Punjab-Haryana High Court
Mohinder Singh And Ors. vs Shangara Singh And Anr. on 2 February, 2007
Equivalent citations: AIR2007P&H127, AIR 2007 PUNJAB AND HARYANA 127, 2007 (5) ABR (NOC) 723 (P&H), 2007 AIHC NOC 437, (2007) 4 CURCC 444, (2007) 2 PUN LR 18, (2007) 56 ALLINDCAS 863 (P&H), (2007) 2 CIVILCOURTC 760
Author: Hemant Gupta
Bench: Hemant Gupta
ORDER Hemant Gupta, J.
1. The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby suit for declaration filed by the plaintiff to the effect that he is owner in possession to the extent of 2/3rd share while the defendants are owners in possession in respect of l/3rd share of land measuring 112 Kanals 17 Marias, was decreed.
2. The plaintiff is son of Devi Chand s/o Ram Ditta s/p Wazira. Wazira had two sons i.e. Ram Ditta from whom the plaintiff is drawing his title, the other son was Moti. It is the case of the plaintiff that Moti was adopted by one Jawahar of village Barian (now in Tehsil Anandpur Sahib) about 100 years back and that since the date of adoption, Moti had severed all his links for all purposes with his natural family and became a part and parcel of his adopted father's family. The revenue record continue to reflect Moti as heir of Wazira and, therefore, plaintiff be declared owner of the suit land.
3. In the written statement filed on behalf of heirs of Moti, it was pleaded that Moti has been residing in the village and used to look after the suit and the house property. It was pleaded that if at all the plaintiff succeed in proving the alleged adoption then deceased Moti had not severed the relations or interest with his natural family as per custom prevailing in Punjab and Hoshiarpur District. It was also alleged that Ram Ditta, grandfather of the plaintiff, never objected to the right of Moti during his lifetime. Ram Ditta had been seeing, admitting and considering said Moti as an heir and co-owner of the property. Alternatively, it was also pleaded that defendants Nos. 8 to 10 have perfected their title, their long, continuous, uninterrupted and unobstructed possession and hostile as they are in possession for the last more than 70 years after the death of Wazira.
4. Though the learned trial Court dismissed the suit, a finding was returned on Issue No. 1 that Moti was adopted by Jawahar. It was so held on the basis of mutation Exhibit P-8 in respect of estate of Jawahar whose land was mutated in the name of Moti on 19-3-1991. Exhibit P-5 is Shajra Nasab which reflects Moti as adopted son of Jawahar. PW 1 Swaran Singh and PW 2 Sansar Chand, the villagers, have also deposed that they have heard from their elders that Moti was adopted by Jawahar. Thus, it was found that Moti is proved to be adopted by Jawahar. Such finding of the learned trial Court was affirmed by the learned first Appellate Court as well.
5. Learned trial Court on Issues Nos. 2 and 9 returned a finding that the estate of Wazira was inherited by Ram Ditta and Moti being the natural sons of Wazira. The learned trial Court found that in mutation, Exhibit D-5, and jamabandi for the year 1966-67, Exhibit D-7, Moti is shown as son of Wazira, therefore, it can be held that Moti has not severed his relations with his original family after his adoption. Still further, it was found that one instance given by the plaintiff to the effect that if male person is adopted, he loses his right in the property of his natural father is not sufficient to return a finding that there was a custom in Garhshankar area that the person adopted cannot succeed the property of his natural father. The said finding has been reversed by the learned first Appellate Court on the basis of Rattigan's Digest of Customary Law and the fact that PW4 Anant Ram has positively deposed that he belongs to Hoshiarpur district and Jat by caste and has been adopted. He inherited the property of his adopted father and not of natural father as per custom prevailing in the Jats of Hoshiarpur district. It was found that there is no evidence in rebuttal examined on behalf of the defendants that no such custom was prevalent in Hoshiarpur district among Jats nor there was any positive evidence to show that such custom had been abandoned. It was also found that mere sanctioning of mutation in the name of heir does not create any title in favour of such person because revenue record is prepared only for fiscal purposes for determining as to who is answerable to pay the land revenue to the government on said portion of the land. It was also found that overwhelming evidence produced on record is to the effect that Moti since the time of his adoption started residing with his adopted father at village Barian and successor-heir of Moti are also residing at village Barian and none of the said persons ever came to reside at village Mansolwal. Therefore, Ram Ditta alone succeeded to the entire property of Wazira including the land in dispute.Thus, it was found that in a suit based on title, there is no limitation. While considering the plea of defendants Nos. 13 to 15 that they are bona fide purchasers for valuable consideration, it was found that the said defendants were related to the parties and residents of the same village. Therefore, the said defendants cannot be said to be bona fide purchasers for valuable consideration.
6. A perusal of the above findings would show that it is a finding of fact based on evidence that Moti was adopted by Jawahar. In fact, in alternative, it was asserted that as per custom prevalent in Punjab and Hoshiarpur District. Moti has not severed his relations or interest with his natural family. Since the defendants have propounded custom, the onus of proof of custom was on the defendants. But the defendants have not led any evidence to prove the custom that even after adoption, the adopted son would Inherit the estate of natural father as well. In fact, evidence to the contrary has been led by the plaintiff, Therefore, the defendants cannot be said to be entitled to inherit the estate of Moti.
7. The next question which has been raised is that suit is beyond the period of limitation as mutation of inheritance of Jawahar in favour of Moti was sanctioned in the year 1891 whereas suit for declaration that Moti had severed his relations with his natural family has been filed about 100 years later. I do not find any illegality in the finding recorded by the learned first Appellate Court holding that the suit cannot be said to be beyond the period of limitation.
8. Learned Counsel for the appellants has referred to the decision of this Court in Saudagar Singh v. Harnam Kaur (deceased) now represented by L.Rs. and Ors., 1987 P.L.J. 248 to contend that starting point of limitation for a suit for declaration is from the date when cause of action first accrues. It is contended that cause of action has arisen to the plaintiff when mutation of in-' heritance was sanctioned in favour of Moti, therefore, the suit is beyond the period of limitation.
9. It is well settled that entries in the revenue record does not by title give rise to a cause of action. Reference may be made to Ibrahim v. Smt. Sharifan and Balwant Singh v. Khushal Singh and Anr. . The Division Bench in Ibrahim's case (supra) has held that entry in the revenue record by itself does not provide any cause of action. The cause of action arises only when there is any threat to the title of the suitor.
10. Keeping in view the said Judgments, it cannot be said that mere entry in the revenue record gives rise to cause of action to the plaintiff. It is also well settled that the revenue records are not documents of title. Such records are maintained for the purposes of land revenue alone. Therefore, mere entry of inheritance in favour of Moti in the revenue record will not confer title of the suit land in favour of Moti as, he has been proved to be adopted by Jawaliar in the year 1891. In the absence of proof of custom as prevalent, the heirs of Moti cannot succeed to the estate of Wazira.
11. The Judgments in Saudagar Singh's case (supra) and Gurmall Singh and Ors. v. Jit Singh and Ors. 1997 (115) P.L.R 675 are single Bench Judgments. The Division Bench decision in Ibrahim's case (supra) is not referred to in the aforesaid case. It is the case of the plaintiff that he continued to be in possession of the suit land. The learned trial Court has returned a finding that the plea of the defendants that their possession is adverse is not proved. The learned first Appellate Court has returned a categorical finding in para No. 19 of the Judgment on the basis of positive evidence of the witnesses of the plaintiff and the admission of the witnesses of the defendants that neither Moti nor his successors-in-in-terest ever entered into possession of the disputed land. It could not be pointed out that such finding is in any way incorrect. The necessary consequence to such finding is that the plaintiff would be deemed to be in possession of the suit land. Therefore, in view of the Division Bench judgment, the suit cannot be said to be barred by limitation.
12. The finding of fact recorded by the learned first Appellate Court are sought to be disputed by way of re-appreciation of evidence in second appeal. Even on appreciation of evidence and on the basis of the records produced by the appellants, I do not find any illegality or material irregularity in the findings recorded which may give rise to any substantial question of law for determination by this Court in second appeal.
13. Dismissed.