MOHAN SINGH v. JAI CHAND — 1997 DIGILAW 404 (HP)

JUDGMENT P.K.PaIli, J.:- This second appeal has been filed by the plaintiffs. Suit for possession of land and residential houses was decreed in favour of the plaintiff Rama Nand holding that he was the exclusive owner of the suit property and was entitled to its possession as the defendants were in unauthorized possession of the suit property. 2. One of the defendants, i.e. Janki Dass, laid challenge to the judgment and decree passed by the trial Court and in the said appeal the other defendants were impleaded as proforma respondents. On account of valuation, the appeal was filed in the High Court and when the pecuniary jurisdiction of the District Judge was enhanced, the appeal was consequently sent there. The District Judge, Shimla allowed the appeal resulting in the setting aside of the judgment and decree passed by the trial Court and the case was remanded back for deciding the suit afresh after recording findings separately on every issue. 3. The order/judgment 6f remand was challenged before this court and vide judgment dated April 13, 1987 the judgment passed by the first appellate Court was set aside and the case remanded with the direction to decide it on merits. It is in this situation that the first appeal filed by the defendants came to be heard and ultimately allowed by the first appellate Court resulting in the dismissal of the suit filed by the plaintiff. The property in dispute has been held to be joint of the parties and it has been held mat a decree for exclusive possession of joint land cannot be passed in favour of one co-owner against the others. 4. Parties, here-in-after in this judgment, shall be referred to as plaintiff and defendants though it is the next generation who is now contesting this litigation. 5. It is quite painful to observe that the litigation started between the real brothers and has passed on to next generation. The present suit was filed as back as 1963 and it Has taken almost 35 years and it has not yet seen the end of litigation between the parties. 6. The plaintiff has claimed that he is the exclusive owner of the suit land and residential houses which are raised on s. part of it. The present suit was filed as back as 1963 and it Has taken almost 35 years and it has not yet seen the end of litigation between the parties. 6. The plaintiff has claimed that he is the exclusive owner of the suit land and residential houses which are raised on s. part of it. This land is stated to have been acquired by him way back in the year 1917 under the Nautor grants by three different giants from the erstwhile ruler of Rampur Bushehar State and thereafter by his labour, he has made part of the land cultivable and has also raised houses on a part of the suit land and all this has been done exclusively by him and funds for acquiring this land were arranged only by him. 7. It is further stated by the plaintiff that he remained in exclusive possession of the suit land right upto the year 1954 when the defendants took forcible possession from him in unlawful manner in respect of 54 bighas 5 biswas out of the suit land. It is further stated by the plaintiff that some other area has also been encroached upon by the defendants along with houses and despite protest by the plaintiff, the defendants have not cared to restore back the possession to him and ultimately the present shit stands filed by him. 8. In the three written statements filed by the defendants separately, the assertions made by the plaintiff have been denied. It has been pleaded by them that the plaintiff is not exclusive owner of the suit land and the houses and the property is Joint Hindu Family, property of the parties and the land has been made cultivable by their joint efforts and the houses have also been raised by them out of the joint funds. 9. A further plea has been taken by one of the defendants that there was a family partition between the parties and die suit land fell to their share. A further plea has been plaintiff and the entire property which was held by the parties from different sources came to be partitioned between them. It is further pleaded by them that in the applications which were moved by the plaintiff for the allotment of the land in three parcels, he had himself stated that it was required for the benefit of the joint family. It is further pleaded by them that in the applications which were moved by the plaintiff for the allotment of the land in three parcels, he had himself stated that it was required for the benefit of the joint family. Though the applications were given in his exclusive name and Patts were also granted in the same manner, yet the fact remains that the suit land has been made cultivable by the parties with their joint efforts and construction has been raised with the finances of the joint family property. A plea of adverse possession has also been raised by the defendants. 10. Mr. Bhupender Gupta, learned counsel for the plaintiff, while opening his address of arguments, has taken me to the impugned judgment and decree passed by the first appellate Court and points out that the judgment is based on mis-reading of the evidence and misinterpretation of record. It is said that one grant was made way back on 20.12.1976 B.K. whereas the second grant came to be made soon thereafter on 19.5.1977 B.K. followed by the third grant dated 24.9.1988 B.K. Reference has also been made by the learned counsel to the applications made by the plaintiff and it is sought to be urged that the applications were made by plaintiff Rama Nand and he had only stated that he held very small piece of land and. had big family to support On the report made available by the Revenue Patwari, the application was processed and vide order Ext PAA, the Raja Sahib of Bushehar State made an allotment of 51 bighas 2 biswas of land which was mutated in his favour vide Ext. PB. 11. The copy of the application for the second grant is Ext. PW-10/F. Therein also similar averments are made, that he had a large family and the holding with him was very less. This application was again processed in the same manner and the Revenue Patwari reported that there were 18 members in the family. Report of the Revenue Patwari is Ext. PW-10/D and that of the Kanoongb is Ext.PW-10/G. Recommendation was consequently made for allotment of more land under the Nautor Rules. The Minister of the State vide order dated 29.5.1977 B.K. ordered the grant in respect of 26 bighas 5 biswas and mutation Ext. PEE was consequently sanctioned in his favour. 12. Report of the Revenue Patwari is Ext. PW-10/D and that of the Kanoongb is Ext.PW-10/G. Recommendation was consequently made for allotment of more land under the Nautor Rules. The Minister of the State vide order dated 29.5.1977 B.K. ordered the grant in respect of 26 bighas 5 biswas and mutation Ext. PEE was consequently sanctioned in his favour. 12. Though the application in respect of the third grant is not available on record, yet the report of the Revenue Patwari Ext.PW-10/G states that the applicant has fourteen members who are dependent on agriculture for their livelihood. Vide order dated 24.9.1988 B.K. which is Ext. PFF, the third grant was made in respect of five bighas 7 biswas and mutation was consequently sanctioned which is Ext,, PGG. 13. Mr. Gupta is at pains to contend that right from the date of the three grants, referred to above. Rama nand continued to be recorded as exclusive owner in possession of all the three parcels of land right upto 1952-53. Several Jamabandis of this period have been pressed to bring home the point being agitated. 14. Mr. Gupta then points out that in the written statement filed by defendant No. l. plea of adverse possession has not been raised by him. Even proper pleas in respect of Joint Hindu Family Property and the acquisition of the suit property as such are not specifically pleaded. Learned counsel then points out that in the written statement filed by defendant No.2, this defendant has raised plea of adverse possession without incorporating the ingredients which are necessary to be so pleaded. My attention has also been brought to the -written statement filed by defendant No.3 .wherein he admits the plaintiff to be the exclusive owner of the suit land and in a way, it is sought to be projected that he conceded the claim of the plaintiff. 15. The argument that is being raised is that the pleas taken by all the three defendants in their separate written statements could not be clubbed together and the first appellate Court has committed a mistake by projecting it in the manner as if all the three defendants have raised a common defence. My attention has also been brought to the mutation Ext. My attention has also been brought to the mutation Ext. PCC where it is recorded that the grant was made in favour of Rama Nand on the payment of Nazrana to the ruler, with regard to the mutation in respect of the second grant Ext. PDD, the same is said to have been obtained in lieu of Nazrana. 16. Mr. Gupta further highlights that the residents of the revenue estate felt agitated for the grants made before the Raja of the State and plaint in this respect is Ext. PXX/1. There were certain objections raised on the plaint and the same was found defective and was consequently returned to be re-filed. Ext. PJJ is the order raising objections. It is not known what happened thereafter. 17. Reference is then made to Ext. P-2 Jamabandi of the year 1978-79 where a part of the suit land is recorded as BARANI KARALI AVAL (Rainfed) and a part of it is recorded as BAN JAR KADIM. In the Jamabandi of the year 1925-26 Ext.P.3, the area in respect of cultivable land appears to have been increased to 34 bighas instead of 31 bighas recorded earlier. Position is the same in the Jamabandi Ext. P-4. 18. In Jamabandi Ext.P.5 of the year 1933-34, a house is recorded to have been built which would mean the same was built somewhere in the year 1931-32. In the other Jamabandis, reference to which has been made, i.e. Ext. P-6 to Ext.P-9, the entries are similar and the plaintiff is recorded as owner in possession, it is also not disputed that there was one Khata and one Khatauni in respect of the three allotments which were made in favour of the plaintiff. 19. According to Mr. Gupta, the real trouble started for the first time when in the Jamabandi of the year 1953-54 Ext.P-10 the defendants came to be recorded in possession of 56 bighas 11 biswas of land and the plaintiff is recorded as exclusive owner of 26 bighas 5 biswas only. In the column of rent, it is recorded as "Gair Mouroosi Ba Waja Baradri". 20. Mr. In the column of rent, it is recorded as "Gair Mouroosi Ba Waja Baradri". 20. Mr. Gupta, thus, points out that had there been any partition between the parties as alleged by the defendants, the same should have been reflected in this document under some heading and all the four brothers should have been shown being separately in possession on account of partition but "strangely enough, it is not so. Argument is being raised that why the plaintiff alone has been isolated and shown as separate owner in possession of 26 bighas 5 biswas of land and the other brothers, i.e. the defendants, shown jointly as owners in possession in respect of 56 bighas 11 biswas of land. 21. According to Mr. Gupta, no partition had taken place in the year 1949, as alleged by the defendants, and defendant No.2 has himself stated that no part of the suit land came to be allotted to the plaintiff. It is, thus, being argued that there is contradiction in the statement coupled with the Jamabandis referred to above. 22. Mr. Gupta further contends that the defendants came to occupy the suit land somewhere in the year 1953-54 and ever since the first grant made in the year 1917 AD corresponding to 1978 B.K., the defendants never asserted their rights during this long period and the plaintiff has been dealing with this property exclusively as an absolute owner. Reference is made to Ext.PW-4/B coupled with the statement of the plaintiff as PW-9 that trees were separately sold by the plaintiff and the defendants in respect of the other land which they had inherited from their ancestors and for that purpose separate accounts were maintained. It is also being argued that the first appellate Court has mis-read the statement of the plaintiff as well as the document Ext. PW-6/B. In further support of the argument reliance is being placed on the statement of Shyam Singh, District Forest Officer, examined as PW-4 who has deposed that separate lists in respect of cutting of the trees were prepared by him. One was the exclusive list of the trees belonging to the plaintiff and the other list was joint of the parties. 23. It is further highlighted that plaintiff Rama Nand was paying the land revenue and Lumbardar examined as PW-5 has supported this version. Receipts produced by the plaintiff pertain to his land exclusively. One was the exclusive list of the trees belonging to the plaintiff and the other list was joint of the parties. 23. It is further highlighted that plaintiff Rama Nand was paying the land revenue and Lumbardar examined as PW-5 has supported this version. Receipts produced by the plaintiff pertain to his land exclusively. It is also argued by Mr. Gupta that the word "family" used by the plaintiff in his applications for the grant of land would mean only his family and not joint family comprising of his brothers and their off-spring. It is being argued that the father of the parties was still alive when these grants were obtained and, admittedly, he died somewhere in the year 1937. It was he who was KARTA of the family and the defendants have taken a wrong plea that it was the plaintiff who was the KARTA as he was the eldest son and was more educated. 24. Mr. Gupta contends that, in fact, as per statement of the defendant examined as DW-10, h was he who was managing the affairs of the family as KARTA and the plaintiff had nothing to do as he was away from home being in service. 25. It is being strenuously argued that the defendants on whom the burden lay to prove the joint -ness of the family, have not placed any piece of evidence to show as to from where the nexus of the property came and unless this basic feature is proved by way of evidence, the property acquired by an individual by way of grant from the Government could not be treated as Joint Hindu Family property and the first appellate Court has certainly gone wrong in holding it otherwise. Another argument that is being raised is that the defendants have ied no evidence that any amount was pooled by them or that the plaintiff was having any income from the Joint Hindu Family property. He had in fact paid "Nazrana from his own resources to the Raja and the grants were consequently made in his favour. It is also being argued that the reports made by the Patwari and the Kanoongo favouring the allotment, could not be read as these have not been proved in accordance with the Evidence Act. He had in fact paid "Nazrana from his own resources to the Raja and the grants were consequently made in his favour. It is also being argued that the reports made by the Patwari and the Kanoongo favouring the allotment, could not be read as these have not been proved in accordance with the Evidence Act. These documents have been tendered by the defendant while appearing as his own witness and being in admissible in evidence, no reliance can be placed on such evidence. My attention has also been brought to the notice Ext. PZZ/4 when the plaintiff objected to the raising of construction by the defendants and asserted his rights of exclusive ownership. Admittedly, this notice was never answered by the other side. 26. In the written statement, according to the learned counsel, defendant No.2 asserted that he alone was cultivating the suit land and there is not even a remote suggestion that all the defendants as well as the plaintiff were cultivating the land jointly. 27. Mr. Gupta has further laid great stress on the language of the application made by the plaintiff wherein it is stated "GHAR MEIN AATH DUS ROTI KHANEY WALEY HAIN". It is being high-lighted that all what the plaintiff meant was that in his family there were eight to ten person which would include himself, his wives, children, servants and others also. Ext. PW-4/A is the list of the trees which exclusively belongs to Rama-Nand whereas Ext. PW- 4/D is the list of the trees held jointly by the parties. It is also being high-lighted that the response made by the Patwari and kanoongo Exts. DW- 10/B and Ext DW-10/E have their own interpretation of the word "family as used by them. Mr. Gupta contends that while making an application for such type of grants, there is always a slight exaggeration which would not be taken to mean that the plaintiff had applied for the grant as a member of the joint family comprising of his brothers and other members. 28. An argument is being raised that no inference can be drawn that there was ever any intention on the part of the plaintiff to acquire land for joint family least from the income of the joint family property. 28. An argument is being raised that no inference can be drawn that there was ever any intention on the part of the plaintiff to acquire land for joint family least from the income of the joint family property. Accordingly to the learned counsel, the plaintiff has fully explained in his statement what he exactly meant by the word "family" given in his applications. My attention has also been brought to the statement of PW-6 who is an employee from the firm to whom trees were sold. Accordingly to this witness, price of the trees was paid separately in respect of sole ownership of the plaintiff and the trees from the joint holding of the parties. 29. It is also being high-lighted that the first appellate Court has wrongly made observations that the arbitrators .wrongly sided with the plaintiff. My attention has been brought to the statement of PW-7 Kahan Chand at pages 106 to 108 of the record wherein he has clearly stated that arbitrators were appointed for partitioning the joint properties of the parties and not the property held by the plaintiff in his individual name. It is also being argued that no suggestions were made, to the witnesses that they, were interested in the plaintiff in what manner. 30. One of the arbitrators examined as DW-1 in his cross-examination has also in a way supported the version given by the plaintiff that all the arbitrators did not sign the award. Admittedly, the proceedings of the award were set aside vide order of the Court Ext.-PZZ/3 at page-286 of the record. It is being argued that the first appellate Court has only projected a few lines from the preceding page of this order from page 286 against the plaintiff. It is being argued that the written statement, referred to in this order, has not been placed on record and no adverse inference against the plaintiff, in the given situation, could be drawn against him. 31. It is being said that revenue entries projecting the defendants to be in possession of a part of the suit land could not be taken to mean to be in pursuance to the partition as alleged by the defendants. In the last lines of PW-7 it is clearly stated by him that the partition never reached finality. 31. It is being said that revenue entries projecting the defendants to be in possession of a part of the suit land could not be taken to mean to be in pursuance to the partition as alleged by the defendants. In the last lines of PW-7 it is clearly stated by him that the partition never reached finality. Reference is also being made to the other arbitrator appearing as PW-8 and after having read his statement, it is being argued that the first appellate Court has wrongly held this witness to be interested. 32. Reference has also been made to the statement of Janki Dass that he was managing the affairs of the family and according to Mr. Gupta, it would be he who is to be termed as defacto KARTA and not the plaintiff, as held by the first appellate Court. Cross-examination made by the plaintiff to the statement of defendant appearing as DW-10, has also been high-lighted and it is being argued that the statement of Janki Dass could not be believed that he was unaware of the entire forming revenue record spreading over a long period. 33. I have also been taken to Article 230(3) in respect of Government grants in Hindu Law by Mulla, (Fifteenth Edition) and it is sought to be urged that where property is granted by the Government to a member of the joint family, it would be his separate property unless from the terms of the grahti can be projected that it was intended for the benefit of the family 34. My attention has also been brought to the statement of DW-9 Moti Lal whose statement is appearing at page 86 of the record. He was also one of the arbitrators. He has stated that list was prepared at the time of partition. Individual lands of the parties were exchanged and included in the list Ext. DA. He further goes on to say that in place of individual land, joint land was given in exchange. It may be stated here that the case of exchange has not been pleaded by any of the parties to the suit. During cross-examination, this witness has stated that the land in dispute was never joint nor it was divided. 35. DA. He further goes on to say that in place of individual land, joint land was given in exchange. It may be stated here that the case of exchange has not been pleaded by any of the parties to the suit. During cross-examination, this witness has stated that the land in dispute was never joint nor it was divided. 35. The argument raised from the side of the plaintiff is that there has to be a sufficient nucleus and it has to be proved that out of that nucleus the property which is alleged to be joint family property, was purchased. According to the learned counsel for the plaintiff, it was further sought to be proved that the plaintiff was KARTA of the family and in the present case he could not be termed so when, admittedly, his father was alive at the time of acquisition of the property. 36. It is also being argued that in fact Janki Dass had admitted in his - statement that he was the KARTA and used to look-after the affairs of the family as the plaintiff was away on account of his service in the State. 37. My attention has also been brought to the notice Ext. PZZ/4 at page 288 of the record whereby the plaintiff desired to restrain defendant Janki Dass J from raising any construction over the suit land and asserted his own title. Strangely, no reply was given by the other side to this notice. 38. Mr. Gupta has also cited case law on the doctrine of blending and it is being urged that there was nothing on record to show that the suit property I was thrown by the plaintiff in the common lot or it was ever treated by any act j or conduct of the plaintiff to be joint family property. 39. This judgment need not be burdened with the case law cited as there can be no dispute for this proposition. 40. Mr. M.C. Mandhotra, learned counsel appearing for the defendants/ respondents, in reply has laid stress on the terms of the grant and to further support the plea. 39. This judgment need not be burdened with the case law cited as there can be no dispute for this proposition. 40. Mr. M.C. Mandhotra, learned counsel appearing for the defendants/ respondents, in reply has laid stress on the terms of the grant and to further support the plea. I have been taken through the reports, inquires and the application moved for the grant and it is sought to be urged that the reading of this entire material goes ca to show that the object for taking the grant was for the benefit of the Joint Hindu Family which consisted of the plaintiff and the defendants. Mr. Mandhora has also relied upon the case law on the doctrine of blending. It is sought to be urged that the property was initially acquired as Joint Hindu Family proper. The plaintiff was the only educated person in the family and being an elder brother, was the KARTA as the father of the parties had gone weak and old and could not look-after and manage the affairs of the family. It is further urged by the learned counsel for the defendants that the first appellate Court has gone wrong in rejecting the evidence which had been brought on record from the side of the defendants that the property in question was put in hotchpotch by the plaintiff and eleven persons joined heads to effect partition, separate lists were prepared indicating different parcels of property which were given to the parties separately. According to the learned counsel, this evidence has been wrongly held to be inadmissible for want of registration. 41. Himachal Pradesh Administrative Order 1948 and Schedule mentioning Bushehar State, has been pressed into service to show that the Indian Registration Act did not apply and sub-sections (2) and (3) of Section 1 were omitted from application. It is sought to be urged that the proceedings held by the arbitrators were final and no grievance was raised by anyone to the award made by them and it was in pursuance of the partition award that the parties entered possession of the lands and other allied properties which were allotted to them and it was in sequence of this arrangement that the defendants entered possession of the suit land in the year 1949 itself. 42. 42. Statements of tie witnesses produced on behalf of the defendants, have been high-lighted to show that the construction was raised by the defendants and parties used to live in the residential houses jointly. 43. An alternative argument is also being pressed that once it is accepted that the defendants entered into possession of the suit land in the year 1949, the suit having been brought in the year 1963 and during this period the defendants ripened their adverse possession into one of title and the plaintiff having not pointed out the date on which he was unauthorisedly dispossessed, j was not held entitled to maintain the suit. 44. Mr. Mandhotra has further argued that the plaintiff has not examined himself in affirmative and had given a statement that he would appear in case at a later stage and, thus, the plaintiff, in a way, has failed to prove his case and his statement recorded later cannot be read in affirmative. My attention has been brought to his statement closing his case in the affirmative on 29.5.1965 appearing at page 54 of the record. 45. Interestingly, this objection was taken by the defendants when plaintiff appeared as his own witness and it was objected that he could not be permitted to depose since he had not cared to examine himself in the affirmative. The objection was, however, over ruled. 46. Reference has been made to the application made by the plaintiff for the grant of land wherein he had stated that he had a big family to support aid contiguous land be allotted to him under the Nautor Rules. It is being high lighted that the plaintiff had no issue at that time. He had two wives and again1 married two other women and children were born at a later stage and by "family" he meant the members of the Joint Hindu Family, i.e. the defendants. Reports made by the Kanoongos and the Revenue Patwaris at pages 323 and 327 have been read in further support of these pleas. Mr. Mandhotra further argues that there was no piece of evidence on record to show as to what was the family of the plaintiff Rama Nand in the year 1917 and admittedly he had no issue at that time. 47. Mr. Mr. Mandhotra further argues that there was no piece of evidence on record to show as to what was the family of the plaintiff Rama Nand in the year 1917 and admittedly he had no issue at that time. 47. Mr. Mandhotra further high-lights that from the statements of Ac witnesses the defendant have been able to project mat the plaintiff had been himself accepting it the Joint Hindu Family property and himself put it in the lot to the partition proceedings. These partition proceedings are said to be signed by the plaintiff and he had admitted his signatures on various lists prepared in respect of allotment of the properties to the parties. It is, thus, being high-lighted that there are important admissions in the judicial proceedings made by the plaintiff accepting the property to have been acquired as Joint Hindu Family property and he cannot now be permitted to take U turn that it was his personal property. Reference has been made to Ex DA at page 290, Ext. DD at page 301, Ext. DE at page 303, Ext PF from pages 306 to 309 and Ext. DG at page 310. Ext. DG/1, Ext. DG/2, Ext.DG/3 and Ext. DG/4 are other documents wherein details of the properties allotted are given and in all these documents there is a clause at the bottom (clause 8) to the effect that crops are to be harvested by the parties according to the shares given in the partition proceedings. Interestingly, there is no award as such which can be termed as an award. 48. Mr. Mandhotra further argues that the plaintiff has denied these proceedings and has come out with the version his signatures were obtained on blank papers which was belied by the witnesses who were arbitrators have appeared in the present suit two from the side of the plaintiff and one from the side of the defendants. 49. According to Mr. Mandhotra, these are the admissions, on judicial proceedings and exhibit the act and conduct of the plaintiff to the effect that he accepted the suit property as Joint Hindu Family property and no second opinion can be drawn in the given set of circumstances. Case law has also been cited to stress the value of admission made. 50. While concluding his submissions. Mr. Case law has also been cited to stress the value of admission made. 50. While concluding his submissions. Mr. Mandhotra is at pains to argue that the property was acquired as Joint Hindu Family property; secondly, it was treated as such by the parties and accepted by the plaintiff; and thirdly, that if it is not accepted to have been so acquired or treated, the plaintiff by his act and conduct, put it in the hotchpotch for the purposes of effecting partition between the brothers and the entire property with the parties as inherited from their ancestors alongwith the property in question, was actually partitioned and possessions delivered. 51. As a last resort, a half-hearted attempt has been made to urge that the defendants have completely established on record that they have become owners by way of adverse possession and are entitled to that declaration. 52. Mr. Bhupender Gupta, in rejoinder, contends that the reports made by the Patwaris and Kanoongos in respect of the grant which was ultimately made, could not be read as these are inadmissible in evidence. It is sought to be urged that law of registration applies in the present case and reference has been made to the various provisions contained in the Himachal Pradesh Code for this purpose. It is sought to be urged by Mr. Gupta that it was wrong to suggest that the plaintiff had not led any evidence in the affirmative as documents were tendered and statement of the plaintiff was recorded at page 54 that he closes his case in the affirmative but would appear at a later stage to make his statement as his own witness. Order passed by the Court on September 15, 1964 in this respect is at page 38 of the record. It is further pointed out by Mr. Gupta that this ground was not taken by the defendants in their appeal before the first appellate Court nor this point was urged and the defendants cannot be permitted to raise this objection for the first time in the second appeal before this Court Relying on AIR 1968 SC 1299, (Siromani v. Hemkumar & Ors.), it is sought to be urged that the partition proceedings, even if they are accepted as such, are documents of partition creating right, title and interest and for want of registration, these cannot be looked into. Lastly, Mr. Lastly, Mr. Gupta has urged that the arbitration proceedings were laid challenge by the defendants themselves and were set aside they cannot at least be permitted to say that partition had been carried out and there was valid award made by the arbitrators in this respect 53. After hearing the learned counsel for the parties at length and on careful perusal of the entire record and the impugned judgment, I find that the first appellate Court has certainly gone wrong in setting aside the judgment and decree passed by the trial Court and the appeal deserves to be allowed. 54. At the very outset, it may be observed that it is defendant No. 2, Janki Dass who has contested the claim of the plaintiff. Admittedly, the suit filed by the plaintiff claiming decree for possession stands decreed by the trial Court Defendant No.2 alone laid challenge to the judgment and decree of the trial Court before the first appellate Court. Be that as it may. 55. Both the Courts below have concurrently found that there was no partition between the parties and evidence to that effect led by the defendants has been rejected. Since the point has been agitated before this Court from side of the defendants, it needs to be answered. Reliance in this respect is placed on! Ext. DA to Ext DC, Ext DG, Ext.DG-1 to Ext.DG-3 which are the partition, lists pertaining to the properties which had fallen to the shares of the parties. As discussed above, the parties were to be put in possession after harvesting the crops. No piece of evidence, except oral statements made by certain witnesses, has been brought to my notice that possession was delivered to the parties in sequence of the partition proceedings. 56. On my pointedly asking the learned counsel for the defendants, if has been conceded that no revenue record in respect of the properties held by the parties in other villages has been placed to show that any one of them entered into possession in sequence of the partition proceedings and took over possession of the properties so allotted. Surprisingly, in the Khasra Girdawari Ext. Surprisingly, in the Khasra Girdawari Ext. P-15 which is of the years 1951 to 1954, the change in possession in favour of the defendants is recorded for the first time that too in respect of 56 bighas, 11 biswas out of the suit land and that also jointly in the names of the defendants. Rest of the land is recorded in the ownership and possession of the plaintiff. A further change was made during Kharif 1963 as per Ext P-19 showing Janki Dass, defendant to be in possession of the remaining land. I am unable to agree with the learned counsel for the defendants that the defendants entered into possession of the suit land in sequence of the partition award. It may be stated that there is not such award which can be said to be an award. All what has been placed on record is certain lists of the properties which were allotted or to be allotted to the parties. This partition, as I look at the record, was never acted upon. Had the partition been acted upon, in the normal situation, it would have resulted in die change of entries in the revenue records showing the parties to be in separate possession. 57. Interestingly, it was Janki Dass who filed a suit in the year 1950 stating that no dispute was referred for the purpose of arbitration nor there was any agreement to refer any such dispute. These proceedings were filed against the plaintiff. Ext. PZZ/1, which is at page 283 of the record, is the application which the defendant Janki Dass had filed against the present plaintiff. In that application it is stated by him that there was neither any agreement to refer the matter for arbitration nor it was signed by the parties. It is also said that the arbitrators held a meeting without calling upon the parties. Certain lists were prepared by them and they decided to divide the property according to their own choice. The reference was said to be ab initio void as the points of difference were never noted nor referred to. It was also stated by him that no award had been announced nor any opportunity was given to the parties to produce evidence in respect of their claims. The reference was said to be ab initio void as the points of difference were never noted nor referred to. It was also stated by him that no award had been announced nor any opportunity was given to the parties to produce evidence in respect of their claims. It has also been said that though the arbitrators entered into reference in May, 1949, they were bound to pronounce the award within four months, yet no such award has been made. 58. Janki Dass, defendant further stated in para 5 of this application that the arbitrators were prejudiced against him and he had no faith in them. In the prayer it was stated that the arbitration be superseded, either fresh arbitrators be appointed or the matter be left to be decided by a Court of law. Ext. PZZ/3 is the order passed by the court dated September 24, 1951. 59. The parties led evidence in support and rebuttal of the issue as to whether the arbitrators had announced their award and further whether the application was not competent. It was held that some of the arbitrators prepared list of the properties and the parties were informed of the lot that came to then-shares. All the arbitrators have not signed these lists and the entire proceedings consisted of preparing the lists of the properties only. It is interesting to find that in the order it has been specifically mentioned that the lists have not been produced in the Court nor any effort has been made in that direction. It was consequently held that no award was in fact and even if there be any, the same is not valid. Lastly, it has been held that the arbitration agreement shall cease to have effect with respect to the differences referred. 60. It is really surprising as to how defendant No.2 has now produced this record from his possession. The order has become final and at no stage challenge was made to it by any of the parties. It would, thus, mean that there were neither any proceeding in respect of the partition by the arbitrators nor any award was made. The statements of two arbitrators examined from the side of the plaintiff and one from the side of the defendants also do not inspire confidence and the first appellate court was right brushed aside their evidence as interested. 61. The statements of two arbitrators examined from the side of the plaintiff and one from the side of the defendants also do not inspire confidence and the first appellate court was right brushed aside their evidence as interested. 61. Janki Dass, defendant while appearing as DW-2, has admitted that the application was filed by him and it is he who got the partition set aside. He has, however, further said that this was done at the instance of his son who was his attorney. 62. Even if it is accepted for the sake of arguments that these partition proceedings are admissible in evidence and do not required registration, the view I have taken above after taking into consideration this evidence, does not improve the case projected by the defendants. It can thus safely be held that the partition, as alleged by the defendants, does not stand proved. 63. The question may now be examined with respect to the grants made in favour of the plaintiff. The defendants in their written statements have not denied that these grants were made to the plaintiff. It is sought to be argued that these were granted to him as KARTA of the joint family which consisted of his brothers as well. I have carefully perused the first grant Ext. PAA in respect of 52 bighas 2 biswas followed by mutation Ext. PBB. The second grant is Ext. PDD which is in respect of 26 bighas 5 biswas. Mutation was sanctioned in favour of the plaintiff vide Ext. PEE. The third grant is Ext. PFF in respect of five bighas 7 biswas and Ext. PGG is the mutation. In all these documents the grants were made to the plaintiff and mutations were carried out exclusively in his favour. Admittedly, the father of the parties was alive and for all purposes he would be deemed to be the KARTA of the family and not the plaintiff. The plaintiff, as the evidence projects, remained in service of the State of various places. Janki Dass, defendant had admitted that in fact he was looking after the affairs of the family and the properties. In a way, he too can be termed as defacto KARTA. 64. No reliance can be placed on what was stated by the Revenue Patwaris and the Kanoongos in their reports which were made by them for the grants of land to the plaintiff. In a way, he too can be termed as defacto KARTA. 64. No reliance can be placed on what was stated by the Revenue Patwaris and the Kanoongos in their reports which were made by them for the grants of land to the plaintiff. The property cannot be held to be joint property of the parties simply on the basis of the reports made by these revenue officials. 65. Even in -the suit which was filed by the proprietors of the revenue estate laying challenge to the grant in favour of the plaintiff, he alone was impleaded and the suit was dismissed vide Ext. PJJ. It cannot be said that the defendants were unaware of these proceedings. At no stage they agitated that the property in dispute belonged to them also. 66. There are Jamabandis placed on record right from the year 1978-79 B.K. upto 1949-50 A.D. which are Ext. P-2 to Ext P-9 on record. In all these Jamabandis the plaintiff is exclusively recorded as owner in possession. 67. As per para 230 of the Hindu Law by Mulla (Fifteenth Edition), a grant of the Government land can always be made to a member of the Joint Hindu Family and the said grant has to be treated as his separate property unless otherwise established. 68. Another fact that also cannot be lost sight of is that the parties have been very vigilant of their rights and have been agitating one matter or the other in the courts of law. It simply cannot be believed that the defendants knowing fully well that the grants were obtained for the benefit of the joint-family, remained silent right from 1978 B.K. till 1954 and never cared to notice the entries forming record-of -rights showing the plaintiff as exclusive owner in possession of the suit land. It has already been held that no partition was effected between the parties in the year 1949. At best, it could have been projected as a case of family arrangement or that the arrangement was in the process when defendant Janki Dass rushed to the Court in the year 1950 for setting aside the arbitration proceedings. 69. How and in what manner the defendants entered into possession of a part of the suit land in the year 1954, is not clear. 69. How and in what manner the defendants entered into possession of a part of the suit land in the year 1954, is not clear. The entry in the Jamabandi Ext.D-1 of the year 1953-54 records their possession as "GAIR MOUROOSI" and surprisingly, in the column of rent, it is said "on account of Baradri". There is no reference to any partition. The entry in the Jamabandi came to be so recorded on the basis of Khasra Girdawari prepared on 21.4.1954 where change was recorded for the first time. Khasra Girdawari Ext. P-14 and Ext.P-15 can be read with advantage in this respect. This position continued till 1963 without any change and in Kharif 1963, As per Khasra Girdawari Ext.P-19, Janki Dass is recorded to be in possession of the remaining land. This land was, admittedly, recorded as Banjar earlier. Revenue Patwari, Gobinder Singh has appeared from the side of the plaintiff and has stated that the revenue record comprising Ext. P-l to Ext.P-19 is correct. He has further stated that the land situated in other villages was still in the joint ownership and possession of the parties. It is not disputed that the parties inherited huge chunk of land situated in various revenue estates on the death of their father Kantu Ran and mutations in this respect were sanctioned in favour of the parties. 70. The defendants have placed on record very weak oral evidence to show that the houses were constructed by defendant Janki Dass. The plaintiff immediately having come to know sent a legal notice to him to restrain from raising construction as the property exclusively belonged to him. No reply was sent to this notice which is Ext.PZZ/4 on record. The defendants have, thus, to blame only themselves for having raised construction on the property which never belonged to them. 71. Notice may also be taken of a suit which was filed by Janki Dass in the year 1964. Ext. PZ/4 is the plaint filed in that suit. This suit appears to have been filed as counter-blast to the present suit filed by the plaintiff in the year 1963. There were sold by Rama Nand to a firm M/S Sobha Ram Khazan Singh. Another lot of trees was separately sold which belonged to the parties. Ext. PZ/4 is the plaint filed in that suit. This suit appears to have been filed as counter-blast to the present suit filed by the plaintiff in the year 1963. There were sold by Rama Nand to a firm M/S Sobha Ram Khazan Singh. Another lot of trees was separately sold which belonged to the parties. Prices of the lots were paid to the plaintiff in respect of his trees and to the parties in respect of their joint trees. Ext. PW-4/A and Ext. PW-4/B has been proved on record by Jeet Singh who was examined as PW-6/A. These trees were earlier got marked from the Forest Department. Janki Dass defendant, thus, claimed a share in respect of the price of trees received by the plaintiff on the plea that this was joint property. 72. Apart from this, there are several receipts placed on record by the plaintiff showing that he alone was paying the land revenue in respect of the suit land. In the applications made by the plaintiff Ext. DW-10/A, Ext.DW-10/F and Ext. DW-10/4, all what the plaintiff had stated is that he had a large family and the land be allotted to him under the Nautor Rules. In the orders of grants it is recorded that the lands were granted on payments of Nazrana by Rama Nand, plaintiff. It may also be said that one of the defendants Tara Chand has impliedly admitted the claim of the plaintiff. The plaintiff had clearly mentioned in the applications that he had a large family to support and the present holding with him was insufficient for their maintenance. The plaintiff has explained in his statement that by "family" he meant himself, his wives, servants and not the defendants and their off-spring. Even in the reports made by the Parwaris and the Kanoongos, it is nowhere recorded that the family of the plaintiff and defendants constitution a joint family and the grant was being obtained for the benefit of the parties. 73. The case of the defendants is that the property was acquired from the funds of the nucleus of the joint family property. It was for them to place on record convincing evidence to that effect which they have miserably failed to do. A very nominal price had been paid by the plaintiff by way of Nazrana. 73. The case of the defendants is that the property was acquired from the funds of the nucleus of the joint family property. It was for them to place on record convincing evidence to that effect which they have miserably failed to do. A very nominal price had been paid by the plaintiff by way of Nazrana. The plaintiff was holding a responsible position in the State and also held influence. The payments made were not that big which could not be made by him from his own earnings. There is no evidence from the side of the defendants, in respect of the investment made out of the joint family property. 74. The next submission made from the side of the defendants is that even if the property was initially acquired by the plaintiff, he threw it in the common pool and blended it with the character of the joint family property which was ultimately subjected to partition. 75. Strangely, not even an inch of the property in question fell to the share of the plaintiff, according to the evidence led by the defendants. According to them, he was given lands in other revenue estates, but, strangely, no such evidence has been placed as to what property in which village has been given to the plaintiff and he has been shown to be its exclusive owner in possession. Except the partition-lists, there is no other evidence. I am afraid that oral statements made by the witnesses1 examined by the parties cannot be re-appraised at the stage of second appeal unless it is pointed out that the Courts below have mis-read these statements or mis-construed them. 76. So far as the doctrine of blending is. concerned, there cannot be two different opinions that the property which is acquired by a member of the joint family separately, may, in the given situation, acquire the character and status of joint family property, in case it is established that the person who held this property, threw it in the common pool and had a clear intention of abandoning his exclusive right, title and interest and waives the rights so possessed by him. It is further to be shown that the members of the Joint Hindu Family including the person who has pooled his property and thrown it in the common pool, later treated this property as joint property of the family and produced some evidence from where an inference can be drawn that on account of their act and conduct, the abandonment can be inferred. Simply because one member of the family acts in kindness to the others out of sheer love and affection, such an act of generosity would not and cannot be termed as an abandonment of the separate title or -claim which he exclusively possesses or holds. 77. All what has been brought on record from the side of the defendants against the plaintiff is his act and conduct in throwing the property into a common stock and that two voluntarily at the time of partition. Assuming it to be so, the question that crops up is whether the defendants, particularly Janki Dass, accepted that position and treated it as such. It was Janki Dass who challenged the arbitration proceedings and ultimately got these proceedings set aside, In the judgment, which has attained finality, he invited the observations that the partition was never effected, there was no award and the arbitration proceedings were ab initio void. This means that the parties were put back to square number one. No inference can be drawn that the plaintiff had voluntarily allowed his exclusive property, i.e. one in dispute, to be treated as joint family property, it can hardly be said that he had the intention to blend the property with that colour. 78. Though it has already been said that the statements made by the arbitrators cannot be accepted, yet it cannot be ignored that they have clearly stated that they were appointed to effect partition only with respect to the property which was held by the parties jointly and the plaintiff was claiming the property in dispute as his private property. I have no reason to take a different view than the one arrived at by the trial Court that the alleged partition proceedings were, at best, an arrangement between the parties to avoid a family dispute and the arrangement was put at naught by none else but by Janki Dass, defendant. 79. I have no reason to take a different view than the one arrived at by the trial Court that the alleged partition proceedings were, at best, an arrangement between the parties to avoid a family dispute and the arrangement was put at naught by none else but by Janki Dass, defendant. 79. The defendants have also half-heartedly raised the plea of adverse possession according to them they came to occupy the suit land in sequence of the partition award in the year 1949. This evidence has already been dis-believed. In the Jamabandi Ext. P-10 of the year 1953-54, their possession is recorded as "GAIR MOUROOSI" and column of rent indicates "BAWAJA BARADRI". In the year 1954 they are recorded to be in possession of a part of the suit land and the remaining land was taken possession by Janki Dass, defendant in the year 1963 and immediately thereafter the present suit was filed. No pleas have been taken by the defendants in their written statements specifying the ingredients which are required to be pleaded for the purposes of claiming adverse possession. Both the Courts below have found that the defendants have failed to establish to have become owners by way of adverse possession over the suit land. 80. The first appellate Court has certainly gone wrong in holding that despite the partition having not been effected the parties would be deemed to be co-owners in joint possession of the property and it is Joint Hindu Family property. No reasons have been given to set aside the findings recorded by the trial Court in this respect. The only question that was required to be gone into, in my opinion, was as to whether the grants were obtained by the plaintiff for himself and his family or for the joint family comprising of the defendants as well. The first appellate Court has said unnecessary stress in arriving at a different conclusion solely on the reports made by the Patwaris and Kanoongos. I simply cannot agree with the findings recorded at the end of paragraph 12 that in fact the plaintiff obtained these grants for the joint family which consisted of himself and his brothers. 81. The first appellate Court has said unnecessary stress in arriving at a different conclusion solely on the reports made by the Patwaris and Kanoongos. I simply cannot agree with the findings recorded at the end of paragraph 12 that in fact the plaintiff obtained these grants for the joint family which consisted of himself and his brothers. 81. The first appellate Court has applied two year-sticks, one for accepting the statements of the arbitrators examined by the parties to hold that the plaintiff by his voluntary act put this property into the joint pool, and then discarding these very witnesses as interested in the plaintiff. 82. The first appellate Court has gone wrong in holding that the plaintiff in the suit filed by Janki D ass, defendant had taken the plea that the partition had already been effected and had become final. The first appellate Court, in my view, has projected the conduct of the plaintiff beyond what he had stated and simultaneously, totally ignoring the role played by the defendants in filing various suits and petitions and ultimately getting the proceedings of partition declined as void. The first appellate Court has further wrongly held that the sale of the trees by the plaintiff and exclusively appropriating its money does not show that he was claiming himself to be exclusive owner of the suit land. 83. I cannot refrain from making observations that the defendants in their written statements have not even taken the plea that the property was thrown by the plaintiff in the common hotchpotch and the property ever acquired the status of joint family property on doctrine of blending. I have not been taken through any piece of evidence to show that the plaintiff obtained there grants by projecting himself as the KARTA of the Joint Hindu Family comprising of himself and his brothers. In case the plaintiff has permitted the defendants to derive some benefit out the property, the same cannot be said to be an act on his part to blend his personal property to be Joint Hindu Family property. The plaintiff was put to a searching examination and he nowhere indicated that he ever intended or abandoned his separate claim to the property in question and voluntarily threw it in the common stock with a view to waive his separate rights. 84. The plaintiff was put to a searching examination and he nowhere indicated that he ever intended or abandoned his separate claim to the property in question and voluntarily threw it in the common stock with a view to waive his separate rights. 84. With respect to the arguments raised in respect of admissions, the law on the point is clear that the admission by a party made in a different suit, would be relevant and binding only for the purpose of that suit and could not be treated as an admission so as to be binding in subsequent and separate proceedings. 85. In view of what has been said above, the judgment and decree passed by the first appellate Court are set aside, the judgment and decree passed by the trial Court are up-held and this appeal is allowed. There shall however, be no order as to costs.