Waziri @ Gian Singh and Others vs Amar Singh and Others

K. Kannan, J.—The plaintiff who had lost in both the Courts below are the appellants before this Court. The suit had been filed for declaration that they are the owners of land measuring 3 Kanals 15 � Marlas being half share in Rectangle No. 71 in Killa No. 12/1 and 19/2 in Village Sehjo Majra, District Ludhiana. The cause of action for the suit was that the defendants claimed to have purchased the whole of the property of 7 Kanals 11 Marlas and have obtained a mutation including the share of the plaintiffs. The contention therefore was that the entry in the revenue records in jamabandi was required to be corrected and the plaintiff''s name must be entered with reference to the half share. The defendant denied the plaintiff''s entitlement to a half share in the property and denied the plaintiff''s source of title as claimed by him that the plaintiffs had got the property in exchange from three brothers Chuhar, Anantu and Mansa. The defendants also contended that they were in possession of the whole of the property from the date of purchase from 13.3.1967 and prescribed title to the property by adverse possession.

The trial court held that the plaintiff had not proved the compromise providing for a half share to Chuhar, Anantu and Mansa and also had not established the oral exchange. The mutation in favour of the defendant showed the entire extent as belonging to him and so do jamabandies. Since the defendants had been in possession from 1967 they had prescribed title to the property by adverse possession. This finding was affirmed by the Appellate court.

Learned counsel appearing on behalf of the petitioners points out that the courts below have actually considered the fact that even the vendor of the defendant had sold only a half share in 7 Kanals 11 Marlas and the revenue entry also had entered the plaintiff''s predecessor''s name along with the defendant and described the defendant to be only entitled to a half share but only in the mutation it had been wrongly entered that the first defendant was the only owner of the property. Neither the jamabandi nor the khasra girdawari showed the name of the first defendant as an exclusive person in ownership and possession.

I have seen through the originals as filed in Court. The sale deed in favour of the first defendant is only in respect of half share. The plaintiff''s claim only half share in the property as a property obtained in exchange with the three brothers who were sons of Fatiha. I notice from the evidence that Fatiha had a brother by name Moti and his son was Balu. Balu has sold the half share to the defendant and Fatiha''s sons the three persons named above have been shown to be entitled to half share in the jamabandi. When the plaintiff was referring his own entitlement through an oral exchange, it will be asking for the impossible to produce the document to prove an oral exchange other than through evidence of witnesses. The compromise itself is produced before court as Ex. A which shows that in the proceedings before the Collector on 29.11.1962 Balu''s right has been confirmed for a half share and the sons of Fatiha has been confirmed for half share. The trial court and the Appellate court were in error in observing that the jamabandi entries showed the defendant to be the absolute owner of the whole property. I find the entries have been wrongly read and understood. The entries show only a half share of Balu and half share of sons of Fatiha. If the defendants were setting up a plea of adverse possession the burden was on the defendant to prove the same. There was no such proof of exclusive possession of more than 12 years. The dismissal of the suit by both the courts below was erroneous and liable to be set aside. The questions of law raised are answered in favour of the appellants and the appeal is allowed. The plaintiffs are declared entitled to the half share in the extent mentioned in the plaint and the mutation is liable to be corrected in accordance with the entitlement as found by this Court. The Second Appeal is allowed with costs. The counsel''s fee is Rs. 5,000/-.