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Judgment
Rajiv Sharma, Judge
This Regular Second Appeal is directed against the judgment and decree dated 11.8.2009, passed by the learned District Judge, Kullu, District Kullu, in Civil Appeal No. 77/1995-21/2008. Material facts, necessary for adjudication of this Regular Second Appeal, are that the appellants/plaintiffs, namely, Sh. Jiwa Nand alias Jiwa Ram and ors., (hereinafter referred to as "the plaintiffs" for the sake of convenience) have filed a suit No. 98 of 1993 against the respondents/defendants, namely, Sh. Atma Ram and ors. (hereinafter referred to as "the defendants" for the sake of convenience), seeking declaration with consequential relief of injunction in the Court of learned Sub Judge, 1st Class, Kullu, to the effect that the plaintiffs are owners in possession of the suit land to the extent of 45/64 shares measuring 12-10-0 bighas out of the suit land and that the plaintiffs are tenants in possession of the land measuring 2-9-0 bighas out of the total land measuring 5-7-0 bighas falling in the share of the defendants and that they have become the owners by way of adverse possession to the extent of share of Smt. Kali etc., i.e. 15/64 shares.
The subject matter of the dispute between the parties is land measuring 18-2-0 bighas comprising of khata khatauni No. 144/395, khasra Nos. 4083, 4125, 4457, 4461, 4462, 4479, 4480 and 4484 kitta 8, situated in phati Gramang, Kothi Choparsa, Tehsil and District Kullu, vide copy of jamabandi for the year 1989-90.
The suit was resisted by the defendants. The trial court decreed the suit for joint possession on 31.8.1995. However, issues No. 1 and 2 were decided against the plaintiffs. The plaintiffs preferred an appeal bearing Civil Appeal No. 77 of 1995, before the learned Additional District Judge, Kullu, which was dismissed on 9.8.1996. The plaintiffs filed a Regular Second Appeal No. 363/1996 against the judgment and decree, dated 9.8.1996 in this Court. This Court on 3.4.2008 upheld the findings returned by both the courts below qua issues No. 1 to 4, however, the matter was remanded back to the first Appellate Court to decide the plea of adverse possession, raised by the plaintiffs. The parties were directed to appear before the first Appellate Court on 5.5.2008.
The learned District Judge, Kullu, framed the following issues on 24.7.2008:
Whether the plaintiffs have become owners in possession of the share of Smt. Kali by way of adverse possession?
2 Relief.
The learned District Judge, Kullu, dismissed the appeal on 11.8.2009. Hence, this regular second appeal, which was admitted on the following substantial questions of law on 20.7.2010:
When the Lower Appellate Court after the remand framed additional issue, was not it incumbent for Lower Appellate Court to have called the report of the Trial Court on additional issue and thereafter decide the matter? Was not it necessary to permit the parties to lead evidence either before the Trial Court or before the Lower Appellate Court on additional issue framed, irrespective of observation of the Hon''ble High Court in remand order?
Whether the Lower Appellate Court has misread the pleadings oral and documentary evidence especially Ex. DW-1/B and Ex. DW-1/D to come to the conclusion that the plaintiffs have not acquired title to the share of Smt. Kali by adverse possession?
Mr. Bhupender Gupta, learned senior counsel for the plaintiffs, on the basis of the substantial questions of law farmed, has vehemently argued that the first Appellate Court has misread and misconstrued the oral as well as documentary evidence. According to him, the plaintiffs have duly proved the ingredients of adverse possession.
Mr. Rajnish K. Lall, learned counsel for the defendants, has supported the judgment and decree passed on 11.8.2009.
Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence.
I have heard the learned counsel for the parties and have gone through the records carefully.
In order to prove the plea of adverse possession, one of the plaintiffs has appeared as PW-1. He deposed that after 1996, his father came in possession as owner to the share of Smt. Kali and after his death the plaintiffs came in possession of the same. He has also deposed that in the disputed land measuring 2-9-0 bighas, his father was inducted as a tenant by the defendants. This issue has already been decided by the trial court and the same was upheld upto this Court. In cross-examination, he has categorically admitted that Smt. Dehri had never mortgaged her share in favour of Sh. Mullu. He has also admitted that the defendants are joint owners in possession along with the plaintiffs and the land has never been partitioned.
PW-2, Mani Ram, has deposed in his examination-in-chief that the defendants are in possession of 2-9-0 bighas of land out of the disputed property. He did not know as to whether Smt. Dehri was also owner in the suit property and that Smt. Kali has sold her share in favour of the plaintiffs in the year 1966.
One of the defendants, namely, Atma Ram, appeared as DW-1 and deposed that the disputed property previously was owned and possessed by Dashmu, Reshmu and Kali to the extent of 45/64 shares and 1/4th share to the extent of 19/64 was of Dehri. According to him, share of Dashmu, Reshmu and Kali was mortgaged with Basakhu and Mullu, father of the plaintiffs, purchased the mortgaged rights from Basakhu. Smt. Dehri, holder of 1/4th share of the property vide sale deed Ext. DW1/A sold her share in favour of the defendants. Smt. Reshmu and Smt. Kali sold 30/64 shares vide sale deed in favour of Mullu, but the mutation qua the share of Kali was not attested since she was minor at the time of attestation of mutation and on her attaining the age of majority, Smt. Kali sold her 15/64 share in favour of the defendants for sale consideration of Rs. 1500/-. When the mutation was not attested, they filed a suit which was decided in their favour vide judgment Ext. DW1/B and the sale deed in favour of the defendants was declared valid and binding. According to him, they became joint owners in possession of the property in dispute and have also taken the possession of the same in sequel to the decree by way of warrant of possession, Ext. DW1/D. They also purchased the mortgagee rights from Mullu and mutation, Ext. DW1/E was accordingly sanctioned. He has also placed on record copy of mutation, Ext. DW1/F and copy of the order of Tehsildar, Ext. DW1/G. He has denied the suggestion of the plaintiffs that the plaintiffs have become owners by way of adverse possession.
The plaintiffs, in their replication, have admitted that the defendants were already owners in possession of the land to the extent of 19/64 shares falling in the share of Dehri. The plaintiffs are claiming that after attestation of the mutation No. 526, dated 18.6.1966, Ext.P5, they have become owners to the extent of share of Kali. It has come on record that Smt. Kali, after attaining the age of majority executed sale deed in favour of the defendants and when mutation was not sanctioned, they filed civil suit No. 147/1967 for declaration before the learned Sub Judge, 1st Class, Kullu, which was decided on 22.4.1972 vide judgment, Ext. DW1/B. The warrant of possession was issued on 18.10.1973 vide Ext. DW1/D. The actual physical possession was given to the defendants qua 15/64 shares equivalent to 4-5-0 bighas and accordingly, Rapat No. 65 was entered qua the share of Smt. Kali and the plaintiffs have never preferred any appeal against the judgment, dated 22.4.1972, Ext. DW1/B. According to Ext. P-1, copy of jamabandi for the year 1989-90, the defendants are recorded as owners to the extent of 16/64 share without mortgage, 3/64 share has been recorded as with mortgage and in the column of possession, it is recorded as "Khud Kashat Makbuja Malkan Bilarchan be murathinan". Same entry has been repeated in the jamabandi for the year 1969-70, Ext.P2 and in the jamabandi for the year 1963-64, Ext. P3. As per copy of the jamabandi for the year 1969-70, the defendants have been recorded as owners to the extent of their shares as without mortgage and in the possession column entry that of without mortgage and mortgagee has been recorded. According to copy of jamabandi for the year 1979-80 and copy of the jamabandi for the year 1984-85, Ext. DB and DC respectively, the possession of the defendants has been recorded as without mortgage in the column of ownership and possession. These entries have not been challenged by the plaintiffs. There is presumption of truth attached to these entries. It is also proved on record that from the date of claiming adverse possession, i.e. 18.6.1966, within six years, the defendants have filed the suit and also taken possession on 18.10.1973 to the extent of 4-5-0 bighas of land qua share of Kali on the basis of warrant of possession, Ext. DW1/D, which was issued in sequel to the judgment dated 22.4.1972 passed by the learned Sub Judge, 1st Class, Kullu. The civil suit was filed against Mullu and Kali by the defendants. Sh. Mullu had never taken the plea of adverse possession in his written statement to the suit filed by the defendants. According to DW1/G, copy of the order of the Naib Tehsildar-cum-A.C. 1st Grade, Kullu, the entire suit land was ordered to be recorded in self-cultivating possession by the owners without mortgage and of mortgagees w.e.f. Ravi, 1967. The defendants have led tangible evidence and proved on record that they have become co-owners in joint possession of the suit land w.e.f. 20.12.1961, when they purchased the share of Dehri to the extent of 19/64 shares and subsequently, after purchasing the share of Kali and thereafter, the plaintiffs had also become co-owners with them.
Their Lordships of the Hon''ble Supreme Court in Vasantiben Prahladji Nayak and Others Vs. Somnath Muljibhai Nayak and Others, , have held as under:-
Shri Ramesh Singh, learned counsel appearing on behalf of the appellants next contended that in the present case the respondents have failed to prove the ouster along with other three circumstances, namely, hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. We do not find any merit in this argument. It is correct to say that the defendants have to prove three elements mentioned above to establish ouster in cases involving claim of adverse possession. However, in the present case, there is a concurrent finding of fact recorded by the courts below to the effect that the respondents are in possession of the suit land from 1935 or in any event from 1941; that they have paid revenuecess from 1940; that they have paid property taxes; that their names were recorded in the revenue records and they were granted permission by the Panchayat to construct the compound wall. Moreover, in her deposition before the trial court, Appellant 1 had deposed that her husband had died six years prior to the institution of the suit; that the suit land was in possession of her father-in-law and after his death it came in possession of Prahlad (husband); that during the lifetime of Prahlad, the defendants had asked Prahlad to allow them to construct a building on the land which he refused and that the respondents constructed the compound wall without their permission. In view of the above concurrent findings of fact recorded by the courts below on the issue of adverse possession, we do not see any reason to interfere in the matter.
Their Lordships of the Hon''ble Supreme Court in Jai Singh and ors. vs. Gurmej Singh, 2009 (1) SLJ (SC) 714, have culled out the following principles relating to inter se right and liabilities of co-sharers, as under:
The principles relating to the inter-se rights and liabilities of co-sharers are as follows:
(1) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies, that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.''
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition.
It is proved on record that at any point of time the plaintiffs have denied the right of other co-shares in the property and claimed exclusive possession to the denial of the property owners. One of the plaintiffs, while appearing as PW-1 has admitted that the defendants are joint owners and they had purchased 19/64 shares of Dehri. The plaintiffs and defendants have been recorded as co-sharers of the joint land and settled legal position is that possession of a co sharer is possession on behalf of all other co-sharers, until and unless complete ouster is pleaded and proved. The plaintiffs have themselves failed to prove that they have become owners by way of adverse possession qua the share of Kali. They are merely co-sharers in the suit property along with the defendants to the extent of their shares. In view of observations and discussions made here-in-above, there is no merit in the regular second appeal and the same is dismissed, so also the pending application(s), if any. There shall, however, be no order as to costs.