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2003 DIGILAW 1603 (PNJ)

Sadhu Singh v. Harminder Kaur

2003-11-25

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that plaintiff- respondents are entitled to joint possession of 1/9th share of the suit land. 2. Facts in brief are that one Harminder Kuar D/o Capt. Hazura Singh plaintiff-respondent No. 1 filed a civil suit No. 123 dated 3.6.1976 seeking joint possession of 1/3rd share in the agricultural land measuring 94.16 bighas fully detailed in the heading of the plaint. It was averred that she was born out of the wedlock of Hazura Singh her father and Mohinder Kaur, her mother. Mohinder Kaur died resulting into marriage of Hazura Singh, to one Satwant Kaur, who had two sons namely Harnek Singh and Balinder Singh defendant-respondents No. 2 and 3. Even Satwant Kaur, the step-mother of the plaintiff-respondent No. 1 had died in the year 1960. Hazura Singh also died in 1964. It has further been averred that the amount lying in the banks in the name of Hazura Singh was got released jointly on the basis of a joint succession certificate and the land in the Village Bhutna was partitioned by them. It is claimed that she was entitled to become owner of the suit land, which should have been mutated in favour of all of them in accordance with the provisions of Hindu Succession Act, 1956. However, mutation was sanctioned in the names of the defendant-respondents No. 2 and 3 only and her rights were ignored. The plaintiff-respondent asserted to have become the owner to the extent of 1/3rd share alongwith defendant-respondents No. 2 and 3, who would have got 2/3rd share in the suit land. However, the suit land was sold by defendant-respondents to defendant-appellants for a consideration of Rs. 30,000/- and a mutation in that behalf bearing No. 526 giving effect to the sale deed was attested and sanctioned on 27.9.1967. It was alleged that defendant-respondents No. 2 and 3 had illegally sold and transferred the share of the plaintiff-respondent No. 1 without any authority. It was on the basis of the afore-mentioned averments that joint possession to the extent of 1/3rd share of the suit land was claimed from the defendant-appellants. In the alternative, she claimed refund of her share of sale price amounting to Rs. It was on the basis of the afore-mentioned averments that joint possession to the extent of 1/3rd share of the suit land was claimed from the defendant-appellants. In the alternative, she claimed refund of her share of sale price amounting to Rs. 10,000/- in case defendant-appellants were able to prove that they had acquired perfect title over the land in dispute. The defendant-appellants in their written statement took the stand that plaintiff-respondent No. 1 and defendant-respondents No. 2 and 3 being the daughter and sons of Hazura Singh respectively are born from different mothers. The suit land belonged to Satwant Kaur deceased, who was the mother of defendant-respondents No. 2 and 3 i.e. Harnek Singh and Balinder Singh. Therefore, it was claimed that plaintiff-respondent No. 1 was not entitled to inherit the property left by Satwant Kaur as she was the daughter of Mohinder Kaur and deceased Satwant Kaur was the sole owner of the suit land. It was further asserted that Hazura Singh deceased had no connection whatsoever with the suit land. On the aforementioned basis, it was claimed that defendant-respondents No. 2 and 3 were entitled to sell the land to the defendant-appellants. The following five issues were framed :- "1. Whether the plaintiff is entitled to possession of the land sued for ? OPP. 2. Whether the plaintiff being the daughter of Sh. Hazura Singh deceased from his first wife, is entitled to the land left by Satwant Kaur. If so, how much ? OPP. 3. Whether the suit is within limitation ? OPP. 4. Whether the defendants have become owners of the land in suit by adverse possession ? OPD. 5. Relief." On issues No. 1 and 2, the trial Court held that 1/3rd share out of the property left by Satwant Kaur deceased had devolved upon Hazura Singh, who had died intestate as Satwant Kaur had expired on 15.2.1960. Relying on Section 16(a) of the Hindu Succession Act, 1956, defendant-respondents No. 2 and 3 and Hazura Singh had become owner of the suit land to the extent of 1/3rd. When Hazura Singh died intestate on 6.6.1964, 1/3rd share of Hazura Singh further devolved on the plaintiff-respondent No. 1 and defendant-respondents No. 2 and 3 being his daughter and sons respectively. In this manner, plaintiff- respondent No. 1 was held entitled to 1/9th share in the suit land. When Hazura Singh died intestate on 6.6.1964, 1/3rd share of Hazura Singh further devolved on the plaintiff-respondent No. 1 and defendant-respondents No. 2 and 3 being his daughter and sons respectively. In this manner, plaintiff- respondent No. 1 was held entitled to 1/9th share in the suit land. Therefore, issues No. 1 and 2 were decided in favour of the plaintiff-respondent No. 1 by holding that she is entitled to 1/9th share of the suit land. 3. On issue No. 3, the suit was held to be within the period of limitation on issue No. 4 regarding the adverse possession was decided against defendant- respondents holding that they did not become owner by adverse possession. On appeal, the findings recorded by the learned trial Court were upheld. 4. Mr. Ajay Tiwari, learned counsel for the petitioner has argued that once the title has ripened into ownership on the basis of mutation sanctioned, then the alternative relief claimed in the suit should have been decreed. According to the learned counsel, the defendant-appellants have been continuing in possession by virtue of sanction of mutation in their favour more than 30 years ago and, therefore, their possession may not be disturbed at this stage. In support of his submission, the learned counsel has placed reliance on a judgment in the case of Sardar Amar Singh v. Sardarni Shiv Datt Kaur, 1937 Lahore 890. The learned counsel has further argued that the First Appellate Court has non-suited the defendant-appellant on the preposterous ground that the plea of adverse possession was not taken in the pleadings but there is ample evidence to substantiate that plea. 5. Having heard the learned counsel at a considerable length and perusing the record, I am of the considered view that this appeal is liable to be dismissed because no question of law has been raised warranting interference of this Court under Section 100 of the Code. The question of alternative relief was not pleaded as a ground in the memo of appeal. The learned Additional District Judge while rejecting the argument in para 8 of the impugned judgment has observed as under :- "The second contention has no merit either. Equity does not side with Harnek Singh and Balinder Singh or the defendants No. 3 to 12 who wrongfully sold and purchased Harminder Kaurs share in the land in suit. The learned Additional District Judge while rejecting the argument in para 8 of the impugned judgment has observed as under :- "The second contention has no merit either. Equity does not side with Harnek Singh and Balinder Singh or the defendants No. 3 to 12 who wrongfully sold and purchased Harminder Kaurs share in the land in suit. Even otherwise, the first relief claimed by her is joint possession and there is no ground in appeal that the court should have granted the alternative relief. The relief granted by the trial court is appropriate. There is no merit in the appeal and the same is hereby dismissed with costs." In view of the above, the question of applicability of the ratio of the judgment in Sardar Amar Singhs case (supra) cannot be considered at this stage under Section 100 of the Code. The other argument with regard to adverse possession would also not require a detailed consideration because it was required for the defendant-appellants to prove that their possession of the property was adverse to the plaintiff-respondent No. 1 for the last over 12 years. Even this plea was not raised in the pleadings filed by the defendant- appellants. On account of this reason, the evidence, which might have been led was not even looked into by the Courts below. Once there are no pleadings on the question of adverse possession showing the basic ingredients of Article 65 of the Limitation Act, then such a question cannot be proved by any amount of evidence. Therefore, the second contention also is liable to be rejected. For the reasons recorded above, this appeal fails and the same is dismissed. Appeal dismissed.