Sewa Singh vs Joginder Singh

J.V. Gupta, J.

This is defendant''s second appeal against whom suit for possession has been decreed by both the Courts below. It is the common case of the parties that both plaintiffs as well as the defendant are the heirs of common ancestor Sher Singh son of Sujan Singh. The family owned land in two villages known as village Nagri (Gobindpura) and village Nagra, which are adjacent to each other. Sher Singh had fours sons, Atra, Dhiana, Lal and Kahna. Plaintiffs are the heirs from Atra, whereas defendants are the heirs of Kahna. Plaintiff''s father Mehar Singh died on 15th September, 1968. After his death mutation was sanctioned in favour of the plaintiffs on 31.7.1972, vide mutation order Exhibit P2. The plaintiffs filed the present suit for possession in November, 1972, alleging that their father Mehar Singh was in possession of the suit land during his life time, after his death the defendants have taken forcible possession of the suit land and, therefore, on the basis of their title they are entitled to the possession thereof. In the written statement filed on behalf of the defendantappellant it was pleaded that Mehar Singh was not the owner of the suit land as alleged. It was stated that forefathers of the parties had exchanged their land more than 60 years ago, as a result of which the land in dispute had fallen to the share of the defendant''s predecessorininterest. It was pleaded in the alternative that in any case the defendant has become owner of the suit land through adverse possession. The plaintiffs never asserted their claim over the suit land nor their father Mehar Singh ever contested the same. The trial Court came to the conclusion that since the defendant has been shown in possession of the disputed land as ''Ghair Maurusi Bawaja Exchange'' without any exchange deed having been executed between the parties and, therefore, no valid title could be passed to the defendant in the suit land through an oral exchange. It was further found that although the possession of the defendant is not forcible, but is still illegal and it is without a valid title. On the question of adverse possession, it was held that the defendant had never become owner of the land in dispute by way of adverse possession. In view of these findings the plaintiff''s suit was decreed. In appeal, the learned Additional District Judge affirmed the said finding of the trial Court and thus maintained the decree passed in favour of plaintiffs. Dissatisfied with the same the defendant has filed the second appeal in this Court.

The main controversy between the parties to be determined by this Court is whether by virtue of the entries in the Jamabandis Exhibits D14 to D16, for the year 1959 to 1970 and Khasra Girdawari Exhibit D19 from 1970 to 1973 the defendantappellant can be presumed to be in adverse possession and this possession of his has ripened into ownership.

Learned counsel for the appellant contended that from the documentary evidence on the record it has been amply proved that the ancestors of the parties owned land in two villages, i.e., village Nagri (Gobindpura) and village Nagra. The defendant after the exchange had no land in village Nagri and in lieu thereof got the land in village Nagra and since then he is continuing in possession as such and the entries to that effect in the revenue record, i.e., ''Ghair Maurusi Bawaja Exchange'' duly prove the contention of the defendant. These entries continue from the year 1959, whereas the suit was filed in November, 1972, i.e., more than 12 years thereafter and thus the defendant has acquired ownership by adverse possession as well. According to the learned counsel, in Punjab oral exchange was permissible as Section 118 of the Transfer of Property Act was not made applicable to the Punjab State as such. In support of this contention reference was made Hardit Singh v. Gulzara Singh and another, 1973 P.L.J 329 and Sardara Singh and another v. Harbhajan Singh and others, 1974 P.L.J 341 (D.B.). Thus, argued the learned counsel, the approach of the Courts below in this behalf was wrong, illegal and misconceived. It was also pointed out that from the entries in the revenue record except one Khasra number, i.e. 887 on the remaining land the defendant has been in possession without payment of any Lagan because of the exchange. Even the entries in the Khasra Girdawari Exhibit P6 for the years 1959 to 63, wherein the cultivation was shown that of Mehar Singh, was not accepted by the Courts below in view of the entries in the Jamabandi for that period. In this way the defendant continued to be in possession of the suit land for more than twelve years and thus has become its owner by adverse possession. It was further contended that according to the plaintiffs they were dispossessed after the death of their father Mehar Singh, whereas there is no evidence on the record to show that Mehar Singh was ever in possession of the suit land or that he ever made any claim to the same.

On the other hand learned counsel for the plaintiffrespondents submitted that since the defendant has taken a specific plea of exchange in the written statement and having failed to prove the same he cannot be allowed to assert that he has become owner by way of adverse possession. According to the learned counsel both the pleas are contradictory. It was further argued that the defendant has not led any evidence to prove that which land was given to the plaintiff''s ancestor in exchange. Thus, argued the learned counsel, from the evidence on the record it has been rightly held by the Courts below that the defendant has failed to prove his adverse possession over the suit land.

I have heard the learned counsel for the parties and I have also gone through the relevant evidence on the record. It had been concurrently found by both the Courts below that from the documentary evidence on the record in the form of Jamabandis. Exhibit D14, for the year 195960, Exhibit D15 for the years 196264, Exhibit D16 for the years 196970 and from the Khasra Girdawari entries in Exhibit D19 for the years 1970 to 1973, the defendant has been in continuous possession of the suit land except Khasra No. 887. All entries in the column of cultivation are that the defendant is in possession as ''Ghair Maurusi Bawaja Exchange''. The story put up by the plaintiffs that after the death of their father Mehar Singh, they were forcibly dispossessed by the defendant has not been accepted by the Courts below, nor there was any evidence to that effect. Thus the sole question to be considered is whether from this evidence the defendant has been able to prove his adverse possession over the suit land or not. According to the approach of the lower appellate Court since there was no written exchangedeed executed between Rulia Singh and Bishna Singh, nor there being any specific entries in the first settlement Exhibit D4, second settlement Exhibit D5 and the third settlement Exhibit D6, regarding that exchange, it cannot be said that there was any valid exchange between the parties. Rather it presupposes that there had been no exchange, as according to the lower appellate Court an exchange deed relating to the immovable property of the value of Rs.100/ or more is compulsorily registrable. This approach, as observed earlier, is wholly wrong, illegal and misconceived. There is a note in the Exhibit D3, the pedigree table relating to village Gobindpura (Nagri), wherein it has been stated that as regards Dhiana, etc. sons of Sher Singh entries have not been made therein because they are settled in village Nagra and have no concern with this village. Moreover it is the common case of the parties that the defendant has no land in village Nagri. That being so it presupposes that when the defendant or his ancestor left village Nagri, they got the land in village Nagra, where the suit land is situated. Apart from that, according to the judgment of this Court in Sardara Singh''s case (supra) oral exchange in the State of Punjab was permissible as the provisions of Section 118 of the Transfer of Property Act regarding exchange being were not made applicable to the State of Punjab. Thus the oral exchange being permissible under the law it cannot be successfully argued that there was no valid exchange. In Tehal Singh v. Mehar Singh and others, AIR 1964 Punjab 451, it was held that where mutation of exchange is not sanctioned by the Revenue Authorities, the exchange is recorded in the revenue record as tenant instead of owner, the suit was barred by adverse possession. The question that the possession should be open, notorious, hostile is quite evident in the present case, as the defendant has been in possession of the suit land at least from the year 1959 without paying any Batai claiming to be in possession by way of exchange. The plaintiffs or their father Mehar singh never contested that claim of the defendant. However, if the defendant would have been allowed to settle on the suit land as tenant under the plaintiffs, then question might have arisen that from what stage the defendant started claiming adversely against the plaintiffs. This is not the situation as regards the facts of the present case. Even the Courts below have found as a fact that since the year 1959 to 1973 the defendant has been in continuous possession of the land in dispute. Even the entries in Khasra Girdawari, Exhibit P6, in favour of Mehar Singh were not found to be correct in view of the entries in the Jamabandi for that very period. In this view of the matter, from the evidence on the record it is fully proved that the defendant got the suit land in oral exchange from the ancestors of the plaintiffs and he is in possession thereof as such. Moreover, he being in possession for more than 12 years at the time of the filing of the suit, he has become its owner by adverse possession as well. Consequently the appeal succeeds, the judgments and decrees of the Courts below are set aside and the plaintiffs suit is dismissed, except for Khasra No. 887 (6 Bighas 5 Biswas) over which the possession has been shown that of Mehar Singh throughout. The parties will bear their own costs.

The appellant moved C.M. No. 3057C of 1985 for seeking permission to produce additional evidence. The same has been accepted without the said evidence.