Punjab-Haryana High Court
Ranjit Kaur And Ors. vs Shadi Singh And Ors. on 4 August, 1999
Equivalent citations: (2000)124PLR695
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. One Shadi Singh filed suit for separate possession of 1/3rd share of Shop No. B-IV-96 by way of partition, on the allegations, that this shop was purchased by him and his brothers Bhagwan Singh alias Bhan Singh and decreased Inder Singh on 21.5.1958 for Rs. 2,500/- from one Harnam Singh son of Natha Singh. It was alleged that the property was still joint liable to be partitioned.
2. Bhagwan Singh alias Bhan Singh and Balbir Kaur daughter of Inder Singh admitted the claim of Shadi Singh.
3. Ranjit Kaur etc. widow and children of Gurnam Singh son of Inder Singh contested the suit urging that this shop had never been purchased by Shadi Singh, Bhagwan Singh alias Bhan Singh and Inder Singh. Inder Singh alone was the exclusive owner of the shop. His widow Sada Kaur deceased had executed a Will in favour of her grandson Paramjit Singh son of Gurnam Singh. Balbir Kaur daughter of Inder Singh voluntarily relinquished her rights in the shop. Ranjit Kaur etc. widow and children of Gurnam Singh became the owners of the shop having stepped into the shoes of Inder Singh and his widow Sada Kaur and daughter Balbir Kaur. It was also urged that Ranjit Kaur etc. widow and children of Gurnam Singh son of Inder Singh had become owners by adverse possession assuming that in the shop, Shadi Singh and Bhagwan Singh alias Bhan Singh had 1/3rd share each.
4. On the pleadings of the parties, the following issues were framed by the learned trial Court:-
1. Whether the plaintiff has got 1/3 share in the suit property? OPP
2. Whether the plaintiff is entitled for possession of 1/3 rd share by way of partition of the suit property? OPP
3. Whether the defendants No. 2 to 7 have become the owners of the suit property by adverse possession, as alleged? OPD
4. Whether the plaintiff is not entitled to maintain the suit for want of possession? OPD
5. Whether the plaintiff is estopped in filing the suit by his act and conduct? OPD
6. Whether the suit is barred by time? OPD
7. Whether Smt. Sada Kaur widow of Inder Singh executed a valid Will dated 29.9.87 in favour of defendant No. 7? If so, its effect? OPD
8. Whether Inder Singh let out the room shown in the green colour in the site plan to Ravinder Singh son of Partap Singh for running a shop and that now said Ravinder Singh is a tenant under defendant No. 2 Ranjit Kaur? If so, its effect? OPD
9. Relief.
5. Additional Civil Judge, Senior Division, Khanna, dismissed the plain tiffs' suit in view of his finding that Shadi Singh, Bhagwan Singh alias Bhan Singh and Balbir Kaur had purchased this shop by virtue of sale deed Ex. P-1 dated 21.5.1953 and thus Shadi Singh had become the owner of 1/3rd share of the shop and Smt. Sada Kaur widow of Inder Singh had executed registered Will dated 29.9.1987 in favour of her grand son Paramjit Singh qua her share which she had inherited on the death of Inder Singh and that Ranjit Kaur etc. widow and children of Gurnam Singh son of Inder Singh had acquired exclusive title to the shop through adverse possession and through adverse possession they had negated the title of Bhagwan Singh alias Bhan Singh and Shadi Singh qua their 1/3rd share each, that there had been complete ouster of Shadi Singh, Bhagwan Singh alias Bhan Singh and Balbir Kaur from the title and possession of the shop in dispute and Ranjit Kaur etc. widow and children of Gurnam Singh son of Inder Singh and Smt. Sada Kaur widow of Inder Singh had been continuously, peacefully and uninterruptedly exercising their ownership right over the shop in dispute and had been in exclusive possession in complete hostility to the alleged right, if any, of Shadi Singh, Bhagwan Singh alias Bhan Singh and Smt. Balbir Kaur daughter of Inder Singh since 1958 when Inder Singh started exercising his full ownership rights on the shop in dispute. Inasmuch as, Inder Singh and after his death they i.e. Ranjit Kaur etc. had been realising rent from the tenant without associating Bhagwan Singh alias Bhan Singh. Shadi Singh or Balbir Kaur daughter of Inder Singh with them in the realisation of rent. It was found that in view of Ranjit Kaur etc. having become sole owners of the shop in dispute by way of adverse possession in derogation to the title of Shadi Singh, Bhagwan Singh alias Bhan Singh and Balbir Kaur, Shadi Singh ceased to have any share in the shop in dispute and consequently any right to ask for its partition. It was found that plaintiff was not barred by the law of limitation from claiming partition.
6. Aggrieved from this judgment and decree dated 28.2.1995 passed by the learned Additional Civil Judge (Senior Division), Khanna Shadi Singh went in appeal.
7. Additional District Judge, Ludhiana, decreed the plaintiffs-appellant's suit preliminarily for separate possession of 1/3rd share by way of partition of the shop in dispute, in view of his finding, that Shadi Singh was co-sharer in the shop in dispute having 1/3rd share therein by virtue of sale deed Ex.P1. It was found that merely because Inder Singh or after his death, Sada Kaur and Ranjit Kaur etc. were in possession, they could not be clothed with the attributes of adverse possession as they were co-sharers with Shadi Singh and Bhagwan Singh alias Bhan Singh and Balbir Kaur.
8. Aggrieved from this judgment and decree dated 26.5.1997 passed by learned Additional District Judge, Ludhiana, Ranjit Kaur etc. have come up in appeal to this Court.
9. I have heard the learned counsel for the parties and have gone through the records.
10. Shadi Singh, Bhagwan Singh alias Bhan Singh and Inder Singh are real brothers. They had purchased this shop in equal shares in the year 1958. Inder Singh remained all alone in possession. In the year 1972, Inder Singh rented out one room to Ravinder Singh at a rental of Rs. 100/- per month. In the year 1985, Ranjit Kaur rented out one room to Harjit Singh. It is true that Shadi Singh, Bhagwan Singh alias Bhan Singh and Balbir Kaur never collected rent from the tenant. Merely because they did not collect rent from tenant, that will not tantamount to their abandonment of the right in the suit property nor it will tantamount to their ouster by Inder Singh or Ranjit Kaur etc. There should have been positive act on the part of Shadi Singh, Bhagwan Singh alias Bhan Singh and Balbir Kaur which was required to be proved by Ranjit Kaur etc. to show that they had been ousted from the suit property. Abandonment is a positive act. The inactivity or the passive attitude of a person cannot be interpreted as an act of abandonment. A man must expressly say that he gives up his right. If he remains quiet, it cannot be said that he is foresaking his title to property or his interest. Question of abandonment that is to surrender one's claim or right completely or irrevocably is always one of fact and while considering this question all the circumstances of the case are required to be taken into consideration. Mere non-participation in the rents and profits of land of a co-sharer does not amount to ouster so as to give title by adverse possession to the other co-sharer in possession. A co-sharer in order to prove ouster of the other co-sharer by him, has not only to plead and prove that he was treating the joint property as though it belongs exclusively to him but also this fact was within the knowledge of other co-sharer. If co-sharer receives the rent or produce of the land exclusively, he is trustee on behalf of the other co-sharers and he does not become owner of the property by adverse possession. Co-sharer in possession would become constructive trustee on behalf of the co-sharer, who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees. Mere possession and enjoyment of one is not enough to constitute adverse possession unless there has been actual denial of the title of those who are not in possession. As between co-sharers who are brothers/relations inter se, very cogent evidence is required to prove ouster by the co-sharer in possession of the co-sharer not in possession. Very cogent proof is required to prove abandonment of the right by the co-sharer not in possession in favour of the co-sharer in possession. Possession of one co-sharer is deemed to be possession of all the co-sharers. In this case, there is no proof of any positive act of abandonment on the part of Shadi Singh etc. constituting adverse possession beyond the mere realisation of rent from the tenants by Ranjit Kaur etc. alone to their exclusion. There is no proof of any express ouster of Shadi Singh etc.
11. In my opinion, the judgment and decree passed by the learned Additional Judge, Ludhiana do not call for any interference. This appeal fails and is dismissed without any order as to costs.