Sohan Singh vs Fauja Singh and Others

P.C. Pandit, J.—This second appeal arises out of a suit brought by Sohan Singh appellant for joint possession of l/3rd share in the land in dispute. His allegations were that he and Fauja Singh and other respondents were occupancy tenants of the said land and he had l/3rd share therein. His father Bhagat Singh left the village about 40 years ago and settled in another village close-by; while the defendant-respondents alone continued in possession as co-sharers. Under the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, hereinafter called the Act, all the occupancy tenants had acquired proprietary rights in the said land. On coming back to this village, he asked for his share in the land and the same was refused by the respondents and that led to the filing of the suit.

The defendants contested the suit and pleaded inter alia that the plaintiff was not the son of Bhagat Singh deceased who had l/3rd share in the occupancy rights. Bhagat Singh had left the village a long time back and abandoned the rights in the said land. The defendants alone paid the compensation amount to the landlords and acquired proprietary rights in the land. It was also claimed that the defendants had become owners of the suit-land by adverse possession for more than 12 years.

On the pleadings of the parties a number of issues were framed. The trial Court held that the plaintiff was the son of Bhagat Singh who was a co-sharer to the extent of 1/3rd share in the occupancy rights in the land in dispute; that the plaintiff and the defendants had acquired proprietary rights in the said land under the provisions of the Act; that neither the defendants had become owners of the plaintiff''s share in the land by adverse possession, nor had the plaintiff lost his right in the said-land by abandonment; that the plaintiff was not estopped by his act and conduct from bringing the present suit and that the suit was within limitation. On these findings the plaintiff''s suit was decreed. Aggrieved by this decision the defendants went in appeal before the learned Senior Subordinate Judge, Amritsar, He, while confirming the findings of the trial Court, came to the conclusion that Bhagat Singh, the father of the plaintiff, had abandoned his rights in the land in dispute and the defendants had become owners of the same by adverse possession. On these two findings, the appeal was allowed and the plaintiff''s suit was dismissed. Against this decision, the present second appeal has been filed by the plaintiff.

Learned counsel for the appellant submitted that the learned Senior Subordinate Judge had erred in law in holding that the plaintiff''s father had abandoned his rights in the land in dispute and that the defendants had become owners of the same by adverse possession.

After hearing the counsel for the parties, I am of the view that there is merit in the contention raised by the learned counsel for the appellant. While holding that Bhagat Singh had abandoned his rights in the land in dispute, the learned Senior Subordinate Judge has remarked that he left the village and settled in the village of his father in-law and remained absent continuously for a period of 40 years from his own village. He left the occupancy rights in dispute wholly unattended. In case he had any intention to resume them he would have paid his share of the malikana and appointed some tenant-at-will to cultivate his share.

It is admitted that Bhagat Singh had l/3rd share in the occupancy rights. His name continuously remained in the revenue records and was never deleted therefrom. Even when the occupancy tenants became proprietors under the provisions of the Act, his name still remained in the column of ownership. On his death in September 1953, his share was mutated in favour of his son, Sohan Singh plaintiff. It is in the evidence of the plaintiffs P.W. 4 that he had paid the compensation money due under the Act to the landlord Darshan Singh. This statement of his was not challenged in cross-examination. The mere fact that Bhagat Singh or his son Sohan Singh had not joined in sharing the profits of the land would not show that they had abandoned the land or that the defendants, who were admittedly co-sharers with them, had become owners of their share as well. It is possible that since Bhagat Singh had not been tilling the land and paying his share of the rent, he may not have asked the defendants to give him his share of the profits of the land; or it may be that the rents and the profits of this land were almost equal. In any case, it could not be held that Bhagat Singh had abandoned the land in dispute. As held in Gur Parshad etc. v. Mst. Asharfi1, abandonment was a positive act, the inactivity or the passive attitude of a person could not be interpreted as an act of abandonment. A man must expressly say that he gives up his right. If he remained quiet, it could not be said that he was forsaking his title to property or his interest in any other matter. Abandonment meant an "intentional quitting of possession by the proprietor coupled with an intention not to resume it", vide Sain Ditta v. Ghulaman3. Mere non-participation in the rents and profits of this land by the plaintiff or his father would not amount to abandonment of their rights by them. Bhagat Singh had not left the occupancy rights in dispute wholly unattended. There were his co-sharers who were tilling the land and regularly paying the rent to the landlords. It was not necessary for him to appoint some tenant-at-will to cultivate his share when the same was being tilled by his co-sharers. What money he owed to the co-sharers on account of the rent and what they had to pay him on account of the profits of his share was a matter between the co-sharers inter se, with which the landlords were not concerned. A co-sharer''s possession is, in law, on behalf of all the co-sharers. Under all these circumstances, it is not possible to hold that Bhagat Singh had abandoned the land with an intention not to resume it. I would, therefore, reverse the finding of the learned Senior Subordinate Judge on this point.

As regards adverse possession, the parties being co-sharers the mere fact that the defendants alone were in possession of the property and were enjoying the rents and profits thereof would not make their possession adverse to the plaintiff. There must be some overt act by them to the knowledge of the other co-sharer against whom adverse possession is claimed. No such overt act was either alleged or proved in the instant case. Indeed the learned counsel for the respondents could not say much in support of the finding given by the learned Senior Subordinate Judge on this point.

In view of what I have said above, this appeal is allowed, the judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. In the circumstances of this case, however, I leave the parties to bear their own costs throughout.

Appeal allowed.