Surjan Singh vs Gurdev Kaur and others

J.V. Gupta, J.

This judgment will dispose of R.S.A. Nos. 1626 and 1887 of 1976, as both these appeals have been filed against the same judgment of the Additional District Judge, dated 31st August, 1976.

Smt. Sohu had three daughters, namely Smt. Indo, Gurdev Kaur and Bhagwan Kaur. Smt Indo died without leaving any heirs. Plaintiffs, Jangir Kaur and Harpal Kaur are the daughters of Bhagwan Kaur. It was alleged that 1/4 th share in the disputed land belonged to Mst. Sohu, who was the owner and co sharer of the same along with defendant Nos 1 to 11. Gurdev Kaur daughter of Smt. Sohu pleaded that Smt. Sohu, her mother, resided with her in village Jangirana, District Bhatinda, and died thereon 2nd July, 1960. The plaintiffs asserted that the aforesaid defendants had been paying their share of crop for about 3 or 4 years before the filing of the suit and thereafter they stopped doing so. It came to their knowledge that defendants 1 to 7 got sanctioned inheritance on 7th March, 1941, falsely representing that Smt. Sohu died in 1940. Since Smt. Sohu had died in the year 1960 after coming into force of the Hindu Succession Act, the plaintiffs were entitled to her estate. Hence the present suit for possession was filed on 27th January, 1969. The defendants admitted in their written statement that Smt. Sohu was a cosharer in the suit land along with defendant Nos. 1s to 7 till her death, which according to them, took place in 1940. They denied that she was in possession of the suit land till 196364. It was further admitted that Smt. Sohu used to reside in village Jangirana with Gurdev Kaur but it was denied that she died on 2nd July, 1960 in that village. The defendants denied having paid any Batai to the plaintiffs and asserted that they are in possession of the suit land since 1940 without interruption and had thus become owners by adverse possession.

The trial Court found that Smt. Sohu died on 2nd July, 1960, as per the death entry Exhibit P.1, and not in the year 1940 as claimed by the defendants in their written statement. Thus the mutation Exhibit P.3 sanctioned in favour of the defendants on 7th March, 1941 was against facts and not binding upon the plaintiffs. It was further found that the suit was within limitation and the defendants have failed to prove the plea of adverse possession. Consequently, decree for joint possession was passed holding that Gurdev Kaur was entitled to 1/8th share whereas Jangir Kaur and Harpal Kaur were entitled to 1/6th share. Dissatisfied with the same, two appeals were filed, one by the defendant Harnam Kaur and the other by Gurdev Kaur, plaintiff, wherein she claimed that she alone was entitled to 1/4th share to the exclusion of Jangir Kaur and Harpal Kaur, who are the daughters of her deceased sister Bhagwan Kaur. The learned Additional District Judge affirmed the finding of the trial Court passed in favour of the plaintiffs. Consequently, both the appeals were dismissed. Dissatisfied with the same, the defendants have filed R.S.A. No 1626 of 1976, whereas the plaintiff Gurdev Kaur has filed R.S.A. No 1887 of 1976.

The learned counsel for the defendantsappellants in R.S.A. No. 1626 of 1976, contended that it has been wrongly held that Smt. Sohu died in the year 1960. According to the learned counsel, the evidence on the record has not been properly appreciated in this behalf. Smt. Sohu, argued the learned counsel, died in the year 1940, when mutation Exhibit P.3 was duly sanctioned in favour of the defendants. It was next contended that even if it be assumed that Smt. Sohu died in the year 1960, the present suit was barred by time because Smt. Sohu never filed any suit during her lifetime within a period of 12 years when mutation was sanctioned in favour of the defendants on 7th March, 1941. According to the learned counsel, Smt. Sohu having failed to obtain possession, within 12 years as contemplated under Article 142 of the old Limitation Act had lost her right in the suit land and the present suit filed on behalf of her heirs was thus clearly barred by time. In support of his contention, reference was made to Sardar Amar Singh v. Sardarni Shiv Datta Kaur, AIR 1973 Lahore 890, Bibi Rafiqan v. Najib Khan, AIR 1958 Patna 530, Karim Bakhsh and others v. Shadi, AIR 1938 Lahore 241, and Santa Singh Gopa Singh v. Rajinder Singh Bur Singh and others, AIR 1965 Punjab 415.

On the other hand, the learned counsel for the plaintiffs submitted that Smt. Sohu died in the year 1960 as it has been concurrently found by both the Courts below and it being a finding of fact could not be interfered with in second appeal. Thus, argued the learned counsel, if Smt. Sohu died in the year 1960, the mutation got sanctioned by the defendants in their favour in the year 1941 on the basis that Smt. Sohu had died in the year 1940, was of no consequence and did not entitle the defendants to claim ownership by adverse possession. According to the learned counsel, it was never brought to the notice of the plaintiffs or Smt. Sohu that any such entry was made in favour of the defendants. Admittedly, Smt. Sohu was alive when the defendants were cosharers in the suit land, and, therefore, in these circumstances, the question of becoming owners by adverse possession did not arise. Reference was made to Karbalai Begum v. Mohd. Sayeed and another, AIR 1981 S.C. 77, and State Bank of Travancore v. Arvindan Kunju Pankicker and others, AIR 1971 S.C. 996.

After hearing the learned counsel for the parties and going through the relevant evidence on the record, I do not find any merit in this appeal. On the appreciation of the entire evidence, oral as well as documentary, it has been concurrently found by the courts below that Smt. Sohu died on 2nd July, 1960, as per death entry Exhibit P.1. This being a finding of fact is binding on this Court in second appeal and could not be interfered with. Faced with this situation, the main argument raised on behalf of the appellants, is that if Smt. Sohu died in the year 1960, she did not file any suit during her life time to claim possession from the defendants when according to the mutation Exhibit P.3 the land was mutated in their favour. Prima facie the argument may appear to be attractive, but once it is found that the mutation Exhibit P.3 was got sanctioned illegally based on false report, then the defendants cannot be allowed to take any benefit of the entries based on such report. Moreover, it has been observed by the Supreme Court in Karbalai Begum''s case (supra) that it is well settled that mere nonparticipation in the rent and profits of the land by a cosharer does not amount to an ouster so as to give title by adverse possession to the other cosharer in possession. It has been further observed in para 7 thereof that even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being cosharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff, would be deemed to be protected by the trustees. In view of these observations, it is manifest that the position of the defendants apart from being in the nature of constructive trustees would be in law the possession of the plaintiffs. Moreover, it is in the evidence and admitted by the defendants themselves in the written statement that Smt. Sohu was not living in the village where the land was situated but was living with her daughter, Gudev Kaur, in another village. There is no cogent evidence on the record to show that Smt. Sohu had the knowledge of the adverse entries against her in the revenue records. It is well settled as has been held by the Supreme Court in The State Bank of Travancore''s case (supra) that prima facie a permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. In view of these facts, the authorities relied upon by the learned counsel for the defendantappellants have no applicability to the facts of the present case. The defendants could not be allowed to take the benefit of the mutation Exhibit P.3 in their favour which has been found as a fact by the Courts below to be based on a false report. Thus the possession of the defendants on the suit land as cosharers of the plaintiffs predecessor would be deemed to be that of constructive trustees even if no rent etc. was paid by them to the plaintiffs or Smt. Sohu. In this view of the matter, the appeal filed on behalf of the defendants is liable to be dismissed.

As regards R.S.A. No. 1887 of 1976, no meaningful argument could be raised on behalf of the appellant, Gurdev Kaur. The other two plaintiffs, that is, Jangir Kaur and Harpal Kaur have been rightly found to be owners of 1/6th share in the suit land.

Consequently, both the appeals fail and are dismissed with costs.