Sobran Singh vs Rajendra Singh @ Patelbabu

Rohit Arya, J.—Heard on admission. Instant second appeal is directed against the judgment and decree dated 10th April, 2013 passed by First Additional District Judge, Bhind in Civil Appeal No. 38-A/2012 concurring with the findings of fact recorded by the trial Court in judgment and decree dated 29/03/2012 in civil suit No. 16-A/2009.

The facts relevant for disposal of this appeal are that original -plaintiff Mahaveer Singh and original defendants No. 1, 2 and 4 are from the same origin and descendants of Late Deshraj, they are Hindu and are governed by Mitakshara Law.

As per the genealogy as mentioned in para 2 of the plaint, Jwala Singh had three sons namely Tek Singh, Gajipal and Dhurandar Singh who died issue less. Takesingh had one son namely Deshraj, who had three sons namely Mahaveer Singh, Raghveer Singh and Bhagwan Singh. Mahaveer Singh is the plaintiff and defendants Sovran Singh and Ramkumar Singh are sons of Raghuveer Singh. After the death of Deshraj Singh, plaintiff and his brothers acquired 1/3rd right out of the estate left by Deshraj Singh by succession. Description of the suit properties situated and Kapoorpura and village Varhi are as under:--

Out of the aforesaid different parts of the land succeeded by the three brothers, though the plaintiff was entitled for 1/3 of the share but defendants have manipulated their names even in respect of 1/3 undivided share of the plaintiff in the revenue records and started cultivating the land behind the back of the plaintiff without his knowledge. As per the plaint allegations while the plaintiff was looking after his standing crop on the suit land on 20th August, 2006, his right, title and interest in the land was questioned by defendants and thereafter on 23/8/2006 while the plaintiff enquired from the revenue department about the status of land as per the revenue record, it was found that over the entire land, the defendants got their name mutated in the revenue record and on 6/2/96 and 25/7/1997, Raghuveer Singh and Bhagwan Singh (real brother of plaintiff Mahaveer Singh) sold land Araji No. 146 area 0.23 hectare, 149 area 0.29 hectare situated at village Kapoorpura and Araji No. 1803 area 0.324 hectare, 1821 area 0.010 hectare, 1822 area 0.87 hectare, 1934 area 0.136 hectare situated in village Varhi respectively and executed sale deed in favour of his own sons defendants No. 1 and 2 which also includes 1/3 share of the plaintiff. The dispute as such arose was sought to be resolved through Panchayat but nothing yielded and therefore, the plaintiff filed a suit for declaration to the effect that he is owner of land in Mauja Kapoorpura Araji No. 146, 149 area 0.23 hectare and 0.29 hectare of village Kapoorpura and araji No. 1753, 1760 and 1814 area 0.180 hectare, 1.100 hectare and 0.320 hectare situated at village Varhi and for further that the sale deeds dated 25/7/97 and 6/2/1996 be declared null and void to the extent they are in relation to the land of the ownership of the plaintiff.

Defendants denied the plaint allegations and took a plea that plaintiff-Mahaveer Singh is not the son of Deshraj Singh instead he was alleged to be the son of Dhurandar Singh, brother of grandfather of defendants and led oral and documentary evidence to fortify their stand that the respondent/plaintiff is son of Dhurandar Singh. Appellants/defendants also mentioned that their father Raghuveer Singh and Bhagwan Singh were only successor of Deshraj Singh and therefore, plaintiff Mahaveer Singh is not entitled for any share in the estate left behind by Deshraj Singh. Defendants further pleaded that the sale deed executed on 6/2/1996 and 25/7/1997 are validly executed sale deeds by Raghuveer Singh and Bhagwan Singh in their favour.

As regard issued No. 1-(a), trial Court has held that the suit land in question originally belong to Deshraj and after his death his two sons namely Raghuveer Singh and Bhagwan Singh by manipulation get their names recorded in the revenue records even in respect of the 1/3 share of plaintiff Mahaveer Singh. The trial Court eventually on issue Nos. 1 and 1(a) recorded finding that Mahaveer Singh is the son of Deshraj Singh and as per Section 8 and Class I of Hindu Succession Act, Mahaveer Singh alongwith Raghveer Singh and Bhagwan Singh has succeeded the property left behind by Deshraj Singh including the suit land and therefore, is entitled for 1/3 share therein and merely because his name was not mutated in the revenue record, the plaintiff cannot be denied the original claim being 1/3 owner of the property left behind by the Deshraj Singh. The plaintiff is also entitled for getting his name mutated in the revenue record as against 1/3 share and agricultural land and also entitled for permanent injunction as to restrain the defendants not to interfere in his peaceful possession and cultivation being done by the plaintiff. Accordingly, learned trial Court decreed the suit. The trial Court while returning the findings on issue No. 3 has also rightly held that plaintiff alongwith his two brothers/defendants being the co-owner of the suit property, hence, no plea of adverse possession can be set up against Mahaveer Singh by his remaining two brothers and as regards the plea relating to limitation, it has been held by learned trial Court that the plaintiff as per the record was in government service and therefore, his remaining two brothers namely Raghuveer Singh and Bhagwan Singh and to get benefit of his absence and get their names mutated in the revenue record which has caused prejudice to the plaintiff. The cause of action shown by the plaintiff was found on 20/08/2006 when the defendants tried to dispossess him and after enquiry from the revenue records, instant suit was filed and therefore, it was found that suit was not barred by time. Defendants being aggrieved by the judgment and decree of the trial Court filed a civil appeal No. 30-A/2012 and the first appellate Court concurring with the findings of the trial Court re- appreciated the entire evidence and confirm the findings of the trial Court.

Heard learned counsel for the parties and perused the record. In the opinion of this Court, no question of law much less substantial question of law arise from the pleadings of parties, evidence brought on record, findings recorded by the trial Court and concurred by the first appellate Court and therefore, the appeal sans merits. At the outset, neither there is any pleading that Mahaveer Singh was excluded from the estate of Late Deshraj Singh nor any evidence in that behalf has been led. The entire defence has been to the effect that Mahaveer Singh is not son of Deshraj Singh instead he is son of Dhurandar Singh and therefore not entitled to be the successor of Deshraj Singh. That being so, the plea as regards ouster is totally devoid of substance. Learned counsel for the appellant is unable to point out any findings to assail the evidence recorded by Courts below as regards the fact that Mahaveer Singh is the son of Deshraj Singh. As such, the thread bare assessment of evidence on record of the Courts below are not open for any interference by this Court u/s 100 of CPC.

Learned counsel for the appellant, in support of his arguments has relied upon two decision of Hon. Apex Court in Darshan Singh and Others Vs. Gujjar Singh (Dead) by Lrs. and Others, and Bonder and another v. Hem Singh (dead) by LRs and others, (2000) 12 SCC 310.

These judgments in no way support the submissions made by him. On the contrary the judgment supports the findings recorded by the Courts below. Para 11 of the decision in Bonder and another (supra) reads as under:--

The first appellate Court relied upon the decision in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, wherein this Court referred to the decision in Corea V. Apuhamy, 1912 AC 230 (PC). In the said case the principle of law has been clearly enunciated. The relevant portion of the said judgment reads as under:- (P. Lakshmi Reddy Case, p. 318, para 4)

...it is well settled that in order to establish adverse possession of one coheir as against it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs.... The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir''s title.... It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.

This principle has been consistently applied by the Indian courts.

It is also found that the Hon. Supreme Court did not approve the order of the High Court interfering with the concurrent findings of fact of the Courts below. In this regard para 7, 8 and 9 of P. Lakshmi Reddy (supra) are also relevant, which read as under:- 7. The next question which requires our decision is whether Rulia Singh and after his death the present appellants, who were in possession of the land since 1930 and also got their names mutated, have perfected their title by adverse possession over the land of Jagjit Singh. It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers.

Learned counsel appearing for the appellants has placed reliance on the decision of the Lahore High Court in Sardar Amar Singh v. Sardarni Shiv Dati Kaur, AIR 1937 Lah 890. The learned Judge held that removal of the name of the absentee co-sharer from revenue records at the instance of other co-sharers is an overt act amounting to ouster and commences adverse possession of the co-sharers in possession, the reasons being that removal of the name was done openly and if the absentee co-sharers would have taken an interest in the land, he would not have failed to take notice of it in the ordinary course and hence his knowledge of the adverse claim for other co-sharers may be reasonably presumed. In reply, learned counsel for the respondents has placed reliance on a decision in AIR 1929 337 (Oudh) . The learned Single Judge held that if a property belongs to several co-sharers and one co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse to other co-sharers and he must be deemed to be in possession on behalf of all other co-sharers and adverse possession cannot be founded on the basis of such exclusive possession, unless there has been ouster of other co-sharers. Regarding mutation in the revenue records learned Judge held that mutation in the name of one co-sharer cannot be any indication of adverse possession until it is shown that it was obtained after a clear declaration to the effect that the title of other co-sharer was denied.

In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.

In view of the clear enunciation of law, this Court is of the view that the plaintiff continues to be the co-sharer alongwith his real brothers over the estate left behind by father Deshraj Singh and succeeded by all the three of them and he had 1/3 therein as concurrently held by both the Courts below. Continuation of mutation in the name of Raghuveer Singh and Bhagwan Singh in no way can divest the right, title and interest of Mahaveer to the extent of 1/3 share. Possession of Raghuveer Singh and Bhagwan Singh over the suit property shall be deemed to be joint possession with Mahaveer Singh. That being so, the findings and the conclusions drawn by the courts below do not warrant any interference, the appeal being devoid of question of law much less substantial question of law is hereby dismissed.