Prem Singh and others vs Mian Tej Singh and others

Kapur, J.—This is a defendants'' appeal against the judgment and decree passed by the learned Senior Subordinate Judge of Kangra decreeing the plaintiffs'' suit. The relationship of the parties is clear from the following pedigree table :

On 5th August 1938, the plaintiffs, Mian Tej Singh and Partap Singh brought a suit against the descendants of Himmat Singh for a declaration to the effect that the plaintiffs are the full owners and possessors of the entire land mentioned in the plaint and that the revenue entries showing defendants 1 to 8 as owners of 1/4th are contrary to facts and are not binding on the plaintiffs. The plaintiffs founded their claim on two grounds: (1) that the property in dispute had been acquired by their father, Indar Singh, or his father, Uttam Singh, and that the line of Himmat Singh had no title to the land in dispute, and (2) that the plaintiffs had been in adverse possession of the land in dispute for a large number of years and had, therefore, become owners by lapse of time. The defendants pleaded that the land was acquired by their grand-father and by the plaintiffs'' father and the father of the defendants out of joint funds belonging to the two branches of the family, and the land had remained joint and had been jointly enjoyed by the parties, the entries in the revenue record ware consequently correct.

On 4th November 1939, the then Senior Subordinate Judge, Kangra, dismissed the suit and the plaintiffs took an appeal to the High Court of Judicature at Lahore, and the case was remanded by the learned Judges on 19th April 1944. There it was conceded that the plaintiffs had not succeeded in proving that the land in dispute had been acquired by Indar Singh or Uttam Singh by purchase and the learned counsel who appeared for the appellants in the High Court, confined his arguments to the question of adverse possession. One of the pieces of evidence which was particularly relied upon by the learned counsel for the then appellants to prove his adverse possession was the application made by Soda Ram defendant on 23rd February 1912 in a proceeding brought by Thakar Singh against his brother Indar Singh, Mr. Achhru Ram who was appearing for the then respondents, pointed out to the Court that the suit in which Soda Ram made the application related to 1/4th of the property in dispute, and as the dispute was not with regard to the property which is now in dispute and which in the revenue papers is entered in the name of the defendants, Sodha Ram had, under a mistaken view, made the application above referred to. It was observed by the learned Judges :

If Thakur Singh''s suit related to 1/4th share that was recorded in the name of Indar Singh, Soda Ram could have no possible title to it and the denial of his title in this l/4th share would not affect the question of limitation to the prejudice of the defendants. If on the other hand, Thakar Singh''s suit related to the entire land now in dispute, the inaction of Soda Ram may affect the question of limitation to the prejudice of all the defendants. It is necessary, therefore, to determine whether Teja Singh''s suit related to a 1/4th share recorded in the name of Indar Singh in the year 1912 or whether it related to the property now in dispute.

The learned Judges remanded the suit and framed two issues in place of the one issue which had been framed by the trial Court, which were to the following effect: "(1) Are the plaintiffs the sole owners of the land in suit ? (2) Had the plaintiffs acquired title by adverse possession to the land in dispute at the date of the institution of the suit ?"

The case on remand was tried by Mr. Mani Ram, Senior Subordinate Judge, Kangra, and be found on issue I that the plaintiffs had failed to prove the sole ownership of the land in dispute. As a matter of fact before him also it appears that it was admitted by the plaintiffs that the ownership of the land by purchase by their ancestors had not been proved by them. On issue 2, i. e, adverse possession, the learned Judge came to the conclusion that the issue had been proved. For this purpose he relied mainly on the two litigations of the years 1912 and 1930. He, therefore, decreed the plaintiffs'' suit and against this decree the defendants have come up in appeal to this Court.

The point for determination is whether the plaintiffs have made out their claim to adverse possession. The learned counsel for the appellants has contended that there never has been an open and hostile title of exclusive ownership by the plaintiffs at any stage. With regard to the litigation of 1912, he has drawn our attention to the proceedings which are printed at page 71 of vol. I of the printed paper book. That was a suit brought by Thakar Singh against his brother Indar Singh for possession of land and Soda Ram applied to be made a party to the proceedings on 23rd February 1912. The learned District Judge, on this application, passed the following order:

The matter can wait till the applicant brings the suit that he says that he will. He says that the lands in suit belonged to a common ancestor of himself and Uttam Singh, whose sons parties are. He cannot be made a party on the present application. His proper remedy would certainly seem to be by regular suit, and it will be seen that applicant says that he will bring one. His present application is dismissed.

It will be seen that no notice of the application of Soda Ram was sent to either Teja Singh or Indar Singh and on the day that the application was made, it was dismissed. On this record it has not been proved as to what exactly was the property for which the suit had been brought by Teja Singh against Indar Singh, nor is it proved that either Teja Singh or Indar Singh had, at any stage, denied the title of the defendants to their 1/4th share which is the property now in dispute. It was for the plaintiffs to show that some hostile assertion was made by them with regard to the share of the defendants. All that the proceedings show is that an application was made by Soda Ram which was dismissed that very day. This is no proof of the assertion of hostile title by the plaintiffs or their predecessors in title against the defendants. In my opinion, the learned Judge has erred in thinking that from the date of this application time began to run against the present defendants.

The second piece of evidence which the learned Judge has relied on, is the litigation of 1930. At page 157 of vol. III of the printed paper book, we find Ex. P-P which is the written statement filed by the present defendants in a Revenue Court in reply to a claim made by Mian Indar Singh for recovery of Rs. 13,800 on account of arrears of rent for three years from the tenants. The plaintiffs have not proved their plaint, nor is it clear as to what they had said with regard to the present defendants who were defendants 3 to 8 in the revenue suit. The present defendants asserted there that they were co-sharers of the land in suit and had been jointly in possession with the plaintiffs of the land which was owned by them and they also claimed that they were entitled to rent. Several issues were raised on the pleadings of the parties in the suit and issue 1 was "Is the suit bad for misjoinder of parties?" and on this issue the Assistant Collector said that defendants 3 to 8 were co-owners with the plaintiff; but possession of all the lands was with the plaintiff. Issue 5 was "Have defendants 3 to 8 right to join as plaintiffs" and the finding on this issue was, that the defendants had given no proof and, therefore, the issue was decided against them. Here again, there is nothing to show that any hostile title was set up by the plaintiffs which had to be denied by the defendants and even if it was, the present suit was brought within eight years of the rent suit, and therefore, this litigation can be of no assistance to the plaintiffs under the circumstances of this case.

The learned trial Judge also relied on the circumstance that the plaintiffs had been receiving rents and profits of the land in dispute which was an indication of a denial of the right of the defendants to receive the rents and profits, and also that the defendants had never been in possession of the land, and therefore, the presumption arose of an ouster of the defendants and adverse possession was thereby established for over 12 years. The learned Judge was alive to the fact that a mere non-receipt by one co-sharer of share in the profits of land is not sufficient to establish adverse possession, but in his opinion the litigation of 1912 coupled with the circumstances mentioned above were sufficient for holding that there was an overt act of denying the defendants'' title for more than 12 years and thus adverse possession was established.

As I have shown above neither the suit which had been brought by Teja Singh against Indar Singh in the year 1912, nor the rent suit in 1930, are proof of any assertion of hostile title by the plaintiffs against the defendants and in those circumstances the only thing left for Consideration would be the possession of plaintiffs of the land in dispute, their realization of the rents and profits and payment by them of the land revenue. As a matter of fact Mr. Daya Kishan Mahajan very strongly relied on these circumstances in support of his submission that the adverse title had been made out. The possession in order to be adverse must be adequate in continuity, in publicity and in extent. The classical requirement is that the possession should be nec vi nec clam nec precario. But the circumstances that Mr. Mahajan relies on in proof of his adverse possession do not in law amount to adverse possession. In the case of co-owners in the absence of an open assertion of a hostile title by one, to the knowledge of others, there can be no ouster; and the mere fact that the asserter proves non-participation in the profits by the defendant and exclusive possession by him would not establish adverse possession. See AIR 1931 339 (Lahore) . In Corea v. Appuhamy, 1812 A. C. 230 : (81 L. J. P. C. 151), it had been proved that the possession of the defendant had been undisturbed or uninterrupted since the date of his entry, but his title was common to himself and his three sisters, and it was held that the title of the defendant enured for the benefit of his co-proprietors, and the principle recognised by Wood V. C. in Thomas v. Thomas (1856 K. & J. 79 : 25 L. J. Ch. 159), held good: possession is never considered adverse if it can be referred to a lawful title. Nothing short of ouster or something equivalent to ouster can result in adverse possession. In Hardit Singh v. Gurmukh Singh, 64 P. R. 1918 : (A. I. R. 1918 P. C. 1), it was held that uninterrupted sole possession of a joint estate by one of the members of a joint family without more, must be referred to the lawful title possessed by the joint holder to the joint estate and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested member. It was also held in that case that if possession may either be lawful or unlawful, in the absence of evidence, it must be assumed to be lawful. In the Privy Council case it was observed by Lord Buckmaster : "It by exclusive possession of joint estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family."

In that case the village of Bhagsar had been occupied for many years by defendants and their predecessors and this was held to be insufficient to prove exclusion of plaintiffs.

In Jogendra Nath v. Baladeo Dass, 35 Cal. 961 : (6 C. L. J. 735), it was held that

the fundamental rule is that the entry and possession of land under the common title of a co-owner will not be presumed to be adverse to the others, but will ordinarily be held to be for the benefit of all.

To use the language of Story J. in Ricard v. Williams, (1882) 7 wheaton 107, the law will never construe a possession tortious, unless from, necessity; on the other hand it will consider every possession lawful, the commencement and continuance of which is not proved to be wrongful, and this upon the plain principle that every man shall be presumed to act in obedience to his duty, until the contrary appears. In other words, as the same learned Judge puts it in Prescott v. Nevers (1827) 4 Mason 326,

the only difference between the possession of a co-owner and other cases is that, acts, which, if done by stranger would per se be a disseisin, are in the case of tenancies in common perceptible of explanation consistently with the real title; acts of ownership are not, in tenancies in common, acts of disseisin.

Mr. Mahajan has relied on a passage given in Varada Pillai v. Jeeva Rathnammal, 43 Mad. 244 at p. 252 : (A. I. R. 1919 P. C. 44), where Viscount Cave has referred to the limits of the rule defined in Culley Doe v. Taylorson, (1840) 52 R. R. 566 : (9 L. J. (N. S.) Q. B. 288). The rule there laid down is as follows:

Generally speaking one tenant in common cannot maintain an ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant tenant in common has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster....

In my opinion this passage referred to by Viscount Cave is of no assistance to the plaintiffs. There are no circumstances other than participation of rents and profits, which go to show the beginning of adverse possession or the assertion of a hostile title. The cases which I have referred to above show that a co-tenant will not be permitted to claim the protection of the statute of the limitation, unless it clearly appears that he has repudiated the title of his co-tenant and is holding adverse to him. It must further be established that the fact of adverse holding was brought home to the co-owners either by information to that effect given by the tenant in common asserting the adverse right or there must be outward acts of exclusive ownership of such a nature as to give notice to the co-tenants that an adverse possession is intended to be asserted. A silent possession accompanied with no act which can amount to an ouster or give notice to his co-tenant that his possession is adverse, is not adverse possession. Mere possession, however, exclusive or long if silent cannot, in my opinion, give a co-tenant any title as against the other co-tenant. If the only circumstances proved are exclusive possession by the plaintiffs, realization of rents and profits by them and non-participation of the defendants and payment of land revenue by plaintiffs, adverse possession of the plaintiffs will not be proved thereby.

In my opinion the learned Judge was in error in holding that the plaintiffs had proved their adverse title.

In the result the appeal succeeds and must, therefore, be allowed and the suit of the plaintiffs dismissed. The appellants will have their costs in this Court as also in the Court below.

Harnam Singh, J.

I agree in dismissing the suit with costs throughout.