hostile possession which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse possession, 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 in denial of the true owner''s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the farmer�s hostile action.

In the case in hand, the Plaintiff came to Court with the allegation that Jug Lal had made a gift of his property in favour of his son Mollar, and since the father and the son were joint in mess and cultivation, jug. Lal continued to be in possession of the gifted property (vide paragraph 2 of the plaint). Mst. Bhago appearing as D.W. 13 was cross-examined and it was elicited from her that after her marriage she went to Chamrara village only twice during the lifetime of her husband Mollar; once she stayed there for ten days and on the second occasion for 15/16 days. After Mollar''s death she was'' afraid of being killed like her husband. It appears that it was for this very reason that after her husband''s death that she did not go to Chamrara for residing there. Besides, if the land in question was alt along in actual cultivating possession of Jug Lal, as is the Plaintiff''s case in the plaint, it is highly likely that she was'' unaware even of the entry regarding this land in her husband''s name, because indisputably she did not live with her husband for more than Just a few days.

In these circumstances I find it exceedingly difficult on the existing material on this record to come to a safe conclusion that Jug Lal''s possession after Mollar''s death was open and hostile enough to become adverse to Mst. Bhago''s title. Being in possession even during Mollar''s lifetime, as claimed by the Plaintiff in the plaint, it must be considered to have been permissive as against Mollar in his lifetime and, therefore, on this ground also it is not easy to hold that it became adverse to Mst. Bhago at arty time before she came to know of the mutation in Jug Lal''s favour which was a short while before she initiated proceedings in 1956 for cancellation of the mutation of 1947. Mere sanction of mutation at Mst. Bhago''s back without any notice to her clearly could not by it-self establish the starting point of adverse possession. On behalf of the Respondents nothing cogent or convincing has been urged to induce us to hold on the present record that Jug Lal''s possession attracted all the essential requisites of a hostile assertion of title adverse to Mst. Bhago.

It is unnecessary to refer in detail to the authorities cited on behalf of the Appellant because they do not seem to me to be of any direct or substantial assistance in the decision of the precis point before us. It would suffice to just mention them in passing. Kirori Jugal Kishore and Another Vs. Man Bai and Others, deals with adverse possession of a co-sharer which is not the case before us. Ganda Singh and Others Vs. Ram Narain Singh, deals with the case of equity of redemption. The observations in this case about the essential requisites of adverse possession are, however, quite apt but those observations merely reproduce the well-established rule and do not lay down any new rule of law, Some observations of G.D. Khosla, J., (as he then was) may here be reproduced., Said the learned Judge:

A person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal, claimants and how long his possession continued.

He must also show whether his possession was open and undisturbed.

May be that reference to knowledge of the possession on the part of the legal claimants has been somewhat loosely or unprecisely stated and what was "really meant was that the legal claimants should by due diligence be able to know of the open hostile claim and not that their knowledge must positively be proved. The true ratio of the Full Bench is of course binding on this Bench and must be followed. It is, however, unnecessary in this case to pursue this aspect, for, on either hypothesis this appeal deserves to prevail. At another place the same learned Judge spoke thus:

The law will not, however, help'' a wrongdoer if he has obtained possession of another''s property in a'' clandestine manner and has concealed the knowledge of his possession from the person who is the rightful owner.

I should like to add that if the possession has been obtained on a misrepresentation and the legal formalities relating to mutation of proceedings have not been fully complied with on account of a (sic) then also the law will not help the wrongdoer, more so if the misrepresentation concerns the absentee interested party who is a widow living in another village.

Before noticing the arguments urged by the Respondents I may briefly and in passing state that on behalf of the Appellant an argument was raised that the order obtained by the Appellant from the revenue officers cancelling the mutation in favour of Jug Lal operated as a break in the continuity of the adverse possession in support of this argument reliance was placed on the following decisions. Akbaralli Mir v. Abdul Ajij ILR 44 Bom 934 : AIR 1920 Bom 61, Akbar v. Tabu 45 Pun Re 1914 : AIR 1914 Lab. 284, Gopalan v. Sanku Panikkar AIR 1951 Trav Co. 32 and Hans Raj v. Maulu 63 Ind Cas 881 (Lah), but, in my opinion, these decisions are clearly distinguishable and are of no assistance in the present case. Adverse possession deals with actual possession and unless there is actual or constructive dispossession of the adverse possessor, I fail to see on what principle the adverse possession can be considered to have been interrupted. As I look at the legal position even a decree for possession in favour of the true owner would not by itself and without something more interrupt adverse possession. The Respondents have brought to our notice quite a large number of authorities controverting the Appellant''s contention, but I need only mention three of them:

Dagadabai Fakirmahomed v. Sakharam AIR 1948 Bom 149, Har Indar Singh v. Shiv Ram AIR 1937 Lah 602 and Mahomed Ibrahim v. Shaida, Mahomed AIR 1930 Lah 297.

The Respondent''s learned Counsel largely sought to support the decision of the Courts below by re-agitating issue No. 1 but this issue, as I have already observed, is concluded by a finding of fact and on behalf of the Respondents no serious attempt was made to show any vitiating circumstance justifying re-evaluation by us of evidence on this issue.

Having failed to persuade us to examine the'' finding on issue No. 1 the Respondent''s counsel made an unsuccessful attempt to canvass that the finding of adverse possession is equally unassailable being one of fact but this argument I have already disposed of. It was then submitted that the mutation entry in favour of Jug Lal and his continuous possession till the gift in favour of the Plaintiff and the latter''s possession thereafter must be held to be adverse and Mst. Bhago must be deemed to have known of Jug Lal''s hostile assertion from the date of the mutation in 1947. I see no warrant for this submission and in fact I have already dealt with this aspect as well earlier in this judgment. It was not disputed that she had never had any notice of the mutation proceedings; she never came to live at Chamrara till 1956 and Jug Lal never went to bring her from her parents'' house. The only point sought to be made by the Respondents was that Mst. Bhago should have been vigilant enough to keep herself in touch with the mutation proceedings. As discussed earlier, on the facts and circumstances of this case she could not have known of the hostile assertion of Jug Lal by due diligence. It is thus not easy to sustain the plea of adverse possession on the Respondents'' submission and indeed the counsel also found it exceedingly difficult to urge anything cogent or convincing to support the finding of adverse possession on the existing record.

For the foregoing reasons this appeal succeeds and allowing the same I set aside the judgment and decrees of the two Courts below and dismiss the Plaintiff''s suit. Parties are, however, left to bear their own costs throughout.

A.N. Grover, J.

I agree.