Patna High Court
Najmuddin And Ors. vs Bibi Nafirunnisa And Ors. on 3 May, 1990
Equivalent citations: AIR1991PAT239, AIR 1991 PATNA 239, (1991) 2 ARBILR 357
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This first appeal arises out of a judgment and decree dated 14-10-1980, passed by Sri Ram Chandra Prasad, 1st Addl. Sub-Judge, Ranchi, in Title Suit No. 56/6 of 1976/79, whereby and where-under the said learned Court dismissed the plaintiff's appellants' suit.
2. The original plaintiff Saheb Ali filed the aforementioned suit for a declaration of title in respect of the suit property as also for confirmation of possession and in the alternative for a decree for recovery of possession thereof.
3. According to the plaintiff he and the defendant No. 4 are the successors-in-interest of one Balak Mian.
4. The genealogy of the parties as stated in the written statement is as follows :
Balak Mian _________________________________|___________________________________ | | Ist wife 2nd wife | ________|______________________________________ Saheb Ali | | | (plaintiff) Sk. Ameer Sk. Mohd. Hussain Sk. Zameer | (predeceased son) Mostt. Kasua (widow) | Sk. Bipta (D.4)
5. The plaintiff has asserted in the plaint that Sk. Mohd. Hussain died in the year I960 whereas Sk. Ameer, father of Sk. Bipta died before the preparation of the survey settlement records of right.
6. The plaintiffs have further asserted that Kasua widow of aforementioned Sk. Ameer remarried and she took with her to her newly wedded home, Sk. Bipta also. According to the plaintiffs thus, Sk. Bipta was never in possession of any portion of the properties of the aforementioned Balak Mian, and the plaintiff being in sole and exclusive possession acquired perfect and indefeasible title thereto.
7. It was asserted that defendant No. 1 is the purchaser from defendant No. 4. Defendant No. 2 is the husband of defendant No. 1 and defendant No. 3 is the brother of defendant No. 2.
8. It was stated that as there had been a dispute with regard to the possession of the properties in suit, a proceeding under Section 145, Cr. P.C. was started being M.P. Case No. 1072 of 1968. The said proceeding was dropped and as in the said proceeding title of the plaintiff was challenged, the plaintiff filed the aforementioned suit.
9. In the instant case, the defendants Nos. 1 to 3 have filed one set of written statement and defendant No. 4 filed a separate written statement. The defence of the defendants is that the defendant No. 4 was all along in possession of the properties in the suit as a co-sharer. The further defence of the said defendant is that on 27-5-1958, a joint application was filed by defendant No. 4 and the original plaintiff before the Panches for partition of their properties, in respect whereof disputes and differences had arisen amongst the parties. The said joint application was marked as Exh. D by the learned Court below. On the same day, panchanama award was made by the said Panches, which was marked as Exh. H, wherein the properties were divided by and between the original plaintiff and defendant No. 4 in equal shares. The defendants have further asserted that the said panchanama award had been acted upon by the parties. It has been further asserted that the contention of the plaintiff to the effect that defendant No. 4 had never been in possession of the properties is wrong inasmuch as his name had been entered in Register II and he has been paying rent in respect of the suit properties. The defendants further asserted that both the parties had transferred their right, title and interest to a 3rd party in terms of the aforementioned Panchanama award, Ext. H, and their respective purchasers were also put in possession of their respective purchased lands.
10. The defendants have further asserted that the suit is a speculative one.
11. On the basis of the aforementioned pleadings, the trial Court framed the following issues:
(1) Has the plaintiff cause of action for the suit?
(2) Is the suit maintainable as framed?
(3) Has the suit land been properly valued and is the Court-fee paid sufficient?
(4) Is the suit barred by limitation?
(5) Is the suit bad for misjoinder of parties?
(6) Is the panchanama genuine document acted upon by the parties?
(7) Has the plaintiff title to and possession over the suit properties?
(8) Is the plaintiff entitled to the decree as claimed?
(9) To what relief or reliefs, if any, the plaintiff is entitled?
12. The learned Court below decided issue No. 3 in favour of the plaintiff. The learned Court while deciding issue No. 5 held that the purchases of the plaintiff are necessary parties and in their absence the suit is not maintainable.
13. Issue No. 2, however, was decided in favour of the plaintiff. Issue No. 6 which was vital issue was considered by the learned trial Court in paragraphs 13 to 18 of its judgment.
14. The learned trial Court held that Ext. H is admissible for collateral purposes in evidence. It was further held that as the said panchanama containing the admission of the plaintiff with regard to the possession of the share of defendant was acted upon, the same is the best evidence, and in any event the plaintiff cannot resile therefrom.
15. The learned trial Court while deciding issue No. 4 held that the suit is barred by limitation. Issue No. 7 was decided against the plaintiff and it has been held that the plaintiff had not been able to prove ouster of defendant No. 4.
16. Upon the aforementioned findings, the trial Court dismissed the plaintiffs-appellants suit.
17. Mr. N. K. Prasad, learned counsel appearing on behalf of the appellant raised three-fold contentions before me. He firstly submitted that although the plaintiff has not been able to prove ouster of defendant No. 4 from the suit land, evidently, the plaintiff will have 2/3rd share in the properties in suit inasmuch as from the genealogical table as mentioned hereinbefore, it is evident that as Sk. Mohd. Hussain died in the year 1960, his interest in the properties will devolve upon the original plaintiff as he was a consanguine brother who is a preferential heir in relation to Sk. Bipta, as he was nephew of aforementioned Mohd. Hussain.
18. Learned counsel has further submitted that in this view of the matter, the learned Court below ought to have decreed the suit of the plaintiff to the extent of his 2/3rd share.
19. It was also submitted that it is now well settled that an arbitration award affecting partition is compulsorily registrable in view of Section 17(1)(e) of the Registration Act, 1908. According to the learned counsel as the said award was not registered the same was neither admissible in evidence nor enforceable in a Court of law. Learned counsel in this connection has relied upon on Satish Kumar v. Surinder Kumar, reported in AIR 1970 SC 833 and Ratan Lal v. Purshottam Havit, reported in AIR 1974 SC 1066.
20. The learned counsel further submitted that as the said award was not made a rule of the Court, the defendants could not have relied upon it for any purpose whatsoever.
21. Learned counsel next contended that from a perusal of the joint applications, as contained in Ext. D, it would be evident that the same was addressed to the Mukhia of the Gram Panchayat for the purpose of arbitrating the dispute and differences through panches and as noticed hereinbefore, the panchanama award was made on the same day and thus, according to the learned counsel, the function of the Gram Panchayat in terms of the provisions of the Bihar Panchayat Raj Act, 1947 being a statutory one and further as the Gram Panchayat could perform the functions of a local self-Government only the award was vitiated in law.
22. Learned counsel developing his submissions contended that in terms of the provisions of the said Act, adjudicatory functions have only been conferred upon the Gram Kutchery, in terms of Section 65 of the said Act and as the duties of a Gram Panchayat have been enumerated in Sections 8, 14 and 15 of the said Act, from a perusal whereof, it would appear that holding of an arbitration in order to settle private disputes and differences being not its function the Panchayat could not have entered into a reference for settling the disputes and differences between the parties.
23. Learned counsel further submitted that even Gram Kutchery could not have made the aforementioned award in exercise of the powers under Section 65 of the Act, as the same does not come within its jurisdiction.
24. It was also submitted that the said award having been made by panches, who did not have any jurisdiction in that regard, the award made by them must be held to be a nullity.
25. Learned counsel also submitted that in the instant case, as the said award was a nullity and in any event the same was not registered, there was no embargo on the plaintiff to file a suit for declaration of title and recovery of possession.
26. Learned counsel next contended that even Section 32 of the Arbitration Act will not operate as a bar in filing of such suit despite existence of an unregistered award. Learned counsel, in this connection has relied upon the case of V. Sanjee Vamma v. Y. Pyrnamma, reported in AIR 1984 AP 28 and Dewaram Tiwari v. Harinarain Tiwary, AIR 1948 Pat 320.
27. Learned counsel further submitted that in any event there being no estoppel against statute, despite execution of various deeds of sale by the original plaintiff, in terms of the said award, the same would not operate as estoppel against him. Learned counsel in this connection has relied upon the decision of the Supreme Court in A. C. Jose v. Sivan Pillai, reported in AIR 1984 SC 821.
28. It was also submitted that in any event from perusal of the panchanama award, Ext. H, it would appear that defendant No. 4 was to pay a sum of Rs. 403 to the original plaintiff and a condition therefor was stipulated therein that so long the aforementioned sum was not paid, the plaintiff will continue to enjoy the usufruct of the properties appertaining to his share, and as there is no evidence to show that the defendant No. 4 came in possession of the properties in question by fulfilling the aforementioned condition, the said award must be held to have not become operative.
29. Mr. Debi Prasad learned counsel appearing on behalf of the respondent, on the other hand, submitted that in view of the fact that the said award was acted upon by both the parties the plaintiff is estopped and precluded from challenging the validity or legality of the said award. Learned counsel in this connection has relied on several exhibits for the purpose of showing that the plaintiff transferred his right, title and interest even to the third party in terms of the said award. Learned counsel has further submitted that in this case the provisions of the Bihar Panchayat Raj Act have no application inasmuch as the parties themselves submitted their disputes and differences to the Mukhia of the Gram Panchayat for effecting partition of their properties.
30. Learned counsel, therefore, submitted that the punches derived jurisdiction to make the award not in terms of the provisions of the Bihar Panchayat Raj Act, but in terms of the provisions of the reference as contained in Ext. D.
31. Learned counsel further submitted that it would be evident from the entries made in register II as also the rent receipts that the defendant No. 4 came in possession in terms of the aforementioned award. It was submitted that in any event it is now admitted that defendant No. 1 had been in possession of the lands which she purchased from defendant No. 4 wherefrom itself it can be gathered that defendant No. 4 was also in possession of the lands in question.
32. Learned counsel further submitted that Ext. H in effect and substance is a memorandum of partition and not an award of the arbitrators. He further submitted that an award can also be received in evidence. In this connection, the learned counsel has relied upon a decision of the Supreme Court in Munna Lal v. Suraj Bhan, reported in AIR 1975 SC 1119 and in Khodaijaful v. Krishna Prashad, reported in AIR 1930 Pat 530.
33. It was also submitted that from perusal of Ext. B it would be evident that the award had been acted upon by both the parties and as pursuant to the said award, defendant No. 4 and thereafter defendant No. 1 came in possession of the lands in question and continued in possession for more than 12 years, they must be deemed to have acquired title by adverse possession.
34. In view of the rival contentions of the parties, the following questions would arise for consideration in this appeal:--
(1) Whether the Panchanama Award dated 27-5-1958 is admissible in evidence?
(2) What would be the effect of the admission of the plaintiff, relating to the share of defendant No. 4?
(3) Whether defendant No. 4 and consequently defendant No. 1 acquired title by adverse possession?
35. Admittedly the plaintiff and defendant No. 4 are the co-sharers. It has not been disputed before me by Mr. Debi Prasad that upon the death of Mohd. Hussain, in terms of the provisions of the Mohammandan Law, his share would have devolved upon the plaintiff and not upon defendant No. 4.
36. Further from the joint application filed before the Mukhia, by the parties for partitioning their properties by metes and bounds in relation whereof the disputes and differences between them arose, namely, Ext. D, it is evident that the plaintiff proceeded on the basis that the share of the parties in the said properties was equal. The proceeding before the arbitrators ended on the same day as the properties were divided half and half between the parties to the reference with their consent.
37. As noticed hereinbefore, Mr. N. K. Prasad has questioned the validity of the said award; firstly on the ground that the award in question Ext. H was an unregistered one and secondly on the ground that the adjudication of the disputes and differences amongst the parties was not the function of the Panches, under the Bihar Panchayat Raj Act. As noticed hereinbefore, the contention of Mr. Debi Prasad is that Ext. H is merely a memorandum of partition and not an award.
38. It is, therefore, necessary to construe the award dated 27-5-1958 for the purpose of considering its admissibility.
39. From perusal of Ext. H, it appears that the same is on a plain paper. It merely contains the statements that the properties were divided amongst the parties with their consent. The said Panchanama award also contains the details of the properties allotted to the plaintiff and defendant No. 4 respectively.
40. The submission of Mr. Debi Prasad to the effect that as the Panchanama award in effect and substance was a memorandum of partition, and therefore, was not compulsorily registrable, in my opinion, is devoid of any merit. As noticed hereinbefore, Ext. H was preceded by a joint application by the parties before the Mukhia of Gram Panchayat, which is contained in Ext. D.
41. From perusal of the said Ext. D, it appears that both the parties requested the Mukhia of Earma Karma Gram Panchayat to get the properties partitioned by holding a Panchayat in this regard. Both the parties further stated that they would abide by the decision of the Panches. The said reference dated 27-5-1958 also bears the signatures of the Panches.
42. As noticed hereinbefore, the Panchanama award was given on the same day i.e. on 27-5-1958. Thus, in my opinion, by no stretch of imagination, it can be contended that the parties had already partitioned their properties by metes and bounds and the said panchanama was reduced in writing only by way of memorandum.
43. From perusal of Ext. H, itself it will appear that statements had been made therein that the properties had been partitioned by Panchayat with consent of the parties. Thus, the partition was effected by Panchayat and not by the parties.
44. In this situation, it cannot be said that Ext. H is a memorandum of the partition.
45. In Munna Lal v. Suraj Bhan, reported in AIR 1975 SC 1119, the Supreme Court laid down the law in the following terms :
Para 6 "Turning to Ex. 'Y' we find it impossible to accept the contention that the partition of the shops was itself effected by the document. The document expressly mentions that the parties had appointed one Thakar-Chandgi Ram Gupta as a Punch and that they had decided to accept the decision given by him. The document then sets out the terms of that decision and says: "We both shall be bound by that decision". It is contended that the decision of the Punch must be treated as a nullity because a Punch is in the position of an arbitrator and he could not have acted except in accordance with the provisions of the Arbitration Act. This argument seems to us too sophisticated to be applied to the facts before us. The parties appear to have asked a person of common confidence to effect the partition and it was not intended to resort to any formal proceeding under the Arbitration Act. It was therefore not necessary for the parties to execute a formal reference or for the Punch to declare a formal written award. As a memorandum of a past event, the document could therefore be received in evidence though it is not registered. The first contention accordingly fails."
46-49. In that case, the parties orally referred their disputes to arbitration and an oral award was made.
50. The document involved in the aforementioned case namely, Ext. 'Y', merely recorded the past events and in those circumstances it was held that there had been no necessity to the parties to execute a formal reference or for the Panches, a formal written award. Such is not a case here. As noticed hereinbefore, the partition of the properties had taken effect by reason of Ext.'H' itself which is a Panchanama award. Thus the same cannot be treated to be an award in terms of the provisions of the Arbitration Act, inasmuch as the arbitrators were not named therein.
51. Merely an application was filed by the plaintiff and defendant No. 4 before the Mukhia of the Gram Panchayat to partition the properties by metes and bounds by the Panchayat. Neither the arbitrators were named therein nor any procedure in terms of the Arbitration Act was followed. It was thus a village Panchayati. In these circumstances, the same was compulsorily registrable. In Satish Kumar v. Surindar Kumar, reported in AIR 1970 SC 833, Supreme Court after considering various Full Bench decisions of different High Courts including the one of this Court in Seonarain Lal v. Prabhu Chand, reported in AIR 1958 Pat 252 held as follows :--
13. "In view of the above decisions it is not necessary to refute the other reasons given by both the Full Benches, but out of respect for the learned Judges we deal with them. We may mention that no comment was made in these cases on the provisions of Para 7 of Schedule 1 to the Act. This para provides:
"7" The award shall be final and binding on the parties and persons claiming under it respectively. If the award is final and binding on the parties it can hardly be said that it is a waste paper unless it is made a rule of the Court.
14. We are unable to appreciate why the conferment of exclusive jurisdiction on a Court under the Act makes an award any the less binding than it was under the provisions of the Second Schedule of the Code of Civil Procedure. The Punjab Full Bench held that the registration does not in any manner add to its efficacy or give it any added competence. We cannot concur with these observations. If an award affects immovable property over the value of Rs. 100/- its registration does not rid of the disability created by Section 49 of the Registration Act.
15. Regarding the difficulty pointed out by the Punjab Full Bench that there may be many registrations we are not called upon to decide whether these difficulties would arise because the language of Section 17 of the Registration Act is plain. It may be that no such difficulties will arise because under Section 16(2) of the Act what the arbitrator submits to the Court is his decision and it may be that the decision may not be registrable under Section 17 of the Registration Act. But as we have said before we are not called upon to decide this point."
Similar is the decision in Ratan Lal v. Purshottam, reported in AIR 1974 SC 1066.
52. Yet recently the Supreme Court in Lachaman Das v. Ram Lal, reported in 1989 Vol. III SCC 99 : (AIR 1989 SC 1923) held that an unregistered award cannot be looked into by a Court. It was further held that:
"It is sufficient to emphasise that an award affecting immovable property of the value of more than Rs. 100 cannot be looked into by the Court for pronouncement upon the award on the application under Section 14 of the Arbitration Act unless the award is registered. Section 14 enjoins that when an award of an arbitrator has been filed, the Court should give notice to the parties and thereupon the Court shall pronounce judgment upon the award and make it a rule of the Court. But in order to do so, the Court must be competent to look into the award. Section 49 of the Act enjoins that the award cannot be received as evidence of any transaction affecting immovable property or conferring power to adopt, unless it is registered. In that view of the matter, no judgment upon the award could have been pronounced upon the unregistered award."
53. It was further held that:
"Therefore, in our opinion, though it may not be possible to take the point that the award is bad because it is unregistered as such it could not be taken into consideration in a proceeding under Section 30 or 33 of the Arbitration Act, but can be taken in the proceedings under Section 14 of the Arbitration Act when the award is sought to be filed in the Court and the Court is called upon to pass a decree in accordance with the award. As the Court, as mentioned hereinbefore could not look into the award, there is no question of the Court passing a decree in accordance with award and that point can also be taken when the award is sought to be enforced as the rule of the Court."
54. Reference in this connection may also be made to Dewaram Tiwary v. Hari Narayan Tiwary, reported in AIR 1948 Pat 320 and V. Sanjee Vamma v. Y. Purnamma, reported in AIR 1984 AP 28.
55. It is, therefore, clear that even an unregistered award is not a waste paper.
56. Next question which arises for consideration in this case is as to whether an award is admissible in evidence for collateral purpose.
Section 49 of the Registration Act reads as follows:--
"49. Effect of non-registration of documents required to0 be registered. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power.
Unless it has been registered :
Provided that an unregistered document affecting immoveable property and required by Act or the Transfer of Property Act, 1882 (4 of 1882) to be registered may be received as evidence of a contract in a suit for specific performance under Chap II of the Specific Relief Act, (1 of 1877) or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be affected by registered instrument.
57. It is true as contended by Mr. N. K. Prasad that a Panchayat has no statutory function to perform so far adjudication of disputes and differences between the parties is concerned in terms of the provisions of the Bihar Panchayat Raj Act, 1947.
58. Further in the instant case, while making the Panchanama award dated 27-5-58, the Panchayat was not exercising any statutory function under the Bihar Panchayat Raj Act. From a plain reading of the statements of reference, it is evident that both the parties jointly prayed that their properties may be partitioned by Panchayat.
59. In these circumstances, in my opinion, it cannot be said that the Panchanama award was absolutely void ab initio as the Panchayat has no jurisdiction to partition the properties in terms of the request made by the parties.
60. In the instant case, the learned trial Court has held that the award was fully acted upon by the parties. Even in the deed of sale, executed by him, the plaintiff has also referred to the said award as a source of his title.
61. Similarly defendant No. 4 had also executed the deed of sale in favour of defendant No. 1, which is the subject-matter of the suit. Ext. H, contains the stipulation to the effect that the plaintiff had in fact incurred a sum of Rs. 806/- and that the plaintiff was entitled to Rs. 806/ for digging of the lands as also for repayment of the ancestral debts. The claim of the plaintiff was found to be correct and it was decided that defendant No. 4 shall pay half of the said amount, namely Rs. 403/-and unless the said amount is paid, he would be entitled to usufruct of the said properties.
62. As noticed hereinbefore, Mr. Prasad submitted that the award was a conditional one. However, from the evidence on record, including Ext. E, which is a receipt for a sum of Rs. 150/- it appears probable that defendant No. 4 had paid the said amount. Thus taking into consideration all the aspects of the matter, Ext. H was not admissible in evidence for the purpose of considering as to which property had been allotted to the parties on partition, but the same is admissible in evidence for considering the past event.
63. Re : Question (2):
It is true that admission does not create any title nor there can be any estoppel against the status. As noticed hereinbefore, the submission of Mr. N. K. Prasad is that despite admission of the share of the defendant No. 4 by the plaintiff, the same does not constitute estoppel.
In Kalidas v. State of Bombay, reported in ATR 1955 SC 62, upon which strong reliance has been placed by Mr. N. K. Prasad, it was held that when the facts are fully set out and admitted a party's opinion about the legal effect of those facts is of no consequence in construing the section. No estoppel arises by reason of the admission of the party as to such effect. Such is obviously not the case here. In this case, the construction of any provision of law and/or legal effect thereof is not in question nor there is admission of the plaintiff with regard to the construction of any provision.
64. In A. C. Jose v. Sivan Pillai, reported in AIR 1984 SC 921 the Supreme Court was considering the case relating to conducting of election. In that circumstance, it was held that despite the appellants agreeing to and participating in the meeting which was held before the introduction of voting machine, recourse thereto could be challenged by the appellant subsequently, as such the process was not permissible or authorised by law and thus the appellant before the Supreme Court was held to be not estopped from challenging the provisions of the statutes.
65. However, in the instant cas, as Panchanama award Ext. H is not admissible in evidence for the purpose of ascertaining the properties which were partitioned between the parties, as thereby partition of immovable properties had been effected, but by reason of the subsequent conduct, particularly the admission made by the plaintiff in his sale deed Ext. 3 series, the plaintiff would be bound by the stipulations that an award was made and published.
It would, thus, not be permissible for the plaintiff to challenge the validity of the said award on any ground except with regard to admissibility thereof owing to non-registration of the said award. Reference in this connection to Superintendent Engineer, National Highways, Salem, reported in 1988 SC 2045. The same would constitute estoppel by deed. Reference in this connection may be made to Habibullah v. M. T. Ganesh Dai reported in AIR 1934 Allahabad 447 and in Rajendra Ram v. Devendra Dass reported in AIR 1973 SC 268, Harihar Prasad v. Deo Narain Prasad reported in AIR 1956 SC 305 and in Greev v. Kettle, Re-Pareit Trust & Finance Co. Ltd. reported in 1937 Vol. IV All England Law Reporters 396.
66. In Chaitanya Charan v. Manik Chandra reported in AIR 1972 Calcutta 520 (F.B.), it has been held as follows at page 524 :
"The decision in Shiromani Prasad's case (1954) 58 Cal WN 612 rests mainly on the ground that under Section 26-C and Rule 25 of the Rules framed under the Bengal Tenancy Act there is no indication as to who will serve the notice upon the co-sharer tenants. It is true that there is no specific indication, but at the same time it can not be lost sight of that the purchaser is vitally interested in getting the document of transfer registered and he will take all steps in that regard. It can, therefore, be reasonably presumed that the notice under Section 26-C is served at the instance of the purchaser. We respectfully agree with the view expressed in the decisions in Malati Bala's case and Sankaracharja's case referred to above and also the decision expressing similar view. In the instant case, the notice under Section 26-C which was served upon the petitioner contains a statement that the holding is an occupancy holding. No explanation has been given by the opposite parties why such a statement has been made and there is no evidence that the petitioner was aware of the true nature of the tenancy. The petitioner relying upon the statement in the notice made the application and made the requisite deposit under Section 26-F. In our view, therefore, the opposite parties are estopped from challenging the nature of the tenancy of the petitioner."
67. In Narayanaru v. Kanniammal reported in AIR 1973 Madras 471, it has been held as follows at page 471 :--
"As far as the first part is concerned. I am clearly of the opinion that the contention of the appellant is absolutely untenable. It is admitted before me that Ex. A-2 refers to the land only as jenmom land. If Ex. A-2 has referred to the land as jenmom land and the parties to Ex. A-2 dealt with the property on that basis with all the legal indents attached to it, it is certainly not open to the appellant subsequently to turn round and contend that the suit land is not jenmom land. A Bench of the Travancore High Court in Madan Padmanabha v. Krishna Narayanaru (1929) 19 Trav LJ 760 while considering a similar question pointed out thus :--
"If there is evidence to show that the property was at the time represented to be jenmom and the transaction entered into on that basis, it is doubtful whether the plaintiff can resile from that position and contend that the legal incidents of the Jenmom property are not claimable with respect to the mortgage holding."
After referring to the above observation of the Travancore High Court I have held in my judgment dated 1-9-1972 in S. A. No. 1000 of 1969 (Mad) -- Ganapatia Pillal v. Karuthudayan Nadar that when the parties had treated the property as jenmom property with all the legal incidents attached thereto it was not open to them to go behind and contend that the property is not jenmom but Sreepandaravaga property. In this case, as I have already pointed out Ex. A-2 described the suit property as jenmom property though in the plaint the appellant contended that the property really was Sreepandaraga property. Having regard to the decision of the Travancore High Court referred to and my decision in S. A. 1000 of 1969 (Mad) I hold that in view of the description of the suit property as jenmom land in Ex. A-2 it was not open to the appellant to put forward the contention that the suit land is not a jenmom land but Sreepandavaraga land."
68. Thus although the award is not admissible in evidence nor can it be looked into for the purpose of considering as to which property had been allotted to the plaintiff or the defendant No. 4, the subsequent conduct of the plaintiff is admissible for the purpose that the parties acted upon the said award and have been in possession of the properties as having exclusive title therein in terms of the said award. Further the recitals in the deed are also admissible in evidence. Reference in this connection may be made to Khudi Ram Ojha v. Amodebala Debi reported in AIR 1948 Patna 476 and Jaigobind v. Brij Bihari reported in AIR 1966 Patna 168.
69. Re Question 3 :
As noticed hereinbefore, both the parties had proceeded on the basis that they had half and half share.
70. In the instant case, after the award Ext. H was made, the properties in dispute came to be recorded in the name of defendant No. 1 in register II.
71. Ext. A shows that the rent was being paid also by defendant No. 1 which has been proved by D. W. 3.
72. From Ext. B, it is evident that the plaintiff in his sale deed accepted that there had been an award. D. Ws. 5, 6 and 7 who are the purchasers from the plaintiffs proved separate possession of the parties and their respective transferees. Ext. B/2 is the deed of sale dated 28-6-61 whereby the defendant No. 4 transferred his right, title and interest to defendant No. 1.
73. Thus, it is evident that after the award was made on 27-5-58, defendant No. 4 came in exclusive possession of the properties in suit and other properties in his own right. In vi, of the sale deed executed by the plaintiff himself and the sale deed executed by defendant No. 4, in favour of defendant No. 1, it is absolutely clear that defendant No. 1 came in possession of the properties which are the subject matter of the suit in the year 1959, and had been continuing in possession thereof. The plaintiff instituted the aforementioned suit in the year 1976.
74. As defendant No. 4 came in possession of the properties by reason of an instrument which was compulsorily registrable in my opinion, his possession from the date of the award would be deemed to be adverse, as against the plaintiff and thus exclusive possession of defendant No. 4 in respect of the properties in the suit would constitute adverse possession. Reference in this connection may be made to Madan Lal v. Union of India reported in AIR 1959 Patna 165, and Sri Bhagwan Singh v. Rambasi Kuer reported in AIR 1957 Patna 157.
75. Mr. N. K. Prasad, contended that in view of the fact that there had been a proceeding under Section 145, Cr. P.C., in the year 1968, defendant No. 1 had not perfected his title by prescription. In my opinion, the submission has no substance inasmuch as pendency of a proceeding does not stop running of period of limitation. There is nothing to show that at any point of time defendant No. 4 or for that purpose defendant No. I was dispossessed from the properties in question. Mere laying of a claim of possession by itself does not stop the defendants from continuing in possession of the lands in suit in their own right.
76. Mr. Prasad further submitted that as the aforementioned Ext. H was not admissible in evidence, the same is also not admissible for the purpose of showing that defendant No. 4 and thereafter defendant No. 2 came in possession thereof. The learned counsel, on the basis of a decision in Dip Narain Rai v. Pundeo Rai reported in AIR 1947 Pat 99, submitted that even if defendant No. 4 had come in possession in or over the suit properties and other properties awarded in his share by the Panches, his possession being a possession of a co-owner would not constitute adverse possession or ouster. In my opinion, there is no substance in the contention raised by Sri Prasad.
77. As admitted by the parties, the disputes and difference with regard to the possession of joint property were referred to arbitration and the panches gave an award, which was accepted by the parties thereto as they put their signatures in token of acceptance of the award.
78. As admitted the parties started possession the properties in accordance with the award, which would also be evident from the fact that even the plaintiff had sold away the properties allotted in his share, as exclusive owner thereof and as held hereinbefore, the plaintiff is thus estopped and precluded from putting forth a plea contrary to his own statements in the aforementioned sale deeds.
79. As the award submitted by the Panches is a transaction and has been acted upon by the parties, the exclusive possession by either the plaintiff or defendant No. 4 in or over the suit properties allotted in their share being in their capacity as an exclusive owner thereof, the limitation began to run from the date of their coming in possession of the said property, which had fortified perfect and indefeasible title as the parties have been in open and continuous possession in exercise of their own right to the knowledge of each other.
80. Further the defendant No. 4 had also sold the suit properties in favour of defendant No. 1 in his capacity as an absolute owner. For the purpose of perfecting the title by adverse possession, the possession of defendant No. 1 would be tagged with that of defendant No. 4 and as they had been in possession of the properties in question for a period of more than 12 years, they must be held to have acquired title in relation thereto.
81. In this view of the matter, it must be held that as the defendant No. 4 and since the date of his purchase (Ext. B/2), the defendant No. 1 had been continuing in possession of the suit properties, they have acquired title by prescription.
82. In the result, there is no merit in this appeal, which is dismissed. But in the facts and circumstances of this case, there will be no order as to costs.