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1982 DIGILAW 47 (HP)

NANAK CHAND v. SOHNOO

1982-08-27

V.D.MISRA

body1982
JUDGMENT V. D. Misra, C. J.— This second appeal is directed against the judgment and decree of District Judge Kangra at Dharamsala setting aside the judgment of the trial court and decreeing the suit. 2. Ghelu, Lala, Buta and Kapura were brothers. Lala died leaving behind his wife Smt. Raunku. They were joint owners of land which was left behind by Dulu, father of Ghelu and his brothers. Kapurai Buta and Smt. Raunku executed a sale deed (Ex-D4) on 7th December, 1894 in favour of Bir Singh, Jai Singh and Khushia sons of Sucheta. By this sale deed the vendors not only sold their 3/4th share of the land but also sold the l/4th share of Ghelu. It was mentioned in the sale deed that Ghelu had been given another land in lieu of his l/4th shire in the land in question in pursuant to family partition. 3. Ghelu had two sons Sohnoo and Sant Ram. Sant Ram died leaving behind Dhian Singh, Janaki Devi, Gian Devi and Satya Devi. Sohnoo along with Sant Ranis issues filed a suit against Nanak Chand, Khushia and Kashmir Singh asking for a declaration that the plaintiffs were owners co- sharers to the extent of l/4th share in the suit land. This suit land is the l/4th share of Ghelu, the predecessor in interest of the plaintiffs. 4. The defendants resisted the suit. It was averred that after the sale of the land on 7th December, 1894, the vendees were put in possession of the suit land. It was contended that if it was found that the vendors did not have the right to alienate the share of Ghelu, then the possession of the vendees became adverse from the date of the sale when they were put into possession of that land as owners. 5. On the pleadings of the parties, the following issues were framed : 1. Whether the plaintiffs are the co-sharers with defendants : Opp- 2. Whether the suit is within time : Opp. 3. Whether the defendants have become owners by adverse possession. OPD 4. Relief. The trial court decided issue No. 1 against the plaintiffs whereas issue No. 2 was found in their favour. Issue No. 3 was found in favour of the defendants and the suit was, therefore, dismissed. Whether the suit is within time : Opp. 3. Whether the defendants have become owners by adverse possession. OPD 4. Relief. The trial court decided issue No. 1 against the plaintiffs whereas issue No. 2 was found in their favour. Issue No. 3 was found in favour of the defendants and the suit was, therefore, dismissed. On appeal, the learned District Judge came to the conclusion that the plaintiffs and defendants were co-sharers in respect of the suit land and thus decreed the suit. 6. During the pendency of the present appeal. Sohnoo died. His legal representatives were not brought on record. It is contended by the respondents that the appeal abates since the claim of the appellant against the surviving respondents does not survive. 7. Now, the claim of plaintiffs respondents in the suit was that they were entitled to succeed to the l/4th share of Ghelu. It is not disputed that in case Ghelu and his brothers had succeeded to their father as joint owners then any one of them could have represented the interest of the deceased joint owner. Indeed, a Division Bench of this Court in Shiv Ram and others v. Bhagat Ram and others, ILR 1978 HP 158, held : "When a co-owner dies, his interest can be represented only by his own legal representatives, and not by his co-owners. In case of joint owners, however, the position is different because the surviving joint owners can represent the interest of the deceased joint owner effectively as the heirs of the said deceased joint owner can, unless: of course, the peculiar facts of a given case reveral that the deceased joint owner had some adverse claims against the surviving joint owners." According to Mr. Om Parkash Sharma, learned counsel for the respondents, Ghelu and other had succeeded to their father not as joint owners but only as co-owners. It is pointed out that Dulu was an occupancy tenant and his rights had devolved on his sons Ghelu and others who had inherited the property not under the Mitakshra Law but under the customary law. 8. Mr. Chhabil Das, learned counsel for the appellants, does not dispute that Dulu was an occupancy tenant and his rights had devolved on his sons under the customary law. 9. Now, the plaintiffs claim their right to the land on the ground that they were Ghelus sons. 8. Mr. Chhabil Das, learned counsel for the appellants, does not dispute that Dulu was an occupancy tenant and his rights had devolved on his sons under the customary law. 9. Now, the plaintiffs claim their right to the land on the ground that they were Ghelus sons. In case the plaintiffs have succeeded to Ghelu as joint tenants then each one of them will have the right to represent the Estate. However, if they are tenants in common, then one will not be able to represent the other. Mr. Chhabil Dass has drawn my attention to "Digest on Customary Law of Punjab." On page 112, under the heading Remark’ it is noticed : "As regards the succession to proprietary rights, the principle of representation generally recognized in the Punjab is that if a man be dead his place is taken by his son, or, if the son also be dead by the grandson, and in such. a case the son of grandson is in just as good a position as the father or grandfather. (1922, 68 lad, Cases. 767 at p. 768.)” Since the son could represent the father, anyone of Ghelus sons would represent Ghelu in respect of the latters right in land. Therefore, the absence of legal representatives of Sohnoo deceased does not in any way affect the rights of the plaintiffs and the appeal, therefore, against the plaintiffs does not abate. 10. Now, what is to be found is whether the vendees were put in possession as owners by the vendors of the land in dispute. This is to be deduced from the relevant entries in the revenue records. The first relevant revenue entry after the sale deed executed on 7th December 1894, is relating to 1895-1896. Since the vendors were the occupancy tenant, the entry under the heading name of tenant has to be scrutinised. In this column the names of Bir Singh, Jai Singh and Khushia sons of Sucheta (the vendees) in respect of 3/4th share are mentioned. l/4ch share is shown for Ghelu. Ghelu is shown as a mortgagor. The mortgagee is shown as one Lakhu s/o Chuni. The entries for the year 1899-1900 show the same state of affairs. In this column the names of Bir Singh, Jai Singh and Khushia sons of Sucheta (the vendees) in respect of 3/4th share are mentioned. l/4ch share is shown for Ghelu. Ghelu is shown as a mortgagor. The mortgagee is shown as one Lakhu s/o Chuni. The entries for the year 1899-1900 show the same state of affairs. The entry for this year further shows that the non-occupancy tenants on the whole of the land were persons who were under Bir Singh, Jai Singh and Khushia sons of Sucheta in respect of Kharif and Rabi crops. In the jamabandi for the year 1903-1904 Bir Singh, Jai Singh and Khushia sons of Sucheta have been shown as the owners in respect of 1/4th share. They are also shown as occupancy tenants. For the year 1907-1908, cultivation is shown in the name of these persons only. There is no change for the year 1911-1912. In the year 1915-1916 the cultivation is again shown in the name of these very persons. For the year 19194920 these three parsons are shown both in the column of owners as well as in the column meant for the names of the cultivators. In the latter column it is specifically mentioned that the land is under the possession of Bir Singh, Jai Singh and Khushia- It is also mentioned that the cultivation is done by Sant Ram etc, non-occupancy tenants under these three persons. The same state of affairs continues the year 1923-24, 1927-28, 1931-32, 1935-36, 1939-40, 1943-44. For the first time in 1952-1953 Sant Ram and Sehnoo sons of Ghelu are shown in the column of ownership. It is because every person whose name was being shown in revenue records had become an owner by operation on law. The entries leave no doubt that the possession was continuously with the vendees. 11. The sale deed in question being not effective as regards the l/4th share Ghelu, the revenue authorities could not give effect to the same in the revenue record. The result was that whereas for 3/4th share the vendees names were mutated, the names of Ghelu or his sons continued to be shown though the were not shown in possession. However, simply because the names of Ghelu or his sons were being shown in the column of cultivation for various years, it does not follow that they were in possession of the land. However, simply because the names of Ghelu or his sons were being shown in the column of cultivation for various years, it does not follow that they were in possession of the land. A Division Bench of the Lahore High Court in Akbar and others v. Tabu and others, AIR 1914 Lahore 284,, ruled : "We agree that possession of one co-sharer is ordinarily possession of all the co-sharers, but the co-sharer in possession can convert his possession into adverse possession by an overt act showing unequivocally to the co-shares that in future he intends to hold for himself alone, and this adverse possession so begun cannot be stopped by the other co-sharers merely by affirmations that they are co-sharers or by mere applications for partition. It is the business of the are co-sharers within limitation actually and effectually to assert their rights and to break up the usurpers exclusive possession. The mere retention by the revenue authorities of the names of those co-sharers as such after the aforesaid overt act has been done does not prevent limitation from running against them." (emphasis supplied). This view was followed in Mohamad Hassan v. Sohara and others, AIR 1924 Lahore 389. 12. The possession of the vendees in respect of l/4th share of Ghelu became adverse the moment they came to possess the land as owners despite sale in respect of that share being invalid. Reason is that the vendees had started claiming themselves as owners in their own right, 13. In Punit Mahton and others v. Krishundeval Mahton and others, AIR 1947 Patna 380, undivided share was gifted by A in favour of B and B was put in possession. The gift deed weed was found to be invalid but B had continued in possession for more than 12 years. A Division Bench of Patna High Court held that there can be adverse possession of the share in property though that share had not been divided by metes and bounds. 14. I find that the lower appellate court did not take into consideration these facts and did not apply its mind to find out whether vendees had been put in possession of l/4th share of Ghelu after the execution of the sale deed. On the other hand, the learned Judge perused the revenue entries backwards in order to find out the possession. On the other hand, the learned Judge perused the revenue entries backwards in order to find out the possession. As already stated, once the names of the sons Ghelu were being shown in the column of cultivates, it was but natural to show their names in the column of ownership because of the operation of law. In these circumstances, these entries were not sufficient to show that the vendees had not been in possession of the land in dispute and had not completed more than 12 years in adverse possession. There was no occasion to apply the principle that possession of co-sharer is possession of all co-sharers. The result is that the appeal is allowed, the judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court dismissing the suit is affirmed. No order as to costs. Appeal allowed.