Punjab-Haryana High Court
Inder Singh (Since Deceased vs Mahla Singh (Since Deceased on 2 December, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.70 of 1985 (O&M)
Date of decision:02.12.2013
Inder Singh (since deceased, through his LRs).
... Appellant
Versus
Mahla Singh (since deceased, through his LRs) and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Dhirinder Chopra, Advocate,
for the appellant.
Mr. Prateek Mahajan, Advocate,
Mr. B.R. Mahajan, Advocate, and
Ms. Gaganpreet Kaur, Advocate,
for the respondents.
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1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
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K.Kannan, J. (Oral)
1. The following substantial questions of law arise for consideration in the second appeal:-
i) Whether the plaintiffs, whose plea of oral partition was rejected by the courts below, could succeed to the other brother's share (Rattan Singh) on the ground of adverse possession without proof of ouster? Kumar Sanjeev 2013.12.06 10:53 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.70 of 1985 (O&M) -2-
ii) Whether the entries in mutation brought about in the name of the defendant's vendors themselves not sufficient to acknowledge his predecessor's subsisting title over the property and constitute discontinuity of possession?
2. The suit by the plaintiffs for declaration that they had become the owners of half share in about 200 kanals 3 marlas of land situate in various khasra numbers was sought by the plaintiffs acknowledging that the half share belonged to Rattan Singh, who had been a spendthrift, a person of loose morals and known for dissipating his holdings. Rattan Singh's brother was Kirpal Singh and the plaintiffs are the descendants of Kirpal Singh. The plaintiffs would contend that during the lifetime of Kirpal Singh and Rattan Singh, they had made oral partition between themselves in the year 1971 BK and a memorandum had been reduced in writing. The revenue entries however stood in the joint names and Rattan Singh's widow Maan Kaur, who had remained away from the village and not known to be living, appeared to have sold the property to the 1st defendant on 04.02.1959. The plaintiffs would contend that it was a manipulation at the instance of the 1st defendant and the sale was not true. On the basis of such a sale, the 1st defendant got a mutation entered in his favour to which the plaintiffs lodged a protest in the year 1961, but the objections of the plaintiffs were rejected and the Kumar Sanjeev 2013.12.06 10:53 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.70 of 1985 (O&M) -3- 1st defendant's name had been entered as an owner of half share. However, the properties never went out of the hands of the plaintiffs and they continued in possession of the property adversely. The plaintiffs would qualify their character of possession as in "open continuous and adverse possession of the suit land" since their blunt denial of defendant No.1 as a co-sharer in the mutation proceedings. This adverse possession, according to the plaintiffs, ought to reckon from the date of denial of title in mutation proceedings and in revision and the half share of Rattan Singh must, therefore, be taken as having ceded in favour of the plaintiffs by adverse possession.
3. The suit came to be filed at a time when the 1st defendant resorted to an action under the Punjab Land Revenue Act for accounting for profits and had also initiated action for partition of the half share to which he had obtained right by a purchase from Maan Kaur. The suit was resisted by the 1st defendant on a plea that there had been no partition in the manner urged by the plaintiffs and that the sale by Maan Kaur as a widow of Rattan Singh was valid and he had actually initiated action for recovery of rent only because the plaintiffs, who had undertaken to give lease, were not paying the lease and they were, therefore, liable to account for mesne profits.
4. It appears that a claim for mesne profits was dismissed, for, the revenue authorities had no power to grant such a relief. The trial Court found that Maan Kaur's status as the widow of Rattan Kumar Sanjeev 2013.12.06 10:53 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.70 of 1985 (O&M) -4- Singh was not denied and it also found that the sale executed by Maan Kaur in favour of 1st defendant had been established. It ruled that there was no partition but found that the denial by the plaintiffs of the 1st defendant's right as a purchaser was manifest in the year 1961 itself in the mutation proceedings and since the cultivation was admittedly in the hands of the plaintiffs, the possession must be taken to be adverse. The lower appellate Court confirmed the said decision holding the plaintiffs' possession being an admitted fact, it was adverse to the defendant whose right had been denied from the year 1961 itself till the year 1980.
5. The learned counsel for the appellant would contend that as plaintiffs, they were not entitled to seek for a declaration on the basis of adverse possession and that this could be done only by way of defence. It is the further contention of the appellant that he was a purchaser from the widow of the co-owner Rattan Singh and, therefore, he had stepped into her shoes as a co-owner and the plaintiffs could not have secured a right by adverse possession without proving ouster. The 1st defendant had at all times asserted his right to the property and that right cannot be defeated by the plaintiff's action for declaration of his half share. The learned counsel for the respondents relies on a judgment rendered by the Supreme Court in Gurudwara Sahib Versus Gram Panchayat Village Sirthala and another-2013(4) RCR (Civil) 703 that a person Kumar Sanjeev 2013.12.06 10:53 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.70 of 1985 (O&M) -5- in adverse possession cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings had been filed against the appellant and the appellant is arrayed as defendant could be use this adverse possession as a shield or a defence. I would take this to be but one observation of the Supreme Court, for there are any number of decisions of the Supreme Court including Des Raj Versus Bhagat Ram-(2007) 9 SCC 641 and of the Privy Council in Secretary of State Versus Debendra Lal Khan-AIR 1934 PC 23 where the plaintiff's claim to title on the basis of adverse possession has also been upheld. This Court itself had an occasion to deal with situation of whether a party as plaintiff could sue for adverse possession in Vijay Bhawar and others Versus Ajaib Singh in RSA No.2561 of 1985, decided on 11.09.2013 and holding that it was possible, referred the matter to a larger Bench in view of the certain decisions of this Court holding a contrary view. I will not, therefore, again take up this issue as concluded though I ought not to be understood as casting any view against the judgment of the Supreme Court in Gurudwara Sahib (supra).
6. To me the issue will have to reside with how the plaintiffs have drafted the suit and how they have asserted hostile title. The suit proceeds on an admitted position that the property in half share belonged to Rattan Singh. They have not denied the Kumar Sanjeev 2013.12.06 10:53 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.70 of 1985 (O&M) -6- status of Maan Kaur as his wife. Their source of title is not by succession but it is contended that they have obtained the right by adverse possession and denying the sale deed in favour of the defendant as having been brought about by impersonation. The trial Court has observed, which has not been set aside in appeal that the sale deed was true and it was executed by Maan Kaur as the person in whose favour the property devolved on the death of her husband. She lived beyond 1956 till after the advent of Hindu Succession Act and seen by the fact that the sale by her itself has come about only on 04.02.1959, the right that she had as a co-owner therefore was bound to be taken as having enlarged under Section 14(1) of the Hindu Succession Act. The property that was sold to the defendant must therefore be taken only as a property in joint possession of the purchaser. In this case, it must be noted that the plaintiff was pleading for an oral partition as having taken place and that the half share that belonged to Rattan Singh which was specific was enjoyed by them in hostile assertion of right to the purchaser. This contention has been rejected by the trial Court in its finding that there was no partition and indeed the jamabandis had entered the names of both the brothers even subsequent to the date of alleged partition.
7. If the property had therefore remained jointly between two brothers, the purchaser from the widow from one of the brothers Kumar Sanjeev 2013.12.06 10:53 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.70 of 1985 (O&M) -7- would partake the property in his status as a co-owner only. Instances in States where partition is possible even without reference to revenue authorities, the preferred mode would at all times be to compel a stranger purchaser to apply for a general partition and to allot the share of the alienating co-owner to the share of the purchaser. In Punjab with restrictions of partition by private transactions and compelling parties to resort to partition through revenue authorities, the joint possession by a purchaser is the norm till the date when anyone of the co-owners forces a partition by resort to partition proceedings under the Punjab Land Revenue Act. I would, therefore, hold that a purchaser from Maan Kaur when he had applied for mutation in his name, he was asserting for a right to joint ownership to secure a transfer of entry from his vendor to himself. If the purchaser had taken no action and the purchaser- defendant was fended off by the other co-owner in denial of his right, then it should be stated there existed an ouster of his right. A mere contest in mutation proceedings which did not go in favour of the plaintiffs cannot be taken to be a favourable point for the plaintiffs. The continuity of possession must be taken as having snapped at the time when the purchaser asserted his right to joint possession and secured an entry in his name along with the plaintiffs.
Kumar Sanjeev 2013.12.06 10:53 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.70 of 1985 (O&M) -8-
8. The courts below in my view were in error in failing to recognize that the mutation was secured in favour of the 1st defendant and the plaintiff's own objections had not been upheld. A consequence that could have been different was when the plaintiffs had successfully thwarted the mutation in favour of the defendant and asserted a positive claim to title in their own names. In this case, the defendant had secured mutation despite the objection and even if the plaintiff's own possession continued after 1961, the defendant had acted in a manner consistent with his claim to ownership by applying to the authority for partition of the property. The right to partition itself cannot be denied if the trial Court had held, and the appellate court had not modified, that the plea of oral partition could not be accepted by the courts. Adverse possession found in favour of the plaintiffs cannot be supported and I set aside the judgments of both the courts below and allow the second appeal. Counsel's fee ` 10,000/-.
(K.KANNAN) JUDGE 02.12.2013 sanjeev Kumar Sanjeev 2013.12.06 10:53 I attest to the accuracy and integrity of this document chandigarh