Patna High Court
Khato Lal Dass And Anr. vs Md. Jahiruddin Babar And Ors. on 22 February, 1984
Equivalent citations: AIR1984PAT239, AIR 1984 PATNA 239, (1984) BLJ 576 (1984) 2 RENCR 221, (1984) 2 RENCR 221
JUDGMENT Ashwini Kumar Sinha, J.
1. This second appeal is by defendants 4 and 5 against a judgment of affirmance.
2. The suit was filed for declaration of plaintiff's title to the extent of 2 annas 8 pies share in the disputed property. Prayer for partition was also made by the plaintiffs over 2 Acres 18 decimals of land claimed by him.
3. The plaintiff's case was that one Admen Samual Pyne had a tenure of C. S. Khewat No. 121/37 and he died leaving behind two sons, namely, David Pyne and Gopal Pyne. According to the plaintiff, both the sons inherited the said property and came in joint possession. The plaintiff alleged that David Pyne sold his half share to defendants Nos. 3 to 6 by a registered sale deed and subsequently Gopal Pyne also sold his share in the suit land to the plaintiff as well as to defendants Nos. 1 and 2 and put them in possession. Thus, according to the plaintiff, he came in possession of 2 annas 8 pies share in the suit land while defendants 1 and 2 got 5 annas 4 pies and the remaining 8 annas share went to defendants 3 to 6. According to the plaintiff, he started getting difficulty in joint possession and hence he demanded partition which was refused which necessitated the filing of the present suit.
4. The suit was contested by defendants Nos. 3 to 6. Later, the name of defendant No. 3 was expunged. The defence was that the suit was barred by limitation and adverse possession. The contesting defendants alleged that defendants Nos. 1 and 2 had gone in collusion with the plaintiff. The case of the contesting defendants was that the suit land exclusively belonged to David Pyne only and Gopal Pyne had no interest in it at all nor was he in possession thereof. David Pyne, according to the contesting defendants, sold the land to these defendants (including defendant no. 3) by registered sale deeds dated 29-12-1953 and 19-1-1955 and gave possession over these lands appertaining to R. S. Khata No. 610 and since then these contesting defendants were coming in possession. It was further pleaded that the disputed land was recorded in the names of these contesting defendants during the revisional survey. It was further pleaded that the kobala executed by Gopal Pyne in favour of plaintiff and defendants 1 and 2 was collusive and without consideration.
5. The trial Court decreed the suit and ordered a preliminary decree for partition of 1/6 annas share of the plaintiff in the suit land, and further ordered the partition to be effected by appointment of a survey knowing pleader Commissioner. The trial Court also declared the plaintiff's title over the suit land to the extent of share as found by it. The trial Court held that David Pyne and Gopal Pyne were full brothers and, accordingly, had half share, and it also held that the kobal executed by Gopal Pyne in favour of the plaintiff and defendants 1 and 2 was valid and legal. The contesting defendants (defendants 4 and 5) preferred an appeal against the judgment and decree of the trial Court. The Court of Appeal below held that Gopal Pyne was the son of Samual Pyne and inherited half share in Khewat No. 121/37 and was in possession and Gopal Pyne must be deemed to be in joint possession as a co-sharer. In view of such a finding to the effect that Gopal Pyne was deemed to be in joint possession as a co-sharer, the Court of Appeal below did not go into the question of adverse possession, as in its view, the question of adverse possession and limitation did not arise and lastly, the Court of Appeal below held that the plaintiff's sale deed was genuine, valid and for consideration.
6. The learned counsel appearing for the defendants-appellants has submitted that the whole approach of the Court of Appeal below was erroneous in law, as it committed an error of law to hold that Gopal Pyne must be deemed to be in joint possession as a co-sharer. According to the learned counsel, for the defendants-appellants, the 1contesting defendants having pleaded and proved title by adverse possession from the date of their registered sale deeds (Exts. A and A/1), the Court of Appeal below should have gone into the question of adverse, possession as pleaded by the contesting defendants and also on the question of limitation.
7. It is pertinent to note here that the plaintiff is a stranger to the family of Samual Pyne and so are the contesting defendants. Thus, the instant suit is between the two strangers over the lands in suit belonging to the family of Samual Pyne. The contesting defendants claim to have purchased the entire property from David Pyne and also claim to have come in possession thereof from the dates of the purchases, i.e. from 1953 and 1955. The suit tad been filed in May, 1969; say fourteen years after the last purchase by the defendants. Here it is pertinent to state that the plaintiffs' sale deed is dated 20th May, 1968.
8. The second submission advanced by the learned counsel for the defendants-appellants is that the Court of Appeal below committed an error of law in relying upon an affidavit (Ext. 2) of a person who was alive. The submission last advanced by the learned counsel for the defendant-appellants was that David Pyne being alone entered in the survey record of rights, it was a case of Gopal Pyne acquiescing David Pyne to be the ostensible owner of the entire Khewat and hence the vendees from David Pyne would be protected under Section 41 of the T. P. Act.
9. The general rule that possession by one tenant-in-common cannot, in absence of special circumstances be treated as adverse to another tenant-in-common should not be applied to a case where the circumstances are such as to indicate that the possession of each must have been adverse to the other.
10. In the instant case, as already stated above, the plaintiff as well as the contesting defendants are strangers to the family of Samual Pyne. The contesting defendants specifically pleaded that David Pyne (being the only son of Samual Pyne) sold the entire lands to the contesting defendants by two registered sale deeds and that they were in possession from the dates of purchases. Even if, Gopal Pyne, as held by the Courts below, was another son of Samual Pyne and the full brother of David Pyne; a stranger had purchased the entire property from one of the brothers, and such a stranger cannot be said to be a co-shares with the other son Gopal Pyne. The position would have been different, if the contesting defendants had pleaded purchases of some lands only from David Pyne. Then the rest of the lands would have remained with Gopal Pyne arid in that view of the matter, the stranger purchaser could be taken to be a co-sharer with Gopal Pyne and one co-sharer's possession then would have been the possession of the other co-sharer. But, though it will be a repetition the contesting defendants claimed to have purchased the entire property from one of the brothers David Pyne and also claimed to have come in possession over the plots covered by the registered sale deeds and hence it was essential for the Courts to have considered the question of adverse possession and limitation as pleaded by the contesting defendants. I hold that, on the facts pleaded by the parties in the instant case, the Court of Appeal below was not correct in holding that Gopal Pyne must be deemed to be in joint possession as a co-sharer. Thus I hold that there is enough force in the first submission advanced by the learned counsel for the defendants-appellants and I hold that the Court of Appeal below has given a wrong approach to the case. If the contesting defendants had purchased the entire property and, in fact the basis of the registered sale deeds entered possession over the disputed lands, then their entry was adverse to the other co-sharer from the very moment of their entry and this question of adverse possession was essential to be dealt with by the Court of Appeal below.
11. As the appeal succeeds on the very first point, it is not necessary to decide the other two submissions advanced by the learned counsel for the appellants.
12. In the result, the appeal is allowed, the judgment and decree of the Court of Appeal below are set aside and the case is sent back to the Court of Appeal below for fresh decision after hearing the parties on the materials already on the record and in accordance with law. The parties will be entitled to argue all the points available to them. The Court of Appeal below will also deal with the question of adverse possession and limitation as pleaded by the contesting defendants-appellants in the light of observations as indicated above. However, in the circumstances of the case, there will be no order as to costs.