Partap Kaur vs Ismail Mohd.

Ranjit Singh, J.—Ismail son of Jumma filed suit for declaration to the effect that he is owner and in actual physical cultivating possession of agricultural land measuring 56 bighas 15 biswas situated in Village Ablowal, Tehsil and District Patiala. This claim was made on the basis that he was in actual physical cultivating possession of suit land for the last 1415 years and had not paid even a single penny as rent or Chakota to Gurbax Singh and Jaswant Singh or to Partap Kaur, who was the sole legal heir of her sons Gurbax Singh and Jaswant Singh after their death. It was further claimed that the possession of the respondentplaintiff over the suit land was open, notorious, hostile, adverse, actual, continuous and, as such, had ripened into title by adverse possession. The respondentplaintiff had filed the suit when claim was not admitted/acknowledged by the appellantdefendant.

The suit was contested by the appellantdefendant, who filed written statement alleging that the contents of para 3 of the plaint were not within her knowledge. An objection was also taken to the effect that the respondentplaintiff had no concern with the suit land. After filing of the replication, trial followed on the issue "whether the plaintiff is owner of the suit land by way of adverse possession ?" In support of his claim, the respondentplaintiff himself appeared in the witness box besides examining another witness, Parkash Chand and closed his evidence after tendering Exhibits P1 to P4 in evidence. Despite opportunity being provided to the appellantdefendant, she failed to produce any evidence. Record reveals that the appellantdefendant was given sufficient opportunity to produce the evidence but she failed to do so and, accordingly, her evidence was closed by order.

Relying upon the evidence of respondentplaintiff and the Jamabandis, Exhs. P1 to P4 produced by him, it was held by the trial Court that respondentplaintiff was entitled to the suit land by way of adverse possession and, accordingly, the issue was decided in his favour. What mainly weighed with the trial Court was the fact that the defendant has failed to rebut the claim of the respondentplaintiff and that the evidence and the record produced by him had remained unchallenged and unrebutted. The appellantdefendant failed in appeal before the first Appellate Court. It was also noticed by the first Appellate Court that no evidence had been produced and even the appellantdefendant had failed to appear in the witness box. It was, accordingly, found that there was not even an iota of evidence produced meaning thereby that the evidence led by the respondentplaintiff had gone unrebutted. The first Appellate Court, accordingly, dismissed the appeal finding no merit therein. In this background, the appellantrespondent is in Regular Second Appeal before this Court.

At the time of admission of the appeal, no substantial question of law had been formulated. At the time of hearing of the appeal, counsel for the appellantrespondent took time and, accordingly, has now placed on record the question of law that may arise in the present Regular Second Appeal. As per the appellant, the following substantial question of law would arise in the present Regular Second Appeal :

"Whether adverse possession can be claimed by son of the tenant, simply on the ground of nonpayment of rent ?"

During the course of arguments, however, counsel appearing on behalf of the appellantrespondent only made a solitary submission before me to the effect that even as per the evidence produced by the respondentplaintiff, his adverse possession was not established and hence the Courts below have erred in decreeing the suit filed. Counsel would contend that Jamabandis produced by the respondentplaintiff clearly indicate that his father was the tenant in the suit land and, as such, it could not be said that the respondentplaintiff was in actual physical possession of this land. It is in this background that counsel urged that the tenancy had not been terminated and, as such, son of a tenant was estopped under law from challenging the ownership of the suit land.

The submissions made by counsel for the appellantrespondents are made ignoring the evidence on record. It has been established on record through the evidence of respondentplaintiff and another witness examined that he was in actual physical cultivating possession of this land and, in fact, the entries in the Jamabandis showing his father to be a tenant. He had also deposed before the Court that he, in fact, was in actual cultivating possession as he had stepped into the shoes of his father. His version was supported by PW2, Parkash Chand, who testified before the Court that respondentplaintiff was in physical cultivating possession of the suit land for the last about 14 years. No evidence in rebuttal was led on behalf of the appellantrespondent. The grievance that the evidence of the appellant respondent was closed by order, can also not be heard at this stage as no challenge was ever made to such an order till date. Even in the present appeal, no challenge has been made on this count.

I have also noticed that the submissions now being made were not pleaded or urged before the first Appellate Court. Counsel appearing for the appellantrespondent could not show if any such plea had been raised before the first Appellate Court. Counsel, however, has drawn my attention to a few judgments in the cases of (1) L. Hanuman Pershad v. Roop Narain and another, AIR 1971 SC 1312; (2) Suraj Singh v. Gurdev Kaur (Punjab and Haryana), 1985 PLJ 611; (3) Harnam Kaur and others v. Malkiat Singh and others, RRR 1986 61 (P&H) : 1986 PLJ 687; (4) Karcha Singh alias Gurbaksh Singh and others v. Dewan Singh and others, RRR 1986 542 (P&H) : 1985 PLJ 237 and (5) Hari Kishan Dass v. Narsi Das and another, 1990(1) RCR(Rent) 60 (P&H) : 1990(1) PLR 206.

In L. Hanuman Pershad''s case (supra), the suit for arrears of rent against tenant and licensee was filed. Licensee had denied the title of licence and claimed his title by adverse possession. The suit was decreed against the tenant and dismissed against the licensee. The tenant had subsequently discontinued paying the rent. In these circumstances, it was held that the licensee could be evicted as his possession would not be considered to be adverse merely because the landlord had failed to bring suit for eviction against the licensee.

No such situation arises here. Here the suit claiming title by way of adverse possession has been decreed in favour of the respondentplaintiff.

Surjan Singh''s case (supra) will also have no applicability as the ratio of this judgment is that permissive possession cannot be converted into adverse possession. Even while so holding this Court had observed that the permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted adverse title to the property to the knowledge of the true owner for a period of 12 years or more. In the present case, the respondentplaintiff had asserted his title on the basis of being in possession for 1415 years prior to the filing of the suit which was not so in the case of Surjan Singh (supra).

Similar is the situation in the case of Harnam Kaur (supra). In this case, it was held that the permissive possession cannot turn into hostile possession unless some overt act open to the knowledge of true owner is there.

The cases of Hari Kishan Dass and Karcha Singh (supra) are, in my view, again not attracted in the facts and circumstances of the present case. In Hari Kishan Dass''s case (supra), it has simply been held that the person claiming adverse possession has to prove himself to be the owner to the knowledge of public as well as real owner. In Karcha Singh''s case (supra), it was said that mere nonpayment of rent would not warrant a finding that the possession had become adverse.

In this case, it has been proved through the evidence that the respondentplaintiff was in possession of this suit land to the knowledge of public and to the owner. Moreover, in the present case, no evidence in rebuttal to the assertion made by the respondentplaintiff had been led and, as such, all these cases would not apply to the facts and circumstances of the present case. All the cases referred were decided on the basis of evidence on record in the respective cases. Here there is no evidence in rebuttal to the evidence given by the respondentplaintiff.

Accordingly, I find no merit in the present Regular Second Appeal and the same is dismissed without any order as to costs.