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1994 DIGILAW 81 (HP)

PARAS RAM v. LACHHMAN

1994-05-04

LOKESHWAR SINGH PANTA

body1994
JUDGMENT Lokeshwar Singh Panta, J.—This is defendants second appeal under section 100 of the Code of Civil Procedure against the judgment and decree passed by Additional District Judge, Mandi, Kullu and Lahaul Spiti Districts at Mandi dated 4-9-1985 whereby the judgment and decree passed by Senior Sub-Judge, Mandi dated 14-4-1983 is set aside and the suit of the plaintiff for joint possession to the extent of 4/9th share of one Mohan in the suit land is decreed in favour of the plaintiff against the defendants. 2. At the hearing of this appeal the learned Counsel appearing on behalf of the appellant has raised following two substantial questions of law :— (1) The true scope of presumption under section 108 of the Indian Evidence Act, 1872. (2) That the appellant has become owner of the suit property by way of adverse possession. The facts briefly stated are these :— 3 One Mohan S/o Rewalu had half share in the land comprised in Khata Khatauni No. 50/230 to 233 measuring 14-15-17 Bighas of 1/3rd share in the land Khata Khatauni No. 52/236 measuring 0-1-5 Bigha in village Dhar, Tehsil Sadar, District Mandi. Mohan had not been heard of for the last more than 35 years and thus, is presumed to have died. His wife Smt. Mathro also died on 1-12-1959 and her death certificate is Exhibit PA. To appreciate the relationship of the parties, with Mohan, the pedigree-table of the parties is reproduced as under :— Rawalu Durga Shankar Paras Ram Sarnu Kanshi Ram Lachhman-Krishan Kanhya-Inder Subhkaran-Thakar Das Mohan Sukh Ram Sarswani Kaushlya Padma (wife) (daughter) (daughter) 4. The plaintiffs have averred that they being the reversionary of Mohan inherited the suit land in respect of their own share after the death of Smt. Mathro and came into possession of it alongwith appellant-defendant No.1 (hereinafter defendant No.1), the co-sharer. It is further alleged that respondent Nos.1 to 4 (hereinafter the plaintiffs) have been illegally dispossessed from their shares in the suit land on 1-1-1972 by defendant No.1. Therefore, the suit for joint possession of their share came to be filed, 5. The defendant No.1 contested the suit inter alia alleging that the land in dispute is owned and possessed by him and the plaintiffs and proforma defendants were never in possession of the same. Therefore, the suit for joint possession of their share came to be filed, 5. The defendant No.1 contested the suit inter alia alleging that the land in dispute is owned and possessed by him and the plaintiffs and proforma defendants were never in possession of the same. He pleaded that he is in peaceful, continuous, open and hostile possession of the suit land for the last more than 12 years and the land was not forcibly occupied by him on 1-1-1972 as alleged by the plaintiffs. It is also denied that Mohan has died or that Smt. Mathro was his legally wedded wife and therefore, was heir of Mohan However, her death on 1-12-1959 has been admitted. It is also admitted that Mohan was the owner in the suit land according to his share. The fact that the parties are the reversionary of Mohan is also admitted. 6. On the basis of the pleadings of the parties 5 issues were framed by the trial Court and all the issues have been decided in favour of the plaintiffs whereas issue No. 4 (a) was decided against the plaintiff holding that the suit of the plaintiff was time barred. 7. An appeal was preferred by the plaintiffs against the judgment and decree of the trial Court to the District Court and the Additional District Judge by his impugned judgment held that in the circumstances of the case Mohan shall be deemed to have been dead at the time when the suit was filed and therefore, the suit was within time and the plaintiffs were entitled to a decree in the suit. It is against the said appellate judgment that this appeal has come to this Court. 8. Shri Dharamveer Sharma appearing on behalf of the defendant urges that the date of the death of Mohan has to be proved by the plaintiffs and they have failed to prove that Mohan had died about 12 years prior to the filing of the suit. He contends that the presumption under section 108 of the Evidence Act is available to the plaintiffs when the factum of his death becomes material and not the date of the suit. He relied upon Shankareppa v. Shivarudrappa and others, AIR 1963 Mys 115 and Kottapalli Venkateswarlu v. Kottapalli Bapayya and others, AIR 1957 AP 380. 9. Ms. He contends that the presumption under section 108 of the Evidence Act is available to the plaintiffs when the factum of his death becomes material and not the date of the suit. He relied upon Shankareppa v. Shivarudrappa and others, AIR 1963 Mys 115 and Kottapalli Venkateswarlu v. Kottapalli Bapayya and others, AIR 1957 AP 380. 9. Ms. Devyani Kuthiala, learned Counsel appearing on behalf of the plaintiffs on the other hand, urges that the presumption about the death of a person who is unheard of for 7 years under section 108 of the Evidence Act can earliest be drawn when the dispute, in which the question as to whether the person is alive or dead was raised, is brought to the Court. The presumption cannot be given a further retrospective effect. In support of this contention she placed reliance in Jeshankar Revashankar v. Bai Divali, AIR 1920 Bom 85 ; Ramchandra Sadashiv Sidras Oka v. Keshav Dhondu Narvekar and others, AIR 1923 Bom 208 ; Lal Chand Marwari v. Mahant Ramrup Gir and another, AIR 1926 PC 9 ; Ramabai and others v. Saraswathi and others, AIR 1953 TC 114 ; Smt. Narbada and another v. Ram Dayal, AIR 1968 Raj 48 ; Har Nand alias Hanoo v. The Commissioner Ambala Division and others, 1971 PLJ 539 ; Chandi Charan Naskar v. Bhagvadhar Mondal and others, AIR 1976 Cal 356 and Surjit Kaur v. Jhujhar Singh, AIR 1980 P&H 274. 10. In view of these rival contentions raised by learned Counsel for the parties, it becomes necessary for me to examine the exact scope of the presumption under section 108 of the Evidence Act. Section 108 of the Evidence Act reads as follows :— "108. Burden of proving that person is alive who has not been heard of for seven years.—(Provided that when) the question is whether a man is alive or dead, and it is proved that he has not been heard or for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is (shifted to) the person who affirms it," 11. This section is proviso to section 107 of the Act which lays down that when a man is shown to be alive within 30 years, the burden of proving that he is dead is on the person who affirms it. This section is proviso to section 107 of the Act which lays down that when a man is shown to be alive within 30 years, the burden of proving that he is dead is on the person who affirms it. There is no presumption that a person who has not been heard of for a period of not less than 7 years died at the end of first 7 years or on any particular date The burden of proving the date of death of a person is always upon the person who asserts that a person had died on a certain date because there is no presumption about the date of death. The only presumption under section 108 of the Indian Evidence Act is that a person is dead if he has not been heard of for 7 years and this presumption only arises when question is raised in Court as to whether a person is alive or dead and onus of proving that the death took place at any particular time within 7 years lies upon the person who affirms it. Such presumption can earliest be drawn when a dispute is brought in a court or proceedings. This view has been consistently followed by decisions referred to above except the two dissenting judgments of Mysore and Andhra Pradesh High Courts, relied upon by the learned Counsel for the defendant. 12. In the present case admittedly, the suit land has been owned by Mohan who has not been heard of for the last more than 35 years. His wife Smt Mathro also died on 1-12-1959 and the plaintiffs are his reversionary. The dispute between the parties arose when the plaintiff filed the suit on 14-7-1972 and in view of the decisions referred to above by the various High Courts. Mohan shall be presumed to have died when the dispute arose between the parties i.e. when the suit was filed by the plaintiff on 14-7-1972. The succession of Mohan shall be deemed to have opened on that date and not prior to that date. Smt. Mathro died on 1-12-1959 but she could not be deemed to have succeeded Mohan because no specific date about the death of Mohan can be fixed muchless before 1-12-1959 without leading clear and convincing evidence by defendant No.1 who affirms it. Smt. Mathro died on 1-12-1959 but she could not be deemed to have succeeded Mohan because no specific date about the death of Mohan can be fixed muchless before 1-12-1959 without leading clear and convincing evidence by defendant No.1 who affirms it. The plaintiffs are admittedly, the reversionary of Mohan and succession to his property shall be deemed to have opened on 14-7-1972, and they are entitled to their shares in the property of Mohan There is no evidence led by defendant No.1 that Mohan had died at any specific date earlier to the date of the filing of the suit, nor there is any evidence to prove that Mohan had died prior to the death of Smt. Mathro and it cannot be held that his wife Smt. Mathro succeeded him before her death i.e. 1-12-1939. The provisions of Article 65, Explanation (b) of the Limitation Act do not apply in the present case. This provision applies where the widow inherited the property of her husband as a limited owner and the reversioners became entitled to the possession of the property on the death of Smt. Mathro. The provisions apply to such reversioriers against third person in possession of the property, but not against the co-sharer. Admittedly, Paras Ram defendant No.1 had been co-sharer with Mohan and after the death of Mohan his status shall continue to remain the same and his possession shall be deemed to be on behalf of the co-sharer and not against the interest of the co-sharers till ho expressly or impliedly shows his intention to possess the share of others against them. In the present case, there is no evidence to show if defendant No.1 has ever shown his intention to possess the share of Mohan or his successor-in-interest against the interest of the co-sharers. In the copy of Jamabandi for the year 1967-68 (Ex. PB) Mohan has been shown joint owner of the property with defendant No.1 and the plaintiffs are shown in joint possession thereof. No other evidence regarding the date of death of Mohan prior to 14-7-1972 is available on record. In view of the aforesaid evidence and settled law by the various High Courts the earliest date which can be fixed for the death of Mohan will be 14-7-1972 when the suit was filed. No other evidence regarding the date of death of Mohan prior to 14-7-1972 is available on record. In view of the aforesaid evidence and settled law by the various High Courts the earliest date which can be fixed for the death of Mohan will be 14-7-1972 when the suit was filed. Thus, the finding and conclusion arrived at by the lower appellate Court are absolutely correct holding the suit of the plaintiffs to be within period of limitation. The lower appellate Court is also right in holding that the provisions of Article 65, Explanation (b) of the Indian Limitation Act do not apply in the present case. 13. The next point raised by the learned Counsel for defendant No.1 that defendant No.1 has become owner of the suit property by way of adverse possession is also not sustainable. The trial Court while deciding issue No. 4 has found that defendant No. 1 has not been able to prove what was the overt act done by him which can be considered as notice to the other co-sharers that his possession has become adverse. The defendants evidence is not clear and specific. The long possession ipso facto cannot be held to be adverse unless it is proved that defendant No.1 is in continuous, peaceful and hostile possession to the knowledge of the plaintiffs. Defendant No.1 has not led any evidence to prove that he was holding the land adversely and to the knowledge of the co-sharers. 14. Although this finding was recorded by the trial Court against defendant No.1 yet he has not challenged the same before the appropriate court. 15. In view of the above discussion, the trial Court has rightly held that defendant No.1 has failed to prove his title over the suit property by way of adverse possession. 16. In the result, the appeal of the defendant No.1—appellant is, therefore, dismissed. The suit of the plaintiffs for possession to the extent of 4/9th share out of the share of Mohan in the suit land is decreed in favour of the plaintiffs and against the defendants. 17. The parties are however, left to bear their own costs. Appeal dismissed.