Himachal Pradesh High Court
______________________________________________________________________ vs Shri Ram Rattan on 26 October, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 336 of 2007 .
Reserved on: 01.09.2016
Date of Decision: 26.10.2016
______________________________________________________________________ Shri Pratap Singh and others .....Appellants.
Vs. Shri Ram Rattan, son of Shri Lachhmi Singh of (since deceased) through his legal representatives and others .....Respondents.
Coram: rt The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes.
For the appellants: Mr. Bhupender Gupta, Senior Advocate, with Mr. Janesh Gupta, Advocate.
For the respondents: Mr. K.D. Sood, Sr. Advocate, with Mr. Rajnish K. Lal, Advocate, for respondents No. 1 to 3.
None for respondents No. 4 to 10.
Ajay Mohan Goel, Judge :
By way of this appeal, the appellants/plaintiffs have challenged judgment passed by the Court of learned District Judge, Solan, H.P. in Civil Appeal No. 60-S/13 of 2006 dated 01.06.2007 vide which, learned appellate Court has allowed the appeal filed by the present respondents/defendants against the judgment passed by the Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 2
Court of learned Civil Judge (Senior Division), Kandaghat, District Solan, H.P. in Civil Suit No. 5-K/1 of 2002 dated 03.05.2006.
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2. Brief facts necessary for the adjudication of the present case are that the appellants/plaintiffs (hereinafter referred to as 'the plaintiffs') filed a suit for declaration and injunction against the defendants on the grounds that plaintiffs and proforma defendant No. 4 were co-owners in joint possession of half share in 8 plots of land measuring 13 bighas and of 5 biswas, comprised in Khasra Nos. 15, 23, 55, 57, 73, 81, 95 and 109, Kitas 8, entered at Khewat No. 4, Khatoni No. 5, situated in village rt Mahog, Pargna Chail, Tehsil Kandaghat, District Solan, H.P. as per Jamabandi for the year 1996-97 alongwith the defendants. As per the plaintiffs, the suit land was in joint possession and ownership of Shri Dhingia to the extent of 1/4th share, Shri Mehar Singh to the extent of 1/4th share and Shri Motia, who was owner to the extent of ½ share in the year 1966-67 Bikrami. Shri Dhingia, who was co-owner of the suit land to the extent of 1/4th share sold his share by way of a registered sale deed dated 18 Kartika, 1967 Bikrami in favour of Shri Biru, son of Shri Haria. Shri Dhingia expired after the execution of the sale deed and the factum of the sale could not be incorporated in the revenue records during the life time of Shri Dhingia. Mutation No. 6 on the basis of the said sale deed was attested on 11th Maghar, Samvat 1967 Bikrami.
Further, as per the plaintiffs, Dhingia died issueless and his estate was inherited by Shri Mehar Singh, son of Shri Shonku vide mutation No. 9 attested on 16th Jaisth, 1969 Bikrami. It was further the case of the ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 3 plaintiffs that it appeared from the records that Dhingia, who was owner only of 1/4th share in the land measuring 13 bighas and 5 biswas, i.e. the .
suit land appeared to have executed the deed of sale by mistake with respect to the entire suit land. According to the plaintiffs, Dhingia could not have sold the land in its entirety as he had no right, title or interest of any kind over the entire suit land save and except his share. It was further the case put up by the plaintiffs that from the records it appeared of that Mehar Singh, who was to inherit the estate of Shri Dhingia objected to the attestation of mutation, but revenue officer attested the same by rt exceeding his jurisdiction. As per the plaintiffs, Biru could not have purchased the land through sale deed dated 11th Maghar, Samvat 1967 Bikrami in excess of 1/4th share in the suit land. It was further the case of the plaintiffs that Motia who was co-owner in joint possession to the extent of ½ share died in the year 1968 Bikrami and his estate devolved upon his son Shri Jash Ram through mutation No. 8 attested on 16th Jaisht, 1969 Bikrami. As per the plaintiffs, though after the death of Shri Dhingia and Motia the suit land should have been shown to be owned and possessed by Shri Biru to the extent of 1/4th share, Shri Mehar Singh to the extent of 1/4th share and Shri Jash Ram to the extent of ½ share, but the revenue entries did not depict the correct position.
According to the plaintiffs, on the basis of the said wrong revenue entries, the defendants were trying to derive undue advantage. It was further the case of the plaintiffs that after the death of Shri Biru, his estate devolved upon Smt. Niharikhi his wife, who died issueless and her estate devolved ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 4 upon Shri Jonki, who was brother of Biru. After the death of Shri Jonki, his estate devolved upon his son Jhamtu. According to the plaintiffs, .
though the revenue entries should have reflected Jhamtu to be owner to the extent of 1/4th share, Shri Mehar Singh to the extent of 1/4th share and Jash Ram to the extent of ½ share, yet the revenue record rather than depicting the factual position, reflected wrong position and the entries so recorded which were factually incorrect did not affect the right, of title or interest of the plaintiffs or proforma respondent No. 4 and their predecessors adversely. According to the plaintiffs, during his life time, rt Mehar Singh adopted Jagat Ram as his son and after the death of Mehar Singh, Jagat Ram acquired right, title and interest to the extent of 1/4th share qua the estate of Mehar Singh. Jagat Ram was succeeded by his widow Subda, who executed a registered sale deed dated 21st May, 1954 in favour of Shri Bijnu, son of Shri Totu and after the execution of gift deed, revenue records should have depicted Jagat Ram as owner to the extent of 1/4th share, Shri Bijnu to the extent of 1/4th share and Shri Jash Ram to the extent of ½ share, but the entries continued to be recorded contrary to the factual position. Further as per the plaintiffs, Bijnu sold his share to the defendants through a registered sale deed dated 1st October, 1962 and after the death of Jagat Ram, his estate devolved upon his widow Smt. Gauri, his son Shri Siri Ram and daughters Smt. Kaushalya, Smt. Satya and Smt. Bimla. Siri Ram was succeeded by his son Shri Joginder Singh and Shri Sat Pal and daughters Smt. Sumitra and Smt. Indira Devi. After the death of Jash Ram, his ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 5 estate was succeeded by Smt. Chainu, Smt. Kaushalya and his sons Dada Nand, Brij Lal, Partap Singh and Ishwar Chand. According to the .
plaintiffs, mutation of sale which was made by Shri Dhingia in favour of Shri Biru was incorrectly attested and the same led to wrong entries in the revenue record which were contrary to the factual position. Thus, as per the plaintiffs, transfer of interest by Shri Dhingia in excess of his share was illegal, null and void. It was further contended by the plaintiffs of that defendants had started digging the suit land with an intention to raise structure over the property. The plaintiffs objected and made rt requests to defendants to desist from the same, but they did not accede to their request, hence the suit was filed by the plaintiffs.
3. The suit was contested by defendants No. 1 to 3, who in their written statement denied the claim as was set forth by the plaintiffs.
According to the defendants, the revenue entries showing plaintiffs and proforma defendants as co-owners were wrong and illegal and were not binding on the rights of defendants No. 1 to 3. As per them, since they had purchased the suit land from Shri Bijnu Ram, s/o Totu through registered sale deed dated 01.10.1962, the revenue entries to the contrary were not binding upon them. According to the defendants, even the mutation of inheritance of Smt. Kasaulaya, widow of Shri Jash Ram in favour of her son Sh. Kuldeep was wrong. It was further the case of the defendants that they exclusively possessed the suit land as owners. It was further mentioned in the written statement that Bijnu acquired ownership and possession of land on the basis of registered gift deed from ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 6 Smt. Subdha, wife of Shri Jhamtu and Jhamtu acquired ownership from his father Shri Chungi, who had become owner by succession from Smt. .
Thagi. According to the defendants, Thagi acquired ownership and exclusive possession from Shri Biru and Biru had purchased the suit land from Dhangia, predecessor-in-interest of Shri Mehar Singh, son of Shankru @ Shangu. On these bases, it was stated by the defendants that Dhangia was in exclusive possession of the entire suit land. It was further of the case of the defendants that defendants No. 1 to 3 after purchase of the suit land by way of registered sale deed dated 01.10.1962 treated rt themselves to be exclusive owners in possession of the suit land and their possession over the suit land was peaceful, continuous and hostile to the knowledge of the plaintiffs and their family members and defendants No. 1 to 3 never admitted the plaintiffs and their brother Shri Ishwar Chand to be owners nor they were allowed to participate in the profits of the property. According to the defendants, there was complete ouster of plaintiffs and Ishwar Chand from the suit land and defendants No. 1 to 3 had otherwise also become owners of the suit land by way of adverse possession, which started from 01.10.1962. On these bases, it was contended by defendants No. 1 to 3 that they were absolute owners in possession of the suit property from 01.10.1962 and were enjoying exclusive possession of the suit land to the exclusion of the plaintiffs and proforma defendants. On these bases, the defendants No. 1 to 3 denied the claim of the plaintiffs.
::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 74. Learned trial Court on the basis of the pleadings of the parties, framed the following issues:
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"1. Whether the plaintiffs and proforma defendants No. 4 to 11 are joint owners in possession of suit land to the extent of ¾ share as alleged? OPP
2. Whether the sale deed Sh. Dingia in favour of Sh. Biru beyond his share is illegal and not binding, as alleged? OPP.
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3. If Issue No. 2 is proved in favour of the plaintiff, whether the plaintiff is entitled for declaration regarding correction of revenue entries?4.
rt Whether the subsequent transfers by Sh.
OPP.
Biru are not binding, as alleged? OPP
5. Whether the possession of defendants No.
1 to 3 over the suit land has ripened into ownership by way of adverse possession, as alleged? OPD.
6. Whether the present suit is liable to be stayed in view of Section 10 C.P.C.? OPD.
7. Whether the suit is barred by limitation, as alleged? OPD.
8. Relief."
5. On the basis of the evidence led by the respective parties, learned trial Court returned the following findings against the issues so framed:
"Issue No. 1: Yes.
Issue No 2: Yes.
Issue No. 3: Yes.
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Issue No. 4: Yes.
Issue No. 5: No.
.
Issue No. 6: No.
Issue No. 7: No.
Relief: Suit of plaintiffs decreed as per operative
part of judgment.
6. Learned trial Court held that from the evidence led by the of parties both ocular as well as documentary, it was evident that Dhingia was owner to the extent of 1/4th share, Sh. Mehar Singh to the extent of rt 1/4th share and Motia was owner to the extent of ½ share. It further held that there was no jamabandi placed on record by the defendants which could prove that Dhingia was owner to the extent of 13 ½ bighas of land.
Learned trial Court further held that the sale deed which was executed by Dhingia in Samvat 1967 Bikrami, as per the revenue record available pertaining to the relevant time also reflected that Dhngia was owner of 1/4th share only. It further held that there was admission on the part of the defendants that plaintiffs were residing at village Mahog and further on the issue of complete ouster of co-sharers, the defendants themselves were not sure about the ouster of co-sharer from the suit land. Learned trial Court held that co-owner had no duty cast upon him to watch the conduct of other co-owners and to be on the look out to find out the extent of share purported to be transferred by the other co-sharer. It further held that co-sharer was entitled to assume that the permissive nature of possession had passed on to his co-owners transferee, who now ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 9 became the co-owners in place of original owner. It further held that if subsequent purchaser asserts his title over the entire land and brings it .
to the knowledge of other co-owners, only then the issue of adverse possession can be raised. Learned trial Court further held that mere fact that co-owners were seeking partition of joint property would not amount to adverse possession. It further held that it was basic law that no vendor can pass a better title than what he possesses and on these bases, it was of held by the learned trial Court that as Dhingia was having title qua 1/4th share in the suit land and was not having any right to execute sale deed rt qua entire 13 ½ bighas of land in favour of Biru, therefore, the sale pertaining to 3/4th share of the entire property was meaningless. It further held that ouster has to be expressly proved and possession of one party over the joint property cannot be treated as adverse possession until and unless there was clear cut disclaiming on the part of co-sharer in possession of right, title and interest of other co-sharer. It further held that there has to be an intention of excluding other co-sharer from possession and such intention has to be expressed by assertion or otherwise. On these bases, it was held by the learned trial Court that in the case in hand, defendants had purchased the suit land from Bijnu but there was no evidence on record to show that either Dhingia or Biru ever claimed ouster of other co-sharer and it was no where pleaded by defendants No. 1 to 3 that right from their purchase date, i.e. 01.10.1962, they asserted their title hostile as to the other co-owners whose names appeared in the revenue records. On these bases, it was ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 10 held by the learned trial Court that in absence of such assertion and overt act, it could not be said that defendants No. 1 to 3 had become .
owners of the suit land by way of adverse possession by ouster of other co-sharers. Learned trial Court declared the plaintiffs and proforma defendant No. 4 as co-owners in joint possession qua ½ share and defendants No.1 to 3 as co-owners in joint possession to the extent of 1/4th share and proforma defendants No. 5 to 11 to the extent of rest of 1/4th share in the land measuring 13 bighas and 5 biswas in village Mahog. It further held that transaction of sale and gift showing the rt devolution of interest in excess of the share of Sh. Dhingia over the suit land to be illegal, null, void and in operative over the right, title or interest over the suit property. Learned trial Court further restrained the defendants No. 1 to 3 from changing the nature of the suit land in any manner whatsoever till the same was partitioned by metes and bounds according to the shares mentioned above.
7. Feeling aggrieved by the judgment and decree so passed by the learned trial Court, defendants No. 1 to 3 filed an appeal. Learned appellate Court while accepting the appeal so filed by defendants No. 1 to 3, set aside the judgment and decree passed by the learned trial Court and dismissed the suit of the plaintiffs. It was held by the learned appellate Court that in the jamabandi of 1963-64, Dhingia had been shown in possession through mortgagee which was redeemed in 1967 B.K. and sold in the same year to Biru and there was no Jamabandi on record showing name of Biru, but upon his death, his wife's name ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 11 appeared in subsequent jamabandi Ex. PW2/B and thereafter possession had passed in succession from one hand to another. Learned appellate .
Court further held that these long entries of over 100 years had shown the vendee through his successor in exclusive possession under the successors in interest of original owners. Though evidence had been led by the plaintiffs to show that they were cultivating the land jointly, but this appeared to be far from satisfactory as it was unlikely that the land of was jointly possessed physically by the parties. Learned appellate Court further held that the suit land comprised of different khasra numbers rt and there was no evidence as to which khasra number was in possession of which party. It further held that it cannot be possible that both the parties were in joint possession of all the Khasra numbers. It further held that it was common sense that one co-sharer could mortgage the joint land only when others consented to it or when one was in exclusive possession. It further held that similarly no person would become mortgagee or purchaser of land which is in joint possession. Learned appellate Court held that the very fact that neither Biru nor his successors had applied for partition went to show that possession of the suit land was with them. It further held that had Dhingia not been in exclusive possession, there was no reason for the authorities to record his separate possession way back 100 years ago through a mortgagee and thereafter through a vendee. Learned appellate Court thus held that had the said three co-owners been in joint possession, their possession would have been recorded, which went to show that Dhingia was in exclusive ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 12 possession of the suit land and this was the reason for him to sell whole of the suit land to Biru, predecessor-in-interest of the present appellants.
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Learned appellate Court further held that there was reference of partition in the remarks column of jamabandi for the year 1966-67 Bikrmi and may be the predecessor-in-interest of the parties had effected partition of joint land and suit land having come to the share of Dhingia. It further held that otherwise Dhingia could not have had sold whole the suit land of to Biru when he had only 1/4th share in it. It further held that Mehar Singh, one of the co-owners with Dhingia after succeeding to his trial had rt never challenged during his life time the sale and had also not sought partition of the suit land. As per the learned appellate Court other co-
owner Jash Ram had also not done so, which meant that they had accepted Dhingia to be exclusive owner of the suit land. Learned appellate Court further held that other co-sharers and their successors could be assumed to be having knowledge of the exclusive possession of Biru and his successors in view of entries in the revenue records on account of various mutations of inheritance etc. attested from time to time. Learned appellate Court further held that possession of land was not a secret affair and every one is aware of it especially the persons who have any interest in it. It was thus held by the learned appellate Court that long and uninterrupted possession of Dhingia and his successors due to an invalid sale deed was certainly adverse to the true owners and they being in possession for more than 12 years continuously to the knowledge of the true owners, had become its owners by way of adverse ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 13 possession. On these bases, it was held by the learned appellate Court that even if Dhingia had only 1/4th share in the suit land, the .
predecessor of defendants No. 1 to 3 and defendants No. 1 to 3 had become owners of the suit land by way of adverse possession being in exclusive and hostile possession of the suit land to the knowledge of other co-owners and the findings recorded by the learned trial Court were thus not sustainable in law and on facts. On these basis, learned appellate of Court while accepting the appeal filed by defendants No. 1 to 3 dismissed the suit so filed by the plaintiffs by setting aside the judgment and decree rt passed by the learned trial Court.
8. Mr. Bhupender Gupta, learned Senior Counsel appearing for the appellants has argued that the findings returned by the learned appellate Court, whereby learned appellate Court set aside the well reasoned judgment and decree passed by the learned trial Court were not sustainable either on facts or law. It was argued by Mr. Gupta that it stood proved on record that share of Dhingia over the suit land was only to the extent of 1/4th and this fact was duly borne out from the records of the case. Mr. Gupta argued that the learned trial Court after carefully appreciating the evidence on record had come to the conclusion that because Dhingia was having only 1/4th share in the entire suit land, he could not have had passed title better than what he himself possessed. In other words, according to Mr. Gupta, Dhingia could not have had alienated more than what his share was in the suit land. On these bases, it was urged by Mr. Gupta that while learned trial Court had rightly come ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 14 to the conclusion that the sale deed in favour of the defendants pertaining to 13 ½ bighas of land was of no consequence, however, .
learned appellate Court committed an illegality by setting aside the said findings and that too by completely misreading and mis-construing the evidence on record. It was further argued by Mr. Gupta that keeping in view the fact that the appellants/plaintiffs were co-sharers over the suit land and their ouster from the same was not proved in accordance with of law, it could be contended by defendants No. 1 to 3 in the alternative that from the date the suit land was purchased by them, they had become rt owners in possession over the same by way of adverse possession. Mr. Gupta argued that the learned appellate Court failed to appreciate that in case a party exerts its rights over the suit land by way of adverse possession, then the said party besides proving its possession over the land in issue has to demonstrate by leading cogent evidence that said possession is; (a) open; (b) peaceful; and (c ) hostile to the knowledge of real owner. According to Mr. Gupta, it cannot be that defendants No. 1 to 3 on one hand contend that they are owners in possession over the suit land by virtue of a sale deed and at the same time they say that alternatively they have become owners over the suit land by way of adverse possession. On these bases, it was urged by Mr. Gupta that the judgment passed by the learned appellate Court vide which it dismissed the suit of the plaintiffs was perverse and was liable to be set aside.
9. Mr. K.D. Sood, learned Senior Counsel appearing for respondents No. 1 to 3 argued that there was no merit in the present ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 15 appeal and the findings returned by the learned appellate Court were correct both on facts and on law and learned appellate Court had rightly .
set aside the judgment and decree passed by the learned trial Court and had dismissed the suit of the plaintiffs. Mr. Sood argued that it stood proved on record that Dhingia had in fact parted 13 ½ bighas of suit land and said suit land ultimately vested in defendants No. 1 to 3 by virtue of a duly registered sale deed executed on 01.10.1962 and since then of defendants No. 1 to 3 were in exclusive possession over the suit land in their capacity as owners to the knowledge of everyone including the rt plaintiffs and proforma defendants. Mr. Sood further argued that since 01.10.1962, the plaintiff and proforma defendants even otherwise stood ousted from the suit land and there was no merit in the contention of the plaintiffs that Dhingia could not have sold more than his share over the suit land as Dhingia had alienated 13 ½ bighas of land long time back and the same was not objected to by the predecessor-in-interest of the plaintiffs and it was on these bases that defendants No. 1 to 3 had urged that even if it is proved that Dhingia alienated land in excess of his share, even then, keeping in view the fact that defendants No. 1 to 3 were in possession over the suit land w.e.f. 01.10.1962 and their possession over the same was open, peaceful and hostile as to the plaintiffs and proforma defendants, they had accordingly become owners of the same by way of adverse possession. It was further argued by Mr. Sood that the conclusions arrived at by the learned trial Court that as per the revenue entries, the plaintiffs and proforma defendants continued to be reflected ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 16 as owners of the suit land and were co-owners in possession of the suit land were totally contrary to the spot and revenue records in which .
exclusive possession of vendees had been recorded. According to Mr. Sood, learned appellate Court had after correct appreciation of the material on record rightly set aside the judgment and decree passed by the learned trial Court and the same did not warrant any interference.
On these bases, it was argued by Mr. Sood that there was no merit in the of appeal and the same be dismissed.
10. I have heard the learned counsel for the parties and also rt gone through the records as well as the judgments passed by both the Courts below.
11. This appeal was admitted on 10.03.2008 on the following substantial questions of law:
"1. When the defendants-respondents did not produce the Sale Deed allegedly executed by Shri Dhingia in favour of Shri Biru, the predecessor-in-
interest of defendants-respondents, are not the findings of Lower Appellate Court that defendants-respondents have become owners of the suit land by adverse possession on the basis of such invalid sale?
2. When Shri Dhingia was admittedly owner of ¼ share in the land in dispute, has not the Lower Appelate Court acted in erroneous and perverse manner in raising inferences of consent by other co-owners acknowledging such sale of their shares, when no registered document evidencing such fact was produced in evidence by defendants?::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 17
3. Has not the Lower Appellate Court committed grave error of law and jurisdiction in ignoring settled proposition of law that possession of one co-
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owner is possession of all and unless specific plea of ouster is made and substantiated by specific and cogent evidence, the co-owners in exclusive possession cannot acquire title by prescription merely by afflux of time?"
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12. Records demonstrate that the case which was set up by the plaintiffs was that Dhingia being owner in possession of 1/4th share qua rt the suit land could not have passed on more land to his successors-in-
interest in excess of what his share in the suit land was. The factum of his being owner in possession of 1/4th share in the suit land and his being capable of passing of 1/4th share over the suit land in favour of his successors-in-interest is not disputed even by the plaintiffs. Defendants No. 1 to 3 had come in possession of the suit property having purchased the same by way of sale deed dated 01.10.1962 from Bijnu. The sale deed is on record as Ex.-P-Z (12). As per this sale deed, Bijnu sold the land vide sale deed dated 01.10.1962 in favour of Ram Ratan, Rikhi Ram and Balak Ram. As per the said sale deed, Bijnu sold 13.5 bighas of land in favour of defendants No. 1 to 3. As per the plaintiffs, as Bijnu is one of the successors-in-interest of Dhingia, therefore, it has to be seen as to how and how much property actually devolved upon Bijnu. However, according to defendants No. 1 to 3, Mehar Singh did not succeed the interest of Dhingia qua suit land and the same was transferred by ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 18 Dhingia during life time to Biru and it appeared that Dhingia owned some other land in village Mahog and village Damdar in addition to what .
he sold to Biru, which might be in possession of other co-owners and in fact Dhingia sold entire Khata qua suit land to Biru, which thereafter was exclusively possessed by him. According to them, as Dhingia was in exclusive possession of suit land being owner, he could sell the entire Khata to Biru and exclusive possession thereof was given to Biru.
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13. In Ex. PW2/A, which is Hindi translation of Ex.-PA, i.e. copy of jamabandi for the year 1966-67 Bikrami, Mauza Mahog, Tehsil and rt District Sirmaur, Dhingia is reflected in the column of ownership as co-
owner alongwith Mehar Singh and Motia. Whereas the share of Dhingia and Mehar Singh is reflected therein as "Charam" i.e. 1/4th, the share of Motia in the same is reflected as "Nisaf", i.e. ½. One thing which is evident from the said jamabandi is that Dhingia was co-sharer with regard to the suit land measuring 13 ½ bighas and his share in the same was to the extent of 1/4th. As per the case set up by defendants No. 1 to 3 in the written statement, Dhingia sold the land to Biru, Biru was succeeded by Smt. Thagi, Smt. Thagi was succeeded by Shri Chunghi, Shri Chunghi was succeeded by Jhamtu and Jhamtu was succeeded by his wife Subdha. Subdha by way of registered gift deed bequeathed the land to Bijnu and Bijnu sold the suit land to defendants No. 1 to 3.
14. The plea of adverse possession taken in the written statement as it finds mention in para-1 of the same is in the following words:
::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 19"1..........In fact Shri Dhangia son of Shri Kapuria was in exclusive possession of the entire land detailed in the para. Even in the year .
Samvat 1965 and right from the time of Shri Dhangia the property in question remained in exclusive possession of aforesaid person. The other co-owners, illegally shown in the revenue record never remained in possession of the land right from the time of Shri Motia, predecessor in interest of of plaintiffs and their brothers, mother and Shri Ishwar Chand defendant No. 4 and replying defendants after purchase of the land through rt registered sale deed dated 01.10.1962 treated themselves to be exclusive owner in possession and their possession is peaceful, continuous and hostile to the knowledge of the plaintiffs and their family members and replying defendant never admitted the plaintiffs, their brother Shri Ishwar Chand to be owner nor they were allowed to participate in the profits of the property and there is complete ouster of the plaintiffs, Shri Ishwar Chand and their family members from the time of Shri Dhangia aforesaid and the adverse possession of the defendants which started on 01.10.1962 from the purchase of the land and possession, which is continuous, have ripened into ownership and thus the replying defendants are owner in possession of the suit land."
15. No revenue record has been produced by defendants No. 1 to 3 to substantiate their contention that the entire suit land measuring ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 20 13.5 bighas was either exclusively owned and possessed by Dhinga or was exclusively possessed by him to the exclusion of other co-sharers.
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Keeping in view this fact that there is no material on record to demonstrate that the suit land was exclusively owned and possessed by Dhingia, the findings returned by the learned trial Court to the extent that Dhingia could not have parted with more land than what he owned were correct findings. A perusal of the judgment passed by the learned of appellate Court in general and para-8 in particular of the same demonstrates that the line of arguments of defendants No. 1 to 3 who rt were appellants before the learned appellate Court was that though Dhingia had 1/4th share in the suit land, however, Biru, the vendee was put in possession of whole of the land of Dhingia and the possession of Biru in respect of ¾ share became adverse to other co-sharers the moment he came to possess it. Incidentally, the finding to this effect returned by learned trial Court that Dhingia had 1/4th share in the suit land has not been interfered with by the learned appellate Court and in its conclusions even the learned appellate Court has held that even if Dhingia had only 1/4th share in the suit land, the predecessors of defendants No. 1 to 3 have become owners of the suit land by way of adverse possession. Therefore, the factum of Dhingia being owner of only 1/4th share in the suit land has attained finality. The findings returned to this effect by the learned first appellate Court have not been assailed by defendants No. 1 to 3. In other words, they have accepted the findings returned by the learned appellate Court that though Dhingia was owner ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 21 of the suit land only to the extent of 1/4th share, however, the predecessors-in-interest of defendants No. 1 to 3 had become owners of .
3/4th share of the suit land by way of adverse possession.
16. In this background, the issue which now remains to be adjudicated is whether the findings returned by learned appellate Court to the effect that the predecessors-in-interest of defendants No. 1 to 3 had become owners-in-possession of the entire suit land by way of of adverse possession are sustainable on the basis of material produced on record by the parties or not?
17. rt The Hon'ble Supreme Court in P. Lakshmi Reddy Vs. L. Lakshmi Reddy AIR 1957 SC 314 has held that in order to establish adverse possession of one co-heir as against another, it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. The Hon'ble Supreme Court has held that ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse should be made out. It further held that possession of one co-heir is considered in law as possession of all the co-
heirs. It further held that when one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. A co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heir' title. The Hon'ble Supreme Court further held that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 22 enjoyment by one of them to the knowledge of the other so as to constitute ouster. It further held that burden of making out ouster is on .
the person claiming to displace the lawful title of a co-heir by his adverse possession. Therefore, it is evident that assertion of hostile title amongst co-owners must be to the knowledge of the plaintiffs and this is exactly the distinction between the case of adverse possession between co-
owners and adverse possession between strangers.
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18. In MD. Mohammad Ali (dead) by LRs. Vs. Jagadish Kalita and others, 2004 (1) SCC 271, the Hon'ble Supreme Court while dealing rt with a case where a co-sharer in exclusive possession set up the plea of adverse possession held that long and continuous possession by itself, would not constitute adverse possession and even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. It further held that a co-sharer becomes a constructive trustee of other co-sharer and the right of the appellant and/or his predecessors-in-interest would thus be deemed to be protected by the trustees.
19. A three Judges Bench of the Hon'ble Supreme Court in Mohammad Baqar and others Vs. Naim-un-Nisa Bibi and others, AIR 1956 SC 548 has held that as under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession and exclusion and ouster following thereon for the statutory period.
::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 2320. Learned appellate Court while returning the findings that the successors-in-interest of Dhingia had become owners in possession of .
the entire suit land to the exclusion of other co-owners held that there were long entries over 100 years showing vendee through his successor in exclusive possession under the successors-in-interest of the original owners and that it was unlikely that the land was jointly possessed physically by the parties. It further held that the suit land comprised of of different khasra numbers and there was no evidence which of khasra numbers were in possession of which particular party. On these bases, it rt held that it could be possible that both the parties were in joint possession of all Khasra numbers and if this be so, then how were they cultivating the land and appropriating the produce. Learned appellate Court further held that had Dhingia not been in exclusive possession, there was no reason for the authorities to record his separate possession for over 100 years and had three of the co-owners been in joint possession, then their possession would have been recorded as such. On these bases, it was held by the learned appellate Court that Dhingia was in exclusive possession of the suit land and for this reason, he sold the entire suit land to Biru, predecessor-in-interest of present appellants. It was further held by learned appellate Court that Mehar Singh, one of the co-owners with Dhingia never challenged during his life time the sale and also did not try to seek partition of suit land. It further held that other co-owner Jash Ram also had not done so, meaning thereby he accepted Dhingia to be exclusive owner of the suit land. It further held that other ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 24 co-sharers and their successors can also be assumed having knowledge of exclusive possession of Biru and his successors in view of such entries .
in the revenue record. On these bases, it concluded that long and uninterrupted possession of Dhingia and his successors due to an invalid sale deed was certainly adverse to the true owners and they being in possession for more than 12 years continuously to the knowledge of true owners had become its owners by way of adverse possession.
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21. In my considered view, the findings so returned by the learned appellate Court are not sustainable either on facts or on law.
rt While coming to the conclusions that defendants No. 1 to 3 have become owners of the entire suit land by way of adverse possession, learned appellate Court concluded that Dhingia had gained possession of the entire suit land to the exclusion of other co-sharers and his possession as such qua other co-sharers had ripened into adverse possession. I am afraid the findings so returned by the learned appellate Court are not based on records but are based on mere conjectures and surmises. There is no evidence to substantiate the findings returned by the learned appellate Court to the effect that other co-sharers had accepted the exclusive possession of Dhingia to their express ouster qua the entire suit land. There is no material to decipher that Dhingia denied the right of other co-sharers to their knowledge. There is no evidence that Dhingia asserted his hostile title coupled with exclusive possession and enjoyment vis-à-vis the other co-sharers to their express knowledge. The ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 25 findings so returned by learned appellate Court are based on assumptions.
.
22. It is well settled law that the first appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full, fair and independent consideration of the evidence at the appellate stage and anything less than this is unjust to him. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court and first of appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on question of fact and law.
rt It is settled law that while reversing a finding of fact, the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding.
This would satisfy the Court hearing a further appeal that the first appellate court had discharged the duty expected of it. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues involved in the case alongwith the contentions put forth and pressed by the parties for decision by the appellate Court. In the present case, while setting aside the findings returned by the learned trial Court, the appellate Court has not based its findings on evidence on record, but has justified its findings on assumptions.
23. Incidentally, a perusal of the cross-examination of DW-1 Rikhi Ram demonstrates that he has admitted therein that the plaintiffs were residing where suit property was situated. He has also admitted ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 26 that no partition of the suit land has taken place. In fact a minute perusal of the written statement filed by defendants No. 1 to 3 and the .
affidavit filed by DW-1 Rikhi Ram which is on record as Ex. D-1 also demonstrates that it is not in so many words that it has been stated by the defendants that Dhingia was owner of the entire suit land. According to them, the entire suit land was in fact in possession of Dhingia, but this contention of their's is belied from the documents.
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24. There is one more important fact which learned appellate Court did not appreciate while relying upon entries in favour of the rt successors-in-interest of Dhingia to the effect that the entire suit land was in their possession, which fact is that how these entries were initially recorded in the revenue records. As I have already mentioned above, there is no evidence on record to substantiate that Dhingia was either owner of the entire suit property or was in possession of the entire property. Therefore, subsequent entries to this effect in favour of his successors-in-interest are non est as defendants No. 1 to 3 have not been able to substantiate from records as to how the entire suit land came to be recorded in ownership and possession or in possession of the successors-in-interest of Dhingia when Dhingia was neither owner-in-
possession of the entire property nor was he in possession of the entire property.
25. The contention of the learned counsel for the respondents that presumption of truth is attached with the latter revenue entries is a rebuttable presumption because if the genesis of the entries so made in ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 27 the revenue records is not substantiated and is doubtful, then the presumptions so attached with the revenue records stands rebutted.
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26. The version of defendants No. 1 to 3 of complete ouster of other co-sharers of Dhingia is not substantiated from the records. It is settled law that he who acquires title from a co-owner or a co-sharer enters into the foot steps of co-owner does not acquires a title better than that of co-owner/co-sharer. The factum of one of the co-sharer selling a of portion of joint property would not amount to adverse possession and as Dhingia was having no right, title or interest over 3/4th portion of the rt suit land, he had no right in law to alienate the same in any manner whatsoever. Once the successors-in-interest of Dhingia entered into his foot steps, then they acquired the status of co-sharer and their possession over the suit property was on behalf of all the co-sharers. As far as defendants No. 1 to 3 are concerned they had purchased the suit land vide sale deed dated 01.10.1962. There is no material on record from which it can be inferred that from 01.10.1962, they asserted their title hostile to the other co-owners, whose names admittedly were existing in the revenue records. There is no material on record to substantiate that defendants No. 1 to 3 after they came in possession of the suit land became owners of the same by way of adverse possession by ouster of other co-sharers. In these circumstances, learned trial Court had rightly held plaintiffs and proforma defendant No. 4 as co-owners in joint possession qua ½ share and defendants No. 1 to 3 as co-owners in joint possession to the extent of 1/4th share and proforma defendants ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP 28 No. 5 to 11 to the extent of rest 1/4th share in the suit land measuring 13 bighas and 5 biswas in village Mahog and learned appellate Court .
erred in setting aside the findings so returned by the learned trial Court.
Substantial questions of law are answered accordingly.
27. In view of the discussion held above, the present appeal is allowed with costs and the judgment and decree passed by the Court of learned District Judge, Solan in Civil Appeal No. 60-S/13 of 2006 dated of 01.06.2007 is set aside, whereas the judgment and decree passed by the Court of learned Civil Judge (Senior Division), Kandaghat, District Solan in Civil Suit rt No. 5-K/1 of 2002 dated 03.05.2006 is upheld.
Miscellaneous applications, if any, also stands disposed of.
(Ajay Mohan Goel) Judge October 26, 2016 (bhupender) ::: Downloaded on - 15/04/2017 21:27:03 :::HCHP