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2003 DIGILAW 1230 (PNJ)

Daulat Singh (Dead) Through Lrs. v. Dilbagh Singh

2003-09-03

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the first appellate court whereby in suit for joint possession was dismissed by the first appellate court in appeal. 2. The plaintiff Daulat Singh filed a suit for joint possession of 11 kanals 17 marlas being one third of 35 kanals 13 marlas of land as described in the jamabandi for the year 1973-74. One Faqiria was owner of the suit land. He died on 3.11.1956 without leaving behind any issue or widow. The plaintiff alleged that after his death Kartara and Sansari sons of Surjan and Smt. Kartari daughter of Surjan entered into possession of the suit land being agnates and heirs of deceased Faqiria. The estate of Sansari has devolved upon Dharam Singh and that of Kartara upon Dilbagh Singh. Smt. Kartari died on 3.1.1978. The plaintiff is her heir on the basis of registered will dated 3.1.1974. Defendants No. 3 to 6 are the purchasers of the land from defendants No. 1 and 2 i.e. Dilbagh Singh and Dharam Singh. 3. Defendants No. 1 and 2 contested the suit alleging therein that the suit is barred by limitation. It is further alleged that the judgment and decree passed by the Sub Judge First Class in civil suit No. 156 of 1968 decided on 26.6.1971 bars the present suit. It has also been alleged that Kartari never became owner of the suit land nor she was ever in possession. It was also denied that she was the heir of Faqiria and that the plaintiff is heir of Smt. Kartari. Defendants No. 3 to 6 claimed that they are the vendee-purchasers for valuable consideration and without notice of the claim of the plaintiff. 4. The learned trial court decreed the suit holding that Smt. Kartari is deemed in law to have entered into possession of the suit land as one of the co-sharers. The learned trial court also held that the plaintiff is proved to be legal heir of Smt. Kartari on the basis of the Will Ex.P1, the execution of which is proved by PW3 Kanwal Singh, a marginal witness and PW2 Gurdev Singh, the scribe of the will. The learned trial court also held that the plaintiff is proved to be legal heir of Smt. Kartari on the basis of the Will Ex.P1, the execution of which is proved by PW3 Kanwal Singh, a marginal witness and PW2 Gurdev Singh, the scribe of the will. The learned trial court also held that the plea taken by defendants No. 1 and 2 in the written statement does not amount in clear terms to a plea of adverse possession. Even if, it is assumed that the aforesaid plea amounts to plea of adverse possession even then there is no evidence on record to show whether at any stage Smt. Kartari who has not been shown to be a literate and vigilant lady and such adverse possession was in the knowledge of the true owner and thus, held that the suit is within the period of limitation. However, under issue No. 9, the learned trial court found that defendants No. 3 to 6 are Harijans whereas the plaintiff and defendants No. 1 and 2 are Jats. It has also been found that the name of Kartari never appeared in the revenue record after the death of Faqiria till 31.3.1977 when the sale deeds were executed and therefore, defendants No. 3 to 6 are vendee-purchasers without notice of the claim of the plaintiff. Consequently, the learned trial court decreed the suit for joint possession except the land comprising in Khasra Nos.32/23/7 and 32/24/7 i.e. the area sold by defendants No. 1 and 2 in favour of defendants No. 3 to 6. It was also found that the area sold shall be adjusted during the partition out of the area falling to the share of defendants No. 1 and 2. 5. The learned first appellate court reversed the judgment and decree passed by the learned trial court holding that Smt. Kartari actually slept in respect of her right for a long period or over 32 years and she took no step to defend her share in the property in dispute left by Faqiria deceased. Sansari and Kartara remained in continuous possession to the exclusion of the plaintiff and their predecessor-in-interest, therefore, the suit is not within the period of limitation and the defendants have acquired title by way of adverse possession. 6. The following substantial question of law arises for consideration of this court in this appeal: 1. Sansari and Kartara remained in continuous possession to the exclusion of the plaintiff and their predecessor-in-interest, therefore, the suit is not within the period of limitation and the defendants have acquired title by way of adverse possession. 6. The following substantial question of law arises for consideration of this court in this appeal: 1. Whether Kartaria co-heir of Faqiria can be deemed to be ousted from possession merely because other co-heirs are in continuous possession of the suit land? 7. The learned counsel for the appellants has argued that after the death of Faqiria on 3.11.1956, civil suit for possession was filed by Bachhitar Singh and others, i.e. sons and daughters of Smt. Rakhi alias Jai Kaur. It was alleged that Jai Kaur was the daughter of Faqiria. The said suit was dismissed and it was held that Kartara and Sansari are legal heirs of Faqiria and entitled to succeed to his estate. Such decree was passed by the learned trial court on 26.6.1971. Thus, on the basis of the decree passed, Smt. Kar-tari who is the sister of Sansari and Kartara is also one of the legal heirs of Faqiria and thus, one of the co-owners along with Sansari and Kartara. As a co-owner, the appellant is deemed to be in possession of the suit land. Mere fact that one of the co-owners was in exclusive possession will not amount to ouster of the plaintiff so as to allow one of the co-owners to raise a plea of adverse possession against the appellants. The learned counsel for the appellants has relied upon Kehar Singh and Ors. v. Dalip Singh and Ors., 1977 P.L.J. 346; Kunjamma Cicily v. Kasim Beevi Sulaikha Beevi, A.I.R. 1969 Kerala 293; Om Parkash and Ors. v. Bhagwan and Ors., A.I.R. 1974 Allahabad 389; Shambhu Prasad Singh v. Most. Phool Kumari and Ors., A.I.R. 1971 S.C. 1337. 8. On the other hand, the learned counsel for the respondents argued that after the death of Faqiria, it is the defendants No. 1 and 2 who entered into possession of the land. They remained in continuous exclusive possession after the death of Faquiria and thus Kartari was ousted from possession and, therefore, the suit for possession at this stage is barred by period of limitation. The learned counsel for the respondents has relied upon Mst. Ralli v. Mst. They remained in continuous exclusive possession after the death of Faquiria and thus Kartari was ousted from possession and, therefore, the suit for possession at this stage is barred by period of limitation. The learned counsel for the respondents has relied upon Mst. Ralli v. Mst. Gurnam Kaur and Ors, A.I.R. 1954 Punjab 14; Nagin-der Singh and Ors. v. Chanan Singh and Ors., 1983 C.L.J. 432; Hazari Mull Jain v. Md. Nazir and Ors. A.I.R. 1973 Patna 92; Darshan Singh and Ors. v. Gujjar Singh, (2002-2)131 P.L.R. 233 (S.C.) and Sardar Amar Singh v. Sardarni Shiv Datt Kaur, A.I.R. 1937 Lahore 890. 9. After hearing the learned counsel for the parties and going through the judgments cited at the bar, I am of the opinion that the findings recorded by the first appellate court that the suit of the plaintiffs is beyond the period of limitation is not sustainable. 10. The suit for possession was filed by Bachittar Singh and others claiming (to be) heirs of Faquiria. Such suit was filed against Sansari and Kartara. The suit was dismissed and it was held that Jai Kaur was not the daughter of Faqiria and as such she is not entitled to succeed to her property and consequently, the suit was dismissed. It is, thus, evident that the possession of the defendants was as legal heirs of Faqiria. Kartari is also one of the legal heirs of Faqira and therefore, even if Kartara and Sansari are in exclusive possession of the suit land still Kartari as a legal heir of Faqiria is a co-sharer and is entitled to succeed along with Sansari and Kartara. 11. In Kehar Singhs case (supra) this Court has held that there cannot be any abandonment of right in such circumstances. Mere inactivity or a passive attitude of a person cannot be interpreted as an act of abandonment. In the said case also one Dalip Singh was adopted son of Sajjan Singh. He filed suit for possession. It was held that the plaintiff and the defendant became joint co-sharers in the ancestral land. The court has relied upon a Division Bench judgment reported as Kanhiya Shanker and Ors. In the said case also one Dalip Singh was adopted son of Sajjan Singh. He filed suit for possession. It was held that the plaintiff and the defendant became joint co-sharers in the ancestral land. The court has relied upon a Division Bench judgment reported as Kanhiya Shanker and Ors. v. Mohabata Sedhu and Ors., (1960)62 P.L.R. 494 to hold that in order to establish abandonment there must be an intentional and voluntary relinquishment of right for good without and further the onus to prove abandonment rests heavily on the person who alleges the same. 12. Learned counsel for the respondents alleged that the mutation of the land after the death of Faqiria was sanctioned in favour of the defendants which is a notice to the entire world. In addition, the plaintiff was not party, therefore, she cannot now claim possession after remaining passive for about 32 years. The said contention of the respondents is not tenable. There is no dispute about the relationship between the parties to the effect that Kartari is the sister of Sansari and Kartara. Faqiria has died on 3.11.1956 i.e. after the commencement of the Hindu Succession Act. Since the civil court in the previous litigation has held that Jai Kaur is not the daughter of Faqiria and dismissed the suit for possession filed by Bachhitar Singh, the property has fallen to the share with his agnates which included Kartari alongwith Sansari and Kartar Singh. She became co-owner of the property on the death of Faqiria i.e. on 3.11.1956. After the death of Faquiria as a co-owner she is deemed to be co-owner in possession of the suit land unless the defendants are able to prove ouster of one of the co-owners of the suit land. There is no such evidence of any hostility of defendants No. 1 and 2 towards Kartari. The only allegation or the evidence that Kartari has never asserted her rights after the death of Faqiria. Therefore, the mere fact that Smt. Kartari was passive in propagating her rights will not amount to her ouster from the estate of Faqiria. This court has held in Kehar Singh and others case (supra) to the following effect: "9. Apart from the above, what has to be noticed here is that the defendants have virtually admitted that the plaintiff-respondent was a co-sharer with them in the property situated at village Longowal. This court has held in Kehar Singh and others case (supra) to the following effect: "9. Apart from the above, what has to be noticed here is that the defendants have virtually admitted that the plaintiff-respondent was a co-sharer with them in the property situated at village Longowal. Inevitably, the same result would follow by the rule of succession as regards the other chunk of Joint property in village Mauran. The plaintiff-respondent was, therefore, equally a co-sharer in the said land and that being so he must be deemed to be in joint possession with the defendants. It is settled law that the possession of one co-sharer is the possession of all. In such a situation the giving and taking of batai loses its significance because the possession of the defendants must be equally deemed to be the possession of the plaintiff. This position could only be dislodged if a positive plea of adverse possession had been taken on behalf of the defendants and conclusively established on the file. Far from it being so it is significant to note that the defendants had not even pleaded any adverse possession in their written statement. 13. In Om Parkash and others case (supra), the Division Bench of Allabahad High Court has held that mere fact that the name of the brother is mutated in the records and his receiving of rents etc. does not prove open, hostile act against the co-shares. Similarly in Shambhu Prasad Singhs case (supra) the Supreme Court had the occasion to consider the plea of adverse possession against a co-sharer. 14. It has been held that mere exclusive possession of one-co-sharer even though he enjoys all the profits will not amount to an ouster of the other co-sharer not in possession unless there was evidence to establish that the co-sharer in possession had asserted open hostile title and based his exclusive possession thereon. 15. Similarly in Kunjamma Cicilys case (supra) Full Bench or Kerala High Court has held that not merely by any secret hostile animus of one on the co-heirs of his part cannot render his possession adverse to the derogation of other co-heirs of his title. It was held to the following effect: "One co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. It was held to the following effect: "One co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. In order to establish adverse possession on the part of the one co-heir as against another it is not sufficient to show that one of them is in sole possession and enjoyment of the profits of the property. Ouster of the non-possession co-heir by the co-heir in possession who claims his possession to be adverse should be made out. For this, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one co-heir to the knowledge of the other, the burden of making out such ouster being on the person claiming to displace the lawful title of a co-heir by his adverse possession." 16. To controvert the plea of the plaintiffs, the learned counsel for the respondent has referred to the various judgments as mentioned above. In Hazari Mull Jains case it has been held that whether ouster has been proved to the knowledge of one or else would depend upon the facts and circumstances of each case. In Naginder Singh and others case (supra) the dispute was not between the two co-sharers. Therefore the said judgment is clearly distinguishable and not applicable to the facts of the present case. In Mst. Rallis case, it was found that under customary law, Gurnam Kaur entered into possession of the property as sole heir to the exclusion of everyone else including Ralli and her adverse possession began. It is further held that the said argument is based upon assumption that Ralli was not heir at all. Even the said case is distinguishable on facts. In Sardar Amar Singhs case (supra), Single Judge of Lahore High Court held that removal of the name of the absentee co-sharers from revenue records at instance of other co-share in possession amounts to ouster and commences adverse possession of co-shares in possession even if no notice of removal is sent to the absentee co-sharer. It was further held that non-partition in rents and profits for a very long time may justify an inference of ouster. 17. It was further held that non-partition in rents and profits for a very long time may justify an inference of ouster. 17. In Darshan Singh v. Gujjar Singh, (2002-2)131 P.L.R. 233 (supra), the Honble Supreme Court found that plea of ouster tenable as the owner was convicted in a murder case. He absconded. Adopted son of brother took possession by virtue of a decree of the court. It was held that mere mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is clear declaration that the tile of other co-sharers was denied. The said finding, in fact, runs counter to the argument raised by the defendants. However, in the facts of the case, the court held that the possession of the land in question is in continuity for more than statutory period in publicity and adverse to Jagjit Singh and thus perfected title by adverse possession. This finding recorded by Lower Appellate Court is not justified in law. 18. However, in the present case, there is no evidence of any ouster to the knowledge of Kartari, the co-sharer. On fact, the defendant has not even taken a plea that their possession is adverse to that of kartari. It is only alleged that Kartari never entered into possession of the suit land after the death of Faqiria, Mere fact that she never entered into the land does not prove that Kartari was ousted from possession as one of the legal heirs of Faqiria. Therefore, in view of the judgment relied upon by the learned counsel for the appellants, and in view of the judgment of the Honble Supreme Court in Darshan Singh and others case (supra), mere fact that the mutation was entered in the name of the defendants will not amount to ouster of the plaintiff so as to defeat her claim for possession. Thus, the question of law is answered in favour of the plaintiff that there was no ouster of the plaintiff from possession by the defendants. Consequently, the appeal is allowed and the judgment and decree passed by the learned first appellate court is set aside and that of the trial court is restored.