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2003 DIGILAW 1429 (PNJ)

Kulwant Singh v. Phula Singh

2003-10-15

SATISH KUMAR MITTAL

body2003
JUDGMENT Satish Kumar Mittal, J. - This is plaintiffs Regular Second Appeal against the judgment and decree dated 3.2.1982, passed by the Additional District Judge, Rupnagar, vide which the decree for declaration declaring him as owner of the Nasban rights in respect of the garden trees standing in the land in question and a decree for possession of the said property passed in his favour by the trial court has been set aside, and the defendant (respondent herein) has been declared to have perfected his title on the suit property by way of adverse possession. 2. The appellant filed the suit for declaration claiming himself as owner of Nasban rights in respect of the trees standing in the land in question and seeking possession of the said trees on the basis of title. It was alleged that Rattan Lal and Brij Lal residents of Kharar were owners of the Nasban rights, which were purchased by the appellant from them vide registered sale deed dated 19.12.1975 for a consideration of Rs. 1,500/- and he was put in possession of these rights, but subsequently the respondent took possession of the same and claimed himself as owner of the Nasban rights by alleging that he had purchased these rights from one Walaiti Ram, who in turn had purchased the same from Rattan Lal and Brij Lal in the year 1961. 3. The respondent contested the suit. Though it was admitted that the originally the Nasban rights in the trees in question were belonging to Rattan Lal and Brij Lal, but it was alleged that these rights were firstly purchased by one Walaiti Ram of Village Tira and later on from him the respondent purchased the same on 16.9.1961 for a consideration of Rs. 800/-. It was also asserted by the respondent that he was in possession of the suit property for the last more than 12 years without any interruption and his possession had been open, hostile and notorious, hence he had become owner of these rights by way of adverse possession. 4. 800/-. It was also asserted by the respondent that he was in possession of the suit property for the last more than 12 years without any interruption and his possession had been open, hostile and notorious, hence he had become owner of these rights by way of adverse possession. 4. Though initially on 24.7.1978, the suit was filed for declaration and permanent injunction as the appellant claimed himself in possession of the aforesaid Nasban rights, but subsequently after the order of the trial court dated 28.4.1980, vide which it was held that possession of the trees in dispute was with the respondent, the appellant amended his suit and included the relief of possession of the Nasban rights in the disputed trees on the basis of title. 5. On the pleadings of the parties, the following issues were framed by the trial court :- 1. Whether the plaintiff is owner in possession of nasban rights in respect of garden trees standing in the suit land ? OPP 1-A. Whether the nasban rights are not transferable as alleged by the defendant? If so, its effect ? OPD 2. Whether the defendant is the owner of the said rights by adverse possession ? OPD 3. Whether one Walaiti Ram had purchased Nasban rights from Rattan Lal and Brij Lal ? If so when and to what effect ? OPD 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the plaintiff is entitled to the declaration and injunction prayed for ? OPP 6. Whether the plaintiff is entitled to the possession prayed for ? OPP 7. Relief. 6. The trial court decreed the suit of the appellant. The material two issues i.e. issues No. 1 and 2 were decided in his favour. On issue No. 1, it was held that the appellant was the owner of the Nasban rights in respect of the garden trees standing in the suit land. On issue No. 2, it was held that the respondent did not perfect his possession under the ownership by way of adverse possession. The first appellate court set aside the finding of the trial court on issue No. 2 and held that the respondent has proved his adverse possession on the Nasban rights in the trees standing in the land in question. The first appellate court set aside the finding of the trial court on issue No. 2 and held that the respondent has proved his adverse possession on the Nasban rights in the trees standing in the land in question. On the basis of the statements of Phula Singh respondent (DW.1), Chhaju Ram (DW.2) and Surjan Singh (DW.3) and the documents Ex.D1 to Ex.D7, it has been held by the first appellate court that the respondent was in possession of the garden since 1961 and the appellant was never in possession of the same. The aforesaid documents, which are the entries made in the register of the Society of the village known as Anjam Imdad Bahmi Wa Taraqi Abadi Shamilat Society pertaining to the auction proceedings belonging to the shamilat in the village, show that prior to 1963, Walaiti Ram was being given half share of the fruits as Nasban rights and thereafter, the respondent was being given the half share of the fruits being Nasban rights. It was further held that through these rights were purchased by the respondent from Walaiti Ram in the year 1961 vide writing mark B, which was an unregistered document and does not confer any right on the purchaser, yet from 1961 the respondent was in possession of the Nasban rights in the trees standing on the land in question. On the other hand, it was also held that the appellant has failed to prove his possession on the property in question from the date of its purchase on 19.12.1975, as alleged by him in the plaint. It has been found that the appellant was never put into possession of this garden nor he ever remained in possession of the same. In the jamabandi for the year 1972-73, the Nasban rights in the property in question were recorded in the name of Rattan Lal and Brij Lal. Though from Kharif 1974 onwards possession of the respondent had been recorded in the khasra girdawari Ex.P10, but it was found that there was no evidence produced by the appellant showing that Rattan Lal and Brij Lal were ever utilising the fruits from the said garden and they were ever in possession of these Nasban rights after 1961 till the year 1975. On the basis of these documents, it was found that the respondent was in hostile possession of the Nasban rights in the property since 1963 as he was found to have been utilising the half share of the fruits of this garden since 1963. It was also held that possession of the respondent became adverse to the owner since 16.9.1961 when he purchased the Nasban rights in the trees from Walaiti Ram. On the basis of the aforesaid findings, the suit of the appellant was dismissed. 7. Learned counsel for the appellant has raised three submissions before me. Firstly that the finding recorded by the first appellant court that the respondent was in possession of the Nasban rights in the trees in question since 16.9.1961, when he alleged to have purchased these rights from Walaiti Ram, is illegal and against the evidence on record; secondly that even if he was held to be in possession of these rights since 16.9.1961, his possession was not adverse and thirdly that the Nasban rights in the trees being the limited rights only to use the fruits of the trees cannot be converted into ownership by way of adverse possession. 8. I have heard the arguments of learned counsel for both the parties on the aforesaid three contentions and have perused the record of the case. 9. The Nasban right is a right of the planter of the tree in the land of the other by which he requires half right in those trees and half right in their fruits till the life of the trees. In the instant case the fruit trees were planted on the Shamlat Deh of the village by Brij Lal and Rattan Lal and they were having the Nasban rights in question. 10. As far as the first contention of the appellant is concerned, a pure finding of fact has been recorded by the fist appellate court on the basis of the oral as well as documentary evidence, and the same cannot be gone into in the Regular Second Appeal in view of the mandate of Section 100 of the Code of Civil Procedure, as interpreted by the Honble Apex Court in Hari Singh v. Kanhaiya Lal, AIR 1999 Supreme Court 3325 and Kulwant Kaur & Ors. v. Gurdial Singh Mann & Ors., JT 2001(4) SC 158. 11. v. Gurdial Singh Mann & Ors., JT 2001(4) SC 158. 11. Regarding his second submission, learned counsel for the appellant submitted that the respondent was held to be in possession of the Nasban rights in question from 16.9.1961 on the basis of the purchase of these rights made by him from Walaiti Ram vide writing Mark B. Since the said document was unregistered one, therefore, the property in question could not be said to have been validly transferred and that document could not have been taken into consideration being unregistered one, therefore, possession of the respondent cannot be considered to be open, hostile and adverse since 16.9.1961 only on the basis of this document. This submission of the appellants counsel is devoid of merit. Once as a matter of fact, it was found that the respondent was in possession of the Nasban rights since 16.9.1961 claiming himself as owner having purchased the same from Walaiti Ram, who in turn purchased these rights from Rattan Lal and Brij Lal, the open, hostile and adverse possession of the respondent was established. Although an unregistered sale deed is not admissible in evidence to prove title, nevertheless it could be referred to as explaining the nature and character of the possession, henceforth, held by the party, as held in Smt. Khemi Mahatani v. Charan Napit, AIR 1953 Patna 365. Similarly, in Alakhdeo Singh v. The Gaya District Board, AIR 1957 Patna 321, it has been held that where a person enters into possession of property by virtue of an instrument of lease which was void and inoperative, his possession is adverse to the true owner from the very beginning, for the simple reason that the transfer conveyed to him no title. The Honble Supreme Court in State of West Bengal v. The Dalhousie Institute Society, AIR 1970 Supreme Court 1778 has also held that the possession of a person on the basis of an invalid grant, though such possession not being referable to any legal title, but it was prima facie adverse to the legal title of the owner of the land from the very moment the person taking possession of the land under the invalid grant. Thus, I am of the opinion that possession even under an inadmissible document becomes adverse to the true owner. Thus, I am of the opinion that possession even under an inadmissible document becomes adverse to the true owner. The respondent in this case was not in mere possession of the Nasban rights since 1961 but there was something more which was indicator of the ouster of the true owner i.e. he claimed himself to be owner under the document Mark B, though it was unregistered. Thus, I do not find any infirmity or illegality in the finding recorded by the first appellate court to the effect that since 16.9.1961 the respondent was in actual, open and hostile possession of the Nasban rights. 12. In support of his third contention, learned counsel for the appellant relied upon three decisions of the Lahore High Court i.e. Devi Ditta Ram and others v. Waryam, AIR 1929 Lahore, 526, Bij Singh v. Shib Singh and others, AIR 1936 Lahore 669 and Shah Niwaz and another v. Ghulam Shah and others, AIR 1938 Lahore 324. In Devi Ditta Ram and others v. Waryam (supra), it was held that the use of the vacant land or various acts of enjoyment like dumping of rubbish and tethering of cattle would not have been sufficient to prove the adverse possession on the land. In Bij Singh v. Shib Singh and others (supra), it was held that mere cutting of grass or similar acts of user in an area of barren land do not amount to such an exclusive possession as would entitle a person to be given a decree for possession on the basis of his possessory title i.e. by way of adverse possession. In Shah Niwaz and another v. Ghulam Shah and others (supra), it was held that mere construction of a temporary chhappar surrounded by ordinary enclosure of bushes on and lying waste is not sufficient in law to establish adverse possession. 13. In all these aforesaid authorities, the question was regarding the adverse possession of the land on which certain uses were made, as indicated above, but in the case in hand the question is not regarding adverse possession of the land on which the trees pertaining to which the Nasban rights have been claimed are standing. Rather the question is regarding the adverse possession of the Nasban rights in the trees standing on the land. Rather the question is regarding the adverse possession of the Nasban rights in the trees standing on the land. Therefore, all the aforesaid three cases, relied upon by learned counsel for the appellant, are not relevant for the adjudication of the controversy in this appeal. 14. Learned counsel for the appellant has submitted that the Nasban rights in the trees are not permanent one, but these are of temporary nature. Therefore, there cannot be adverse possession of the temporary rights. I do not find any substance in this contention of the learned counsel for the appellant. The Nasban rights in the trees standing on the land in the instant case are of permanent nature. The Nasban rights in the trees in question pertain to the fruit trees. These rights are interest in the immovable property i.e. fruit trees standing on the land. Though Section 3 of the Transfer of Property Act does not define immovable property beyond saying that it does not include standing timber, growing crops or grass. Even under the Transfer of Property Act, the tree attached to earth except standing timber are immovable property, because of Section 3(26) of the General Clauses Act, which provides that immovable property shall include benefit arising out of land and things attached to earth. The word attached to earth has been defined in the Transfer of Property Act as means rooted in the earth, as in the case of trees and shrubs. Thus, keeping in view the aforesaid definitions, the fruit trees standing on the earth are immovable property as has been held by the Honble Supreme Court in Shantabai v. State of Bombay, AIR 1958 SC 532. The Nasban rights in the fruit trees standing on the land is an interest in the immovable property and same can be perfected by way of adverse possession. Article 65 of the Limitation Act provides for possession of immovable property or any interest therein based on title if such suit is filed after 12 years, and when the possession of the defendant becomes adverse to the plaintiff, such suit cannot be decreed. Therefore, this Article not only talks about possession on the immovable property but also about any interest therein based on the title. Thus, I do not find any force in the third contention of the learned counsel for the appellant. 15. Therefore, this Article not only talks about possession on the immovable property but also about any interest therein based on the title. Thus, I do not find any force in the third contention of the learned counsel for the appellant. 15. For the reasons record above, I do not find any merit in this appeal and same is hereby dismissed. 16. No order as to costs. Appeal dismissed.