Punjab-Haryana High Court
Hazara Singh And Anr. vs Faqiria (Deceased) Through L.Rs. on 25 May, 2004
Equivalent citations: AIR2004P&H353, (2004)138PLR603, AIR 2004 PUNJAB AND HARYANA 353, (2004) 3 RECCIVR 688, (2005) 1 CIVLJ 744, (2004) 3 PUN LR 603, (2004) 3 LANDLR 709
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This judgment shall dispose of two Regular Second Appeals bearing Nos. 1898 of 1985 and 2189 of 1985, R.S.A. No. 1898 of 1985 has been filed by defendant Nos. 3 and 4 and R.S.A. No. 2189 of 1985 has been filed by the plaintiffs. In these appeals, the following substantial questions of law are involved.
1. Whether the alienation made by a co-sharer by way of gift of specific khasra number out of the joint khewat would be an alienation of the share out of the joint land, and in view of the said alienation, the donee will become a co-sharer in the joint khewat?
2. Whether the suit filed by the plaintiff for declaring him as owner of the property on the basis of adverse possession of the land belonging to his co-sharer has to prove his title by adverse possession by specifically pleading and proving the complete ouster of the co-sharer as well as the animus possidendi from a particular date?
2. The brief facts of the case are that three brothers, namely, Biru, Ganga Ram and Bhambhu, were the co-owners in a joint Khewat comprising of 269 kanals 6 marlas of land. In the year 1916 two brothers, namely Biru and Ganga Ram gifted 14 bighas 9biswas of land comprising in specific khasra numbers situated in village Kamibwala to Nanak and Nathu, who were their real sister's sons out of their share. This fact is not disputed. Defendant Nos. l and 2 are the legal representative of the aforesaid Nanak and Nathu. In the year 1972, some of the land from the joint Khewat was acquired by the Government of Punjab. In lieu of the said acquisition, defendant Nos. 1 and 2 were allotted? Kanals 5 Marias of land in village Manimajra vide award dated 24.3.1972 (Ex.D-8). Thus, in the revenue record, defendant Nos. l and 2 were recorded as owners of 17Kanals 17 Marias of land situated in village Kaimbwala and 7 Kanals 5 Marias in village Manimajra. The said land was sold by defendant Nos. l and 2 to defendant Nos. 3and 4 by registered sale deed dated 2.2.1.980. The said sale deed led to the filing of the present suit by the plaintiffs. Plaintiff Nos. 1 to 3 were the sons of one of the donor Ganga Ram and plaintiff No. 4 is the grand-daughter of the other donor Biru.
3. The plaintiff had filed, the instant suit for declaration to the effect that they were the owners in possession of the suit land by way of adverse possession and the sale deed dated 2.2.1980 executed by defendant Nos. l and 2 in favour of the defendant Nos. 3 and4 was without any title and was not having any effect upon their rights. They also sought a decree for permanent injunction restraining defendant Nos. 1 to 4 from interfering in their peaceful possession on the suit land. The case of the plaintiffs, thus, was that the gift, as recorded in the revenue record by Ganga Ram and Biru in favour of Nanak and Nathu was merely a paper transaction and actually the possession of the land in dispute always remained with the aforesaid owners throughout. The plaintiff and defendant Nos. 5 to 17 had remained in continuous possession of the suit land through their predecessors-in-interest and now by themselves. Thus, their possession was undisturbed, con-
3. tinuous, peaceful, open and hostile to defendant Nos. l and 2 for more than 12 years on the date of filing of the suit. Therefore, they had matured their ownership on account of prescription and adverse possession and the sale deed dated 2.2.1980 executed by defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4 was without any title and was not binding on their rights.
4. Defendant Nos. l to 4 contested the aforesaid suit by filing separate written statemeats. Similar pleas were taken by defendant Nos. l and 2 and defendant Nos. 3 and 4 in their written statements. It was asserted by the defendants in their written statement that the suit land was gifted by Ganga Ram and Biru in favour of their predecessor-in-interest Nanak and Nathu and possession of the same was also delivered to them in the yearl916. It was Pleaded that except the land comprising in Khasra Nos. 4 and 7/2 of rectangle No. 5 in village Kaimbwala and that too as tenants-at-will under the donees, the plintiff were not in possession over the rest of the suit land in village Kaimbwala. Therefore, regarding the said piece of land, their possession was permissive. Even, otherwise, the defendants are the co-sharers in the Khewat, therefore, there cannot be any adverse possession amongst the co-sharers. They further pleaded that the sale deed dated2.2. 1980 executed by defendant Nos. l and 2 in favour of the defendant Nos. 3 and 4 was valid and legal.
5. On the pleading of the parties, the following issues were framed by the trial Court:-
1. Whether the plaintiffs have become the owners of the suit land by way of adverse possession? OPP
2. Whether the entries in the revenue record showing defendant Nos. l and 2 are liable to be corrected? OPP
3. Whether the sale deed dated 2.2.1980 executed by defendant Nos. l and 2 is void and is liable to be set aside? OPP
4. Whether the plaintiffs are the owners of the suit land? OPP
5. Relief.
After taking into consideration the documentary as well as oral evidence led by the parties, the trial Court dismissed the suit while holding that as far as the land measuring 7 Kanals 5 Marias situated in village Manimajra is concerned, none of the plaintiffs was in possession of the said land. Regarding the land measuring 17 Kanals 17 Marias situated in village Kaimbwala, it was held as under:-
"From the various khasra girdawaris discussed above, it stands proved on record that the plaintiff are not in possession of khasra Nos. 5/8/2/2, 5/8/1/1, 5/3/2/2, 5/4 and 5/7/2 as owners but their possession is either as co-sharer or as tenant-at-will or as trespasser. The contention of the learned counsel for the plaintiff that the gift made by Ganga Ram and Biru in 1916-17 in favour of Nanak and Nathu is void as the possession was not delivered cannot be accepted to be correct. It is correct that in case the gifted property is capable of physical possession, the non-delivery of the same makes the gift invalid as has been held in case Smt. Mukhtiar Kaur v. Gulab Kaur, (1977)79 Punjab Law Reporter page 185 but in this case the possession was delivered and mutation was sanctioned in favour of the donee in 1916-17 and hence the gift was a valid one. The other contention of the learned counsel for the plaintiffs is that an attribute of adverse possession is that it begins with disseisin or ouster of the owner. It is an act of displacement of the owner by the adverse claimant, disseisin or outster of the real owner is the foundation of the title by adverse possession. It remains in inchoate title, or a growing title till the expiration of 12 years of its continued, open and hostile, assertion and enjoyment. Before title by adverse possession is perfected, all presumptions and intendments are in favour of the real owner and the plaintiff in order to succeed, has to allege and establish that his possession was actual, adverse, exclusive, peaceful, continuous, unbroken, open, notorious, visible, distinct, unequivocal and hostile under a colour of title, or claim of right and he must further prove the date of commencement, the territorial extent and the length of his adverse possession as has been held in the Full Bench case Ganda Singh and Ors. v. Ram Singh, (1959)61 Punjab Law Reporter page 374. I have perused this ruling and agree but in this case, the plaintiffs have miserably failed to prove their continuous, peaceful and actual possession for the last more than 12 years and even now the possession of the plaintiffs on khasra numbers 5/4 and 5/7/2 is that of tenants and not as an owner by adverse possession. No particular date has come on record from which the plaintiffs are in possession of these two khasra numbers even. The plaintiffs 1 to 3 are the sons of Ganga Ram who made a valid gift of the suit land along with Biru in favour of their nephews Nanak and Nathu in 1916-17 and the names of Nanak and Nathu as co-sharer are recorded in the various Jamabandies produced in the file. Even it has been held in case Sunder Das v. Muhammad Akram Khan and Ors., A.I.R.1930 Lahore 384(2) that persons recorded as tenant-at-will cannot plead adverse possession. Similarly, it has been held in case Peer Dia v. Man Singh, (1976)78Punjab Law Journal 626 that mere non-payment of rent by a tenant does not constitute adverse possession. In these circumstances, I come to the conclusion that the plaintiffs have not become the owners of the suit land at village Kaimbwala by adverse possession."
6. Feeling aggrieved against the said judgment and decree passed by the trial Court, the plaintiffs filed an appeal. Before the first Appellate Court, the counsel for the plaintiffs conceded to the findings recorded by the trial Court regarding the land measuring 7kanals 5 marlas situated in village Manimajra. He also contended that plaintiff No. 4 Smt. Nimmo did not figure anywhere in the revenue record, therefore, no case is made out in her favour. He only pressed that out of 17 kanals 17 marals of land situated in village Kaimbwala, the plaintiffs perfected their title by way of adverse possession only pertaining to land measuring 14 kanals and 4 marlas comprising in Khasra Nos. 4 and7/2 of rectangle No. 5 in village Kaimbwala. The first appellate court accepted the contention of the counsel for the plaintiffs and held that plaintiff Nos. 1 to 3 perfected their title regarding 14 kanals 4 marals of land situated in village Kaimbwala by way of adverse possession and decreed their suit to that extent.
7. The first Appellate court decreed the suit of the plaintiffs in the aforesaid manner by taking into consideration the documents Ex.P-7, which is a Jamabandi for the year1961-62, Ex. P-9, which is a Jamabandi for the year 1972-73 and Ex. P-l to P-4, which are copies of Khasra Girdawaris pertaining to plaintiffs were recorded in possession of the land measuring 14 kanals 4 marals comprising in Khasra Nos. 4 and 7/2 of rectangle No. 5 in village Kaimbwala. Their possession was recorded as Gair Marusi Bila Lagan Kabza Jabardasti. While rejecting the contention of the counsel for the defendants to the effect that the possession of one of the co-sharers could not be adverse qua the other co-sharers, the learned first Appellate court observed that it is not a case of joint Khewat. therefore, the question of adverse possession by a co-sharer of the land of the other co-sharer does not arise. In this regard, the learned first Appellate Court made the following observations:-
"His first and foremost submission is that the appellants are recorded as co-owners with regard to the khewat having the land measuring 14 kanals and 4 marlas and some other land also. It is his submission that the possession of one of the co-sharer could not be adverse qua to the other co-sharers. He has referred to Ex. P-12 which is a copy of Jamabandi for the year 1962-63 relating to khewat No. 3. Therein the total land shown is 269 kanals and 6 marlas. In support of this contention, he has cited an unreported case in RSA No. 221 of 1979 decided by Hon'ble Mr. Justice I.S. Tiwana on 5.5.1980 (Shri Bachitar Singh v. Chand Kaur). Each case has to be taken according to its peculiar circumstances. There can be no dispute with regard to the proposition of law put forward by Shri R.C. Puri, learned counsel for the respondents. But the case in hand is on a totally different footing. This proposition of law would be applicable only if the appellants and the contesting respondents are recorded as co-owners of khewat.
This is not the case. The whole of the khewat consists of 269 kanals and 6 marals of land. In column No. 4 relating to the ownership, the whole of the khewat is shown to be owned by the appellants and respondent Nos. 3 and 5 to 17 or their predecessors. The names of respondent Nos. l and 2 or their predecessors-in-interest appear in the column cultivator as donees from the appellants as donors only with regard to this 14kanals 4 marlas of land. But the possession is shown to be that of the appellants as owners on account of forcible possession. Therefore, it is not a case of joint khewat. It is a case where with respect to a particular khasra appeared in the revenue record and no more. It is not a case of joint khewat. But it is a case of particular khasra number. This submission is, therefore, repelled.".
8.While rejecting the second contention of the learned counsel for the defendants to the effect that merely on the basis of revenue entries, a case of adverse possession in favour of the plaintiffs was not made out as there is nothing on the record nor it was pleaded from which date the possession of the plaintiffs became adverse. In this regard, the first Appellate Court observed as under:-
"In this case there is no such evidence. Therefore, in my view, the possession of the appellant Nos. 1, 2 and 3 over 14 kanals and 4 marlas of land was adverse for more than 12 years from the date of suit and they have become owners of the same by way of adverse possession. The mere fact that the word 'gair morusis' occurs in the revenue record entries does not mean that they are tenants-at-will. The entries have to be read as a whole and not in part. In view of the said position, I hold that the appellant Nos. l, 2 and 3 have become the owners of 14 kanals 4 marlas of land by way of adverse possession."
On the basis of the aforesaid conclusion, the learned first Appellate Court decreed the suit of the plaintiffs to 14 kanals 4 marlas of land situated in village Kaimbwala.
9.Feeling dissatisfied, both the parties have filed the two separate appeals before this Court.
10. As far as the appeal filed by the plaintiffs is concerned, the same is against the conceded position by their counsel before the first Appellate court. The learned counsel for the plaintiffs herein before this Court also did not seriously pursue the said appeal as he could not controvert the findings recorded by the Courts below regarding possession of defendant Nos. l to 4 on the land measuring 7 kanals 5 marlas situated in village Manimajra and 17 kanals 17 marlas of land situated in village Kaimbwala except 14kanals 4 marlas situated in village Kaimbwala. However, the counsel for the defendants hotly pursues the appeal filed by defendant Nos. 3 and 4.
11. Shri P.K. Mutneja, learned counsel for the defendants raised two-fold submissions. Firstly, he submitted that the finding recorded by the first Appellate Court that the plaintiffs and defendant Nos. l and 2 were not the co-sharers in the joint khewat is based on wrong conclusion drawn by it on the basis of the documents available on the record. He further submitted that while drawing the said conclusion, the learned first Appellate Court has also ignored two important documents produced and proved by the defendants on record i.e. Ex. D-8 and D-9. He canvassed that as per various documents available on the record, it is clear that defendant Nos. l and 2 and their predecessors-in-interest were the co-sharers in the joint khewat along with the plaintiffs and their predecessors-in-interest were the co-sharers in the joint khewat along with the plaintiffs and their predecessors-in-interest. In view of this position, one co-owner cannot claim adverse possession against the other co-owner except where the co-owner claiming the adverse possession clearly establishes by pleading and proving the complete ouster of the other co-owner from a specific date as well as the animus possidendi. He submitted that in the instant case, the plaintiffs have neither pleaded nor proved such ouster at all. Rather, as per the documents available on the record i.e., Ex. D-8 and D-9, the plaintiffs accepted the status of defendant Nos. l and 2 and their predecessors-in-interest as co-owners in the joint khewat when in the land acquisition proceedings in the year 1972,the compensation was distributed among the plaintiffs and defendant Nos. 1 and 2 according to their share. Therefore, the learned counsel for the defendants submitted that the plaintiffs have miserably failed to prove the adverse possession on the land in question in the instant case. The learned counsel for the defendants further argued that the possession of the plaintiffs was permissive as tenants-at-will. This fact is clear from column No. 5 of the Jambandis Ex. P-7 and P-9 in which the donors have been recorded as Gair Marussi. The first Appellate Court has totally ignored this aspect of the matter without giving any reasoning and without considering the finding of the trial Court on this aspect. Hence, the judgment and decree passed by the First Appellate Court is liable to be set aside.
12. On the other hand, Shri B.S. Bhatia, learned counsel for the plaintiff submitted that the finding recorded by the first Appellate Court regarding adverse possession is a pure finding of fact based on evidence available on the record, therefore, the same is not liable to be questioned in the Regular Second Appeal.
13. I have heard the arguments of the learned counsel for both the parties and perused the record of the case.
14. As per the evidence available on the record (Ex.P-10 Jamabandi for the year 1916-17), two brothers, namely, Biru and Ganga Ram gifted 14 bighas 9 biswas of land comprising in specific khasra numbers, situated in village Kaimbwala, to Nanak and Nathu, who were the sons of their real sister Smt. Nimmo. The plaintiffs have not dispute of this fact. Their claim is that actually the said gift transaction was a paper transaction and it was not implemented, but the revenue record produced by the parties establishes, a contrary picture. Throughout in the revenue record, defendant Nos. l and 2 or their predecessors-in-interest have been shown as co-owners of the land being donees, through they have been shown as donees in the column of cultivation and the plaintiffs as donors. Merely because the plaintiffs have been shown in the column of ownership as co-sharers and defendant Nos. l and 2 or their predecessors-in-interest shown in the column of cultivation, it does not mean that the defendants or their predecessors-in-interest were not the co-owners in the joint khewat. The conclusion drawn by the first Appellate court that it is not a case of joint khewat is erroneous. Merely because in the revenue record, the defendants or their predecessors-in-interest have been shown as donees in the column of cultivation, that does not mean that they are not the co-sharers in the joint khewat. Undisputedly, two of the co-owners, namely Biru and Ganga Ram gifted 14 bigas 9 biswas of land from the joint khewat comprising in specific khsara numbers. By virtue of the said alienation which fall under the definition of ''Transfer of Property', the donees became co-sharers in the joint khewat. The rights of a transferee from a co-owner are regulated by Section 44 of the Transfer of Property Act which provides that where one or two more co-owners of the immovable property legally competent in that behalf transfer his share of such property or any interest therein, the transferee acquires such share or interest and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share of specified portion, exclusively in possession of the transferor. Even though the gift was made of a specific same and by virtue of the same they became co-owners in the joint khewat. Transfer of a specific portion of the land out of the joint holding by one of the co-owners is nothing but transfer of a share out of the joint holding, as held by the Full Bench of this Court in Bhartu v. Ram Sarup,1 1981 P.L.J. 204. 15. In my opinion, the gift of a specific portion in the joint holding or the sale of a specific portion in a joint holdings does not stand on different footing. By virtue of the gift of a Specific portion, the predecessors-in-interst of the defendant became co-sharers in the khewat. They cannot be denied the status of the co-owners in the joint Khewat merely because in the revenue record, they have been shown as co-owners being donees in the column of cultivation. A transferee under Section 44 of the Transfer of Property Act gets right of the transferor to joint possession and to enforce a partition of the same whether the property sold is fractional share or specified portion. The first Appellate Court has totally ignored this aspect of the matter and drawn a wrong conclusion that the defendants or their predecessors-in-interest were not the co-owners in the joint khewat, merely because they have been shown in the column of cultivation and not in the column of ownership.
15. Thus, in my opinion, by virtue of the gift made by Biru and Ganga Ram, the defendants or their predecessors-in-interest became co-owners in the joint holding in which the plaintiff are also the co-owners.
16. Now, the question arises for consideration is whether the possession of the plaintiffs, who are the co-owners in the joint khewat of the gifted land, is adverse to the defendants, which ripen into ownership. The claim of the plaintiffs was that they were in forcible possession of the suit land for more than 12 years, therefore, their possession is adverse and they have become owners of the disputed land.
17. On the other hand, the stand taken by the defendants was that the possession of the plaintiffs was permissive and it never became adverse. The first Appellant Court held the possession of the plaintiffs as adverse on the basis of the Jamabandi for the year 1961-62 (Ex.P-7) and the Khasra Girdawaris pertaining to Kharif 1968 till Rabi1979 (Ex.P-1 to P-4). In these revenue records, the possession of the plaintiffs has been recorded as 'Gair Marnssi Bashrara Malkan Bila Lagan Kabja Jabardasti' Prior to the Jamabandi for the year 1961-62 i.e. in the Jamabandi for the year 1958-59 (Ex.P-8), the possession of the plaintiffs was recorded as Gair Marussi. There is another evidence available on the record which has been totally ignored by the first Appellate Court. This evidence is Ex. D-8 and D-9. Vide Ex.D-8, when the land from the joint holding was acquired by the Government in village Kaimbwala, compensation was paid to the defendants. Vide Ex.D-9, in lieu of the acquisition of the land gifted to the predecessors-in-interest of the defendants in village Kaimbwala, 7 kanals 5 marlas of land was given to them in village Manimajra. These facts clearly establish that the plaintiffs (donors) never asserted their title by way of adverse possession when the compensation was paid and the land in lieu of the acquired land was allotted to defendant Nos. l and 2. This fact clearly establishes that the plaintiffs never objected to the title of the defendants. The law with regard to the claim of adverse possession by a co-owner is well settled. The possession of a co-sharer is the possession for all the 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 (Mohd. Bagarv. Naim-Un-Nisa Bibi,2 A.I.R. 1956 S.C. 548). Mere mutation in the revenue record in favour of one co-sharer does not amount to ouster unless there is a clear declaration denying title of the other co-sharer. If a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse from the other co-sharer. It has been held by the Hon'ble Apex Court in Darshan Singh v. Gujjar Singh} (2002-2)131 P.L.R.233 that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of the other co-sharers; the mutation in there venue records in the name of one co-sharer would not amount to ouster unless there is clear declaration that title of the co-sharers was denied.
18. A co-sharer claiming ouster of another co-sharer has to prove the ouster by conclusive evidence. In Kandu v. Kochi,4 1971(3) S.C.C. 784, the Hon'ble Apex Court has held that the evidence of a conclusive character is necessary to show that a co-sharer's right has been lost by ouster where there is sufficient evidence in the case to show that the person against whom the ouster was claimed has participated in the income of the property, the plea of ouster will deem to be taken against him. Recently, the Hon'ble
18. Apex Court in Md. Mohammad Ali (dead) by L.Rs. v. Jagdish Kalita and Ors.,5 2004(1) S.C.C. 271 has held that to claim title by was of adverse possession in a joint land, a co-sharer has to establish a complete ouster of the other co-sharers. Long and continuous possession by itself, would not constitute adverse possession. The plea of ouster has to be raised and proved as to since when their possession became adverse to the other co-sharers. It was further held that mere 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.
19. In view of the aforesaid legal position, in my opinion, in the instant case, the plaintiffs have failed to prove the ouster of defendant Nos. 1 and 2 from the land in question. Neither there is any pleading nor there is any proof as to when the possession of the plaintiffs became adverse to defendant Nos. l and 2. Merely on the basis of the revenue entries as Bila Lagan Kabja Jabardasti, the possession of the plaintiffs cannot be said to be adverse to defendant Nos. 1 and 2. The documents Ex.D-8 and D-9 clearly establish that they did not take any step or assert their right as owners when the compensation was paid and land in lieu of acquisition was allotted to the defendants. There is nothing on the record which establishes that the plaintiffs denied the right and title of the defendants to their knowledge. Merely because in the revenue record, their possession was recorded as 'Jabardasti' be inferred that they have denied the title of the defendants to the land. The learned first Appellate Court has simply held that in view of the evidence available on the record, the possession of the plaintiffs over the land measuring 14 kanals 4 marlas was adverse for more than 12 years from the date of suit and, therefore, they have become owners of the same by way of adverse possession. The first Appellate Court has failed to take into consideration the well settled position of law that mere long possession of the land would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. There must be clear and unequivocal assertion of title. The period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist and in case of co-sharers, there must be a positive evidence of the complete ouster of the co-sharers against whom adverse possession has been sought.
Thus, in my opinion, the findings relating to adverse possession recorded by the first Appellate Court are liable to be set aside.
In view of the aforesaid R.S.A. No. 1898 of 1985 filed by defendant Nos. 3 and 4 is allowed, the impugned judgment and decree passed by the first Appellate Court is setaside, and R.S A. No. 2189 of 1985 filed by the plaintiffs is dismissed, with no order as to costs.