Munshi and Others vs Krishnan and Others

This appeal arises out of a suit for declaration at the instance of the plaintiff-appellants to the effect that they and defendant No. 5, Shibban, had become owners of the suit land measuring 210 Bighas 7 Biswas by adverse possession for a period of more than hundred years and for grant of an injunction restraining defendants 1 to 4 from interfering with their possession.

The plaintiffs based their claim in the Court on the allegations that they and defendant No. 5 were the descendants of a common ancestor and for over hundred years the ancestors of the plaintiffs and defendant NO. 5, and later on the plaintiffs and defendant No. 5 themselves, had been in possession of the suit land as owners and that their hostile possessory rights over the suit land had matured into ownership rights. It has been further alleged that Ram Singh, ancestor of defendants 1 to 4, had got issued the notices of ejectment to the plaintiffs during the years 1997 Bk. And the plaintiffs had filed a suit and got those notices cancelled vide the order of the Assistant Collector, First Grade, Sunam, dated Jeth 2, 1999 Bk. On the basis of the said order, mutation No. 2456 about the ownership was sanctioned in favour of the plaintiffs and defendant No. 5 on 12-6-1960, but the Assistant Collector. First Grade, vide his order, dated 25-9-1960, set aside that mutation, which order led to the filing in the present suit.

Defendant No. 5 supported the claim of defendants 1 to 4. Defendant No. 4 did not contest the suit and he was proceeded against ex parte. Defendants 1 to 3 were the main contestants before the Courts below. They denied that the plaintiffs were in hostile possession of the land in dispute. In fact, it was pleaded that the plaintiffs and defendant No. 5 were in permissive possession of the land in their possession.

On the pleadings of the parties, the trial Court framed the following issues:-

"1. Have the plaintiffs become owners of the suit land in their possession or any part thereof by adverse possession?

If issue No. 1 is not proved, are the plaintiffs owners of 7/8th share of the suit property?

Are the plaintiffs in possession of any part of the suit land? If not, to what effect?

Relief. "

The trial Court decreed the suit with the finding that the plaintiffs and defendant No. 5 were in hostile possession of the suit land which continued for a period of over twelve years and consequently they had become owners of the same. On appeal, the lower appellate court set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs with the finding that since all the plaintiffs had admittedly continued in joint possession of the suit land, one of the ingredients of adverse possession that a person claiming ownership by adverse possession must continue to remain in exclusive possession of the property in question in missing in this case as the joint possession is the very antithesis of the exclusive possession, so it could not be held that all the plaintiffs, or any one of them, were in exclusive possession of the suit land for the requisite period as to enable the Court to grant a declaration that they had become owners by adverse possession. It is against this judgment and decree of the lower appellate Court that the plaintiffs have come up in second appeal to this Court.

Learned counsel for the appellants has urged that where certain persons continue to be in joint possession under a hostile title for a statutory period of over twelve years, they acquire ownership rights by adverse possession and, in such circumstances, land under joint possession to the extent of their share shall be considered in their exclusive possession. While the learned counsel for the respondents on the contrary, has urged that a person in joint possession cannot be considered to be in exclusive possession and so even if he continues to be in joint possession for more than twelve years, he cannot acquire any ownership rights by adverse possession. He has further emphasised the fact that before a person can acquire ownership rights by adverse possession , he must establish that his possession was exclusive, that such a possession was hostile and that such a possession continued for a period of over twelve years and if any of these ingredients is missing, then such a person cannot acquire ownership rights by adverse possession.

I have given the matter my careful consideration and am of the opinion that this appeal must succeed. To appreciate the position in the present case, a brief history of the suit land may be recapitulated here. The suit land formed part of a huge area which was jointly owned by the plaintiffs and defendant No. 5 and as a result of the partition carried out in the year 1994 Bk. The suit land fell to the share of the ancestors of defendants 1 to 4, but continued to be in possession of the ancestors of the plaintiffs and defendant No. 5. Later one, as already sated, in the year 1997 Bk. , Ram Singh, ancestor of defendants 1 to 4, got a notice issued u/s 45 of the Punjab Tenancy Act against the plaintiffs and defendant No. 5, as also against their ancestors, that they were their tenants and they be ejected. That notice was resisted at the instance of the ancestors of the plaintiffs and defendant No. 5 and on 2nd of Jeth 1999 Bk. , the Assistant Collector, by a decree, cancelled the said notice on the ground that the plaintiffs and defendant No. 5 were not the tenants of the land.

The learned counsel for the respondents has cited certain decisions to show that from the fact that a person recorded as tenant-at-will was not paying any rent, it cannot be assumed that his possession was adverse t the owner, but, I do not feel any necessity to advert to those cases, because from the facts narrated above, it is clear that at least from the date the plaintiffs and defendant No. 5 contested that they were the tenants of the ancestors of defendants 1 to 4, their possession over the suit land has to be considered hostile. At this stage, notice counsel for the respondents may be taken which is reported in Hussain Ali Shah v. Sardar Ali Shah AIR 1933 Lah 786, wherein it was held that a person claiming adverse possession must get the entry corrected and must get his name entered in the column of ownership in place of the name of the original owner. I do not think, this authority can be of any avail to the respondents. In that case, the person claiming adverse possession made a statement at one stage before the revenue authorities that he was the manager of the property on behalf of the owner. So on the peculiar facts of that case it was held that if he claimed ownership of the property he should have got the entries corrected. In the case before me, the plaintiff-appellant had challenged the fact that they were the tenants of the owners and it was not incumbent on them to get the revenue record corrected. As and when their possessory rights ripened into ownership rights, they approached the revenue Court for effecting the mutation of ownership which was declined and which led to their filing of the present suit.

Now the question that arises for consideration is as to how much land was under their hostile possession and whether they continued in hostile possession of such a land for a period of over twelve years, as also as to whether a body of co-sharers in joint possession can be considered to be in exclusive possession of the land in question qua the owner. In my opinion, the theory of exclusive possession assumes importance only in the context where one co-sharer makes a claim of adverse possession against another co-sharer, because in law possession of one co-sharer has to show that he is in exclusive possession of the land under a hostile title, but where certain persons jointly possesses certain land and continue to jointly possess the said land for a period of more than twelve, years all the time under a hostile title to the owner, they will be considered in exclusive possession to the extent of their share. It may be stated here that I have taken a similar view in R. S. A. No. 1084 of 1966 (Punj), (Smt. Bhullan v. Mam Raj) decided on 28-9-1970.

Learned counsel for the respondents has drawn my attention to Jamabandi fro the year 1945-46, wherein Khasra Nos. 9330/809 and 810, measuring 10, Bighas 9 Biswas, are shown to be in self-cultivation of the landowners and from this, he has urged that at least on this portion of the land, the plaintiffs have not been able to prove their adverse possession for over twelve years. Exhibit P-13, Jamabandi for the year 1953-54, shows the abovementioned Khasra numbers in the cultivating possession of the appellants. The present suit was filed on 21st December, 1964. Although the said Jamabandi reflects the facts existed prior to its formulation, but it cannot be conclusively held as to at what time previous to the formulation of the said Jamabandi the appellants had regained the possession of the said Khasra numbers from the owners. Since it was for the plaintiff-appellants to establish their continued possession for over twelve years, which they have failed to do so, so I hold that regarding these Khasra numbers no ownership rights have been acquired by them viz. , the plaintiffs and defendant No. 5.

Lastly, the learned counsel for the respondents has urged that in the Jamabandi for the year 1994-94 Bk. , Exhibit P-10, one Lilu has been shown in cultivating possession of one share in Khewat No. 131/574 and the same Lilu has been shown in cultivating possession in the land comprising Khewat No. 612 of the same Jamabandi, Exhibit P-10. Since Lilu is a stranger to the family of the plaintiff-appellants, so it cannot be held that the suit land remained in their possession for the statutory period of over twelve years as co-sharers in ancestral shares. There is no merit in this contention of the learned counsel, because Lilu who is alleged to be a stranger by the respondents'' counsel is not a stranger, and he is the son of Siban and Siban is son of Sarnam, who is a collateral of the plaintiffs; and the respondents have led no evidence at all to prove that Lilu son of Siban is a stranger to the family of the appellants.

In view of the reasons stated above, this appeal succeeds except in respect of the land measuring 10 Bighas 9 Biswas comprising in Khasra Nos. 9330/ 809 and 810 indicated above and the judgment and decree of the Court below stand modified accordingly. There is no order as to costs.

Order accordingly.