Smt. Biro and Others vs Amar Singh and Others

V.K. Jhanji, J.—This is defendants appeal.

Plaintiffs (respondents herein) filed suit for declaration of ownership of 1/2 share and also for joint possession on the allegation that the plaintiffs and defendants owned joint land being descendants from common ancestor but defendants in collusion and in connivance with the Revenue Authorities, taking advantage of the absence of the plaintiffs from the village, got plaintiffs entered as Gair Kabjan/Gair Nazir i.e. not in possession/absentee and have themselves in exclusive possession of the suit land. Plaintiffs thus sought a decree for joint possession and declaration that they are owners-in possession of land measuring 142 Kanals 6 Marlas, the total land being 284 Kanals 13 Marias. Defendants denied the claim of the plaintiffs and pleaded that the forefathers of the defendants had abandoned their possession as well as their proprietary right. They also pleaded that the suit land had earlier been in possession of the forefathers of the defendants and on their death, defendants are in possession. They further alleged that their possession has ripened into ownership by way of adverse possession as their possession is peaceful, open hostile to the knowledge of the plaintiffs.

On the pleadings of the parties, the following issues came to be struck:-

Whether the plaintiffs are owners in possession of the suit land? OPP.

Whether the defendants have become owners of suit land by way of adverse possession as alleged? O.P.P.

Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? O.P.D.

Whether the suit is not maintainable in the present form? O.P.D.

Whether the suit is barred by limitation? O.P.D.

Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? O.P.D.

Whether the defendants are liable to special costs u/s 35A, C.P.C.

Whether the defendants have effected improvements in the suit land. If so, to what effect? O.P.D.

Relief.

An additional issue was framed as under :-

Whether the plaintiffs have abandoned their right of the suit property. If so, to what effect? O.P.D.

Trial Court dismissed the suit on finding that the plaintiffs have failed to prove that the property had come to them and defendants through common ancestor. It returned a finding that the plaintiffs had abandoned their right. The issue in regard to limitation was decided against the plaintiffs and it was held that the suit was not filed within the period of limitation. In appeal filed by the plaintiffs, the judgment and decree of the trial Court has been set aside ad in consequence the suit of the plaintiffs has been decreed.

In this second appeal by the defendants, counsel for the defendants has contended that the plaintiffs and defendants are not collaterals as their is no evidence on record linking the plaintiffs and defendants with any of the common ancestor. He contended that the evidence on record clearly proves abandonment and voluntary relinquishment of rights by the plaintiffs. In support of this argument, counsel has cited Man Singh and Others Vs. Telu and Others, . He also contended that the first Appellate Court is not correct in finding that there cannot be adverse possession amongst the co-sharers. In answer to these submission counsel for the plaintiffs contended that from the statement of one of the defendants, Ajmer Singh, it stands proved that the plaintiffs are co-sharers in the suit land and have rightly been declared as such by the first Appellate Court. He contended that the defendants have neither pleaded nor proved ouster and, therefore, the first appellate court has rightly returned a finding that the defendants who are co-sharers, cannot be in adverse possession. In view of this finding, he contended that the suit brought by the plaintiffs on the basis of title, could not be said to be barred by time.

Having heard the learned counsel for the parties and on perusal of the record referred to by them, I am of the view that there is no merit in this second appeal. From the reading of the entries contained in jamabandis Ex. D.1, Ex. D2, Ex. D4, Ex. D.17, Ex. D.3 and Khatauni Istmal, D.9 for the year 1854 to 80, 1888-89, 1885-86, 1903-04, 1912-13 and 1954-55 it stands established on the record that one Ranpat was the common ancestor of the parties. The observation of the Appellate Court that the plaintiffs are descendants through his daughter either crept in because of typographical error or the first Appellate Court has not seen the revenue record in the right perspective. In the Jamabandi, Ex. D-1 for the year 1854-80, Biru, Piru, Mangal, Hukmi, Ram Singh sons of Ranpat and Peelu son of Buran son of Ranpat have been shown to be co-sharers. From this entry, it appears that Puran who was one of the sons of Ranpat, had pre-deceased his brothers, Biru etc. and, therefore, his son Peelu was sown to be one of the co-sharers along with other sons of Ranpat. Plaintiffs are descendants of Peelu. In the Jamabandi for the year 1980-81 which came to be recorded immediately before the filing of the suit, plaintiffs are sown as co-sharers. Their share is recorded as 1/2 and they are shown as Gair Kabjan being residents of Karnal town. It thus stands established on the record that the plaintiffs and defendants had a common ancestor and are co-sharers in the suit land. In this regard, Ajmer Singh, who appeared as D.W.3, fairly admitted in his statement that the plaintiffs are co-sharers. Apart from this, in the written statement too, the plaintiffs have not disputed the correctness of the entries in the Jamabandi. Rather, they have averred that the entries in the revenue record are correct, legal and according to the facts. In view of this evidence and the pleadings, it is erroneous for the counsel for the defendants to contend that the plaintiffs are not co-sharers.

The next question to be considered is whether the plaintiffs or their predecessor-in-interest had abandoned their proprietary right in the suit land. The question of abandonment i.e. to surrender one''s claim or right completely or irrevocably is always one of fact and considering the question, all the circumstances of the case are to be taken into consideration. In order to prove abandonment, learned counsel for the defendants has contended that the predecessor-in-interest of the defendants migrated from the village long ago and the defendants are presently residents of Karnal. Learned counsel contended that from the entries in the revenue record, plaintiffs and their predecessors-in-interest have been shown Gair Kabjan/Gair Hazir and the fact that the plaintiffs have shifted to Karnal where they have constructed their own house, it was a clear case of abandonment and the view taken by the first Appellate Court in this behalf was wrong. He also contended that the plaintiffs never demanded any share in Shamlat when the same was partitioned or any share in the compensation when part of the land was acquired. The circumstances which have been pointed out by the learned counsel are not sufficient to hold that the plaintiffs or their predecessor-in-interest had abandoned their proprietary right in the suit land. It is true that the plaintiffs are absentee from the village for the last 80-90 years but at the same time, their names continue to appear in the revenue record in the column of ownership. Even in the Jamabandi for the year 1980-81, plaintiffs have been shown as co-owners. The names of the plaintiffs came to be recorded in the Jamabandi because mutations of inheritance that took place from time to time were also sanctioned in their favour and it was never objected to by the defendants. DW-3 Ajmer Singh, in his examination-in-chief has admitted that at the time of consolidation, plaintiffs had come to the village to demand their share and on refusal by the defendants Panchayat was convened. Again, in cross-examination, he admitted that defendants never raised any objection before Consolidation Authorities when Devi Chand and Amar Chand, plaintiffs came to demand their share. He also admitted that in the revenue record, the suit land of the defendants is joint with the plaintiffs. DW-2, Kanungo, Land Acquisition PWD (B and R) in his cross-examination, admitted that the plaintiffs had no share in the Khewat which was acquired. In view of this admission, demanding of compensation in the land acquired in which plaintiffs had no share is of no consequence. It was than contended by the learned counsel for the defendants that the plaintiffs raised no objection when defendants created mortgage on part of the land. This circumstance too would not show that the plaintiffs had intended to abandon their right in the suit land. In the total land measuring 284 Kanal 13 Maria belonging to the plaintiffs and defendants, defendants had mortgaged only 94 kanals 3 Maria out of their share of 143 kanal 6 Maria and, therefore, defendants were well within their right to mortgage land which was not more than their share in the joint land, Bench of this Court in Kehar Singh and Ors. v. Ishwar and Ors. (1985)88 P.L.R. 530, relying on Kanhiya v. Mohabata (1960) 62 P.L.R. 494 and Sohan Singh v. Fauja Singh (1966) 68 P.L.R. 581, held that non-use perse does not create abandonment, no matter how long it continues. The judgment in Man Singh''s case (supra), reliance on which has been placed by counsel for the defendants in this case, too was noticed and distinguished in Kehar Singh''s case (supra). In Man Singh''s case (supra) in the revenue record, the plaintiffs'' name was not shown as owner nor were any steps taken to correct that entry. Apart from that, defendants had made allegation that during the period of absence of the plaintiffs, defendants had exercised their right of ownership. In the present case, all these elements are missing. Rather there is an admission on the part of the defendants that the plaintiffs had come to the village during consolidation to demand their share. The finding of the first Appellate Court that the plaintiffs have failed to prove the abandonment cannot be said to be wrong or illegal in any manner so as to be interfered with in second appeal.

Lastly, it was contended by the learned counsel for the defendants that the defendants are continuing in possession for nearly 100 years and they have become owner by adverse possession. This contention too is devoid of any merit. It is well established that uninterrupted sole possession by one co-owner of undivided property does not by itself amount to ouster of the co-owners and is not sufficient to establish his adverse possession against them and that his possession will be referred to his lawful title as co-owner and will be taken to be the possession of his co-owners. ''Ouster'' means, dispossession of one co-owner by another where a hostile title is set up by the latter and where the occupation of the latter is not without ownership. The Apex Court in Karbalai Begum Vs. Mohd. Sayeed and Another, has held that "mere non-participation in the rent and profits of the land of a co-sharer doesn''t amount to an ouster so as to give title by adverse possession to the other co-sharer in possession, indeed even, if this fact is admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharers who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees". A co-sharer, in order to prove ouster of the other co-sharer by him, has not only to plead and prove that he was treating the joint property as though it belonged exclusively to him but also this fact was known to the other co-sharer. In this case, there is no such pleadings or proof. Recently, the Supreme Court in Abubakar Abdul Inamdar (dead) by LRs. and others Vs. Harun Abdul Inamdar and Others, has rejected the plea of adverse possession raised by the appellants therein as the appellants had nowhere pleaded a single overt act on the basis of which it could be inferred that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs. The Apex Court held that no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party. In the present case, what has been proved is only exclusive possession but mere possession and enjoyment of one is not enough to constitute adverse possession unless there has been actual denial of the title of those who are not in possession.

No other point was urged by the learned counsel for the defendants.

For the reasons recorded above, this appeal shall stand dismissed with no order as to costs.