Sukhu and Others vs Seeja and Others

Wazir, C.J.—This is Defendants' civil second appeal & arises out of a suit instituted by Plaintiffs for joint possession of half share of the suit

land comprising of 156 kanals and 8 marlas situate in village mulchhattar Tehsil Kishtwar. The Plaintiffs alleged that they were recorded as owners

to the extent of one-half share in the Jamabandi and claimed joint possession with the Defendants. The contesting Defendants resisted the suit on

the ground that the Plaintiffs were not owners of the land; that they had abandoned it and that the Defendants were holding it adversely for more

than the statutory period and, therefore had acquired right by prescription. The trial Court of Munsiff Kishtwar dismissed the suit of the Plaintiffs on

the ground that they failed to prove their possession within twelve years from the date of the suit and that the Defendant's possession had become

adverse to them The Plaintiffs appealed and the Additional District Judge reversed the finding of the trial Court in regard to the adverse possession

and decreed the Plaintiffs' suit for joint possession. The Defendants have come up in further appeal to this Court.

On behalf of the appellants it is vehemently argued that the Plaintiffs' ancestors were entered as Ghair Hazir and Ghair Qabiz in the Samvat

year/1989. It was, therefore, necessary for the Plaintiffs to show that the possession of the Defendants was not adverse. Our attention was drawn

to the Standing Order No. 23, Sub-rule (13), of Rule 99 which reads as under:

After a claimant has been Ghair Qabiz for 12 years, the burden of proving that the possession of the Qabiz was not adverse, shall be on the

claimant.

Before we discuss this rule it will be necessary to deal with the Standing Order No. 23 which contains this- rule. The Standing Order No. 23

contains Mutation Hidayats issued to the Revenue Officers with the sanction of His Highness the Maharaja Bahadur. Rule 99 of this Standing

Order deals with mutations regarding Ghair Hazir and Ghari Qabiz. In this rule the procedure la prescribed as to how the entry in regard to Ghair

Qabiz is to be made in the Revenue papers by the Revenue Officers. The person who is entered as Ghair Qabiz has a right to file a suit within one

year from the date of the entry to get that entry rectified.

In that suit according to Sub-rule (13) of Rule 99 a person who is claiming possession from the person who is Qabiz i.e. person in possession, has

to show that the possession of the Qabiz was not adverse. This is a special procedure prescribed by Sub-rule (13) of Rule 99 of the Standing

Order No. 23 for the guidance of the Revenue Officers which they have to follow in a suit filed before them under the Standing Order. These rules

will not govern the procedure which has to be followed in an ordinary civil suit.

In the present case the Plaintiffs brought a suit for the recovery of joint possession on the ground that they were co-owners and were entered as

co-owners with the Defendants in the revenue papers in respect of land measuring 156 kanals and 8 marlas and that they were entitled to Joint

possession to the extent of one-half of their share. The Defendants admitted the Plaintiffs to be co-sharers but pleaded that they had no title to the

property in view of the fact that the Defendants had been in possession of the land adversely to, the Plaintiffs for more than 12 years. The

Defendants had to show that their possession had been adverse to the Plaintiffs.

It is settled law that the possession of one co-sharer must be deemed to be the possession of all the other co-sharers and in order to defeat the title

of absentee co-sharer it is for the co-sharer in possession to prove that by some overt act he converted his possession into adverse possession to

the knowledge of the other co-sharer. It is true that in the year 1989 the ancestors of the Plaintiffs were entered as Ghair Qabiz. At that time the

ancestors of the Plaintiffs were present and they prayed that their name be retained in the proprietary column of the Jamabandhi in respect of the

land in dispute.

That was done and their names, therefore were not removed from the proprietary column but they were entered as Ghair Qabiz. The mere fact

that the entry of Ghair Qabiz was made not at the instance of the Defendants or their ances (sic) but by the Revenue Officers on their own, does

not show that the Defendants had asserted their hostile title over the land in dispute to the knowledge of the Plaintiffs or their ancestors. If the

Defendants had made an application that the names of the Plaintiffs or their ancestors should be removed from the revenue papers and they should

be entered as Ghair Hazir or Ghair Qabiz and on the basis of that application the Revenue Officers had made an entry of Ghair Hazir and Ghair

Qabiz in regard to the Plaintiffs or their ancestors, it could be said that the Defendants' hostile title started from the date the entry was made. In

support of this view reliance may be placed on Amar Singh v. Shiv Dutt Kaur AIR 1937 Lah 890 (A) in which it has been held that

the removal of the name of the absentee co-sharer from the revenue records at the instance of other co-sharers in possession of the land is an overt

act amounting to ouster and commences adverse possession of co-shareres in possession, even if no notice of removal is sent to the absentee co-

sharer whose name has been removed.

In the present case it may be mentioned that the names of the Plaintiffs were not removed from the proprietary column in the Jamabandi. It was

necessary for the Defendants to show that it was at their instance that the Plaintiffs were entered as Ghair Qabiz. That has not been done and there

is nothing on the record to show that there was any overt act on the part of the Defendants setting up their hostile title to the land in dispute. In

these circumstances the Additional District Judge has rightly held that the Defendants have not been able to prove their adverse possession for the

statutory period against the Plaintiffs. The Plaintiffs were, therefore, entitled to joint possession to the extent of their one-half share.

There is no force in this second appeal which is dismissed with costs.