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2004 DIGILAW 147 (HP)

Roop Singh v. Shri Wattan Singh

2004-07-12

R.L.KHURANA

body2004
JUDGMENT : R.L. Khurana, J. The present second appeal at the instance of the Plaintiff against the judgment and decree dated 28.9.1996 of the learned Additional District Judge, Shimla, affirming the judgment and decree dated 31.12.1991 of the learned Sub Judge 1st Class (IV), Shimla, stands admitted for hearing on the following substantial questions of law: 1. Whether the property alleged to have been transferred in favour of the Respondent was joint Hindu Family and ancestral property in the hands of late Shri Moti Ram and the Plaintiff had a right in the same by birth? 2. If the property is found to be ancestral, whether there was any legal necessity for transferring the same in favour of the Respondent? 3. Whether the sale in favour of the Respondent was illegal and void for the reason that Shri Moti Ram was of unsound mind and was not competent to execute the sale deed? 4. Whether the Courts below were justified in holding the suit to be barred by limitation? 5. Whether the Courts below have erred In law in not declaring the Plaintiff to be owner of the land by way of adverse possession? 2. Briefly, the facts of the case leading to the present appeal may be thus stated. The Plaintiff filed a suit for declaration and injunction claiming himself to be the owner and in possession of the land located in village Rajhana, Pargana Jajhot and village Pateog, Pargana Jajhot of Tehsil and District Shimla, specifically detailed in the plaint and hereinafter referred to as the land in dispute. It was pleaded that Moti Ram, father of the Plaintiff was the owner of the land in dispute. The Plaintiff and his father constituted a joint Hindu Family. The land in dispute was ancestral in the hands of the deceased Moti Ram, therefore, he could not have alienated the same in any manner. It has come to the notice of the Plaintiff that the deceased on 17.8.1971 had transferred the land in dispute in favour of the Defendant for a consideration of Rs. 10,000/- without any legal necessity. The sale was procured by the Defendant by misrepresentation and fraud. It was also pleaded that the deceased Moti Ram at the time of sale was not possessing a sound mind and was not capable of understanding. 10,000/- without any legal necessity. The sale was procured by the Defendant by misrepresentation and fraud. It was also pleaded that the deceased Moti Ram at the time of sale was not possessing a sound mind and was not capable of understanding. The possession of the land inspite of the sale was never handed-over to the Defendant. In the alternative the Plaintiff asserted his open, continuous and uninterrupted adverse possession over the land in dispute and that he has acquired title thereto. 3. The Defendant while resisting the suit claimed to have validly purchased the land in dispute from the deceased Moti Ram. It was pleaded that Moti Ram possessed a sound disposing mind. Ancestral nature of the land in dispute was denied. The Defendant also denied that the Plaintiff and his deceased father constituted a joint Hindu Family. It was asserted that possession of the land in dispute was delivered to the Defendant and since after the sale he is coming in possession thereof as owner. Objection as to the suit being barred by time was also raised. 4. By way of a counter-claim the Defendant sought an injunction for restraining the Plaintiff from causing any interference in the possession of the Defendant over the land in dispute. In the alternative, in case the Defendant was not found in possession of the land in dispute or a part thereof, relief for possession was prayed for. 5. On the pleadings of the parties, following issues were framed by the learned trial Court: 1. Whether the land in suit is ancestral and coparcenery property qua the Plaintiff and his father as alleged? OPP 2. Whether the Plaintiff is in possession of the land in suit as alleged? OPP 3. Whether the sale-deed in question was got executed by the defendant from the father of the Plaintiff by fraud and misrepresentation as alleged? OPP 4. Whether the Plaintiff is entitled to the relief of perpetual injunction as prayed for? OPP 5. Whether the sale in question was for legal necessity? OPD 6. Whether the Defendant is entitled to the relief of perpetual injunction as prayed for in the counter claim? OPD 7. Whether the Plaintiff is estopped from filing the present suit as alleged? OPD 8. Whether the suit is within limitation? OPP 9. Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction? OPD 10. Whether the Defendant is entitled to the relief of perpetual injunction as prayed for in the counter claim? OPD 7. Whether the Plaintiff is estopped from filing the present suit as alleged? OPD 8. Whether the suit is within limitation? OPP 9. Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction? OPD 10. If issue No. 9 is proved, what is the correct valuation? O.P. Parties. 11. Whether this Court has no jurisdiction to determine the counterclaim? OPP 12. Whether the counter-claim has not been properly valued and Court fee not supplied as alleged? OPP 12-A. Whether the suit is not maintainable? OPD 13. Whether the Plaintiff has become owner of the suit land by way of adverse possession, as alleged? OPP 14. Relief. 6. The learned trial Court answered issues No. 1 to 4 and 7 to 13 in the negative and issues No. 5 and 6 in the affirmative. Consequent upon such findings, the suit of the Plaintiff was dismissed vide judgment and decree dated 31.12.1991. 7. Feeling aggrieved, the Plaintiff went up in appeal before the learned Additional District Judge, Shimla, being Civil Appeal No. 14-S/13 of 1992. 8. The Defendant preferred cross-objections being Civil Appeal No. 26-S/13 of 1992 assailing the findings of the learned trial Court on issues No. 7, 9, 10, 11, 12 and 12-A. 9. Both the appeal and cross-objections have been disposed of by the learned Additional District Judge by the impugned judgment and decree dated 28.9.1996. The learned Additional District Judge while agreeing with the findings of the learned trial Court on all the issues, dismissed the appeal of the Plaintiff as well as cross-objections of the Defendant. 10. Still aggrieved the Plaintiff is before this Court by way of the present second appeal. 11. Taking the substantial question of law No. 4 detailed above first, it is pertinent to note that the two Courts below have non-suited the Plaintiff on the ground that the suit as laid by the Plaintiff is not within time. The two Courts below have come to the conclusion that the suit is governed by Article 59 of the Limitation Act, 1963, which provides for a period of limitation of three years for a suit "to cancel or set aside an instrument or decree or for the rescissions of contract". The two Courts below have come to the conclusion that the suit is governed by Article 59 of the Limitation Act, 1963, which provides for a period of limitation of three years for a suit "to cancel or set aside an instrument or decree or for the rescissions of contract". The period of three years to be reckoned when the facts entitling the Plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 12. Assailing the findings of the learned Courts below, it has been contended on behalf of the Plaintiff that the suit filed by the Plaintiff is for setting aside the alienation of ancestral property made by his father. Therefore, Article 59, Limitation Act, 1963, has no application. The suit would be governed by Article 109 of the Limitation Act, 1963, which provides for a period of limitation of twelve years starting from the date the alienee that is, the Defendant took possession of the property subject matter of alienation. 13. The Plaintiff in paras 1 and 2 of his plaint has averred as under: That Shri Moti Ram deceased the father of the Plaintiff was the owner in possession of the land comprised in khata khatauni No. 7/11 min. 7/8 and 7/9 measuring 50 bighas, l/9th share in the land comprised in khata khatauni No. 8/11 min and 8/10 measuring 34 bighas 11 biswas, 1 /9th share in the land comprising khata khatauni No. 9/12 min. /11, 12, 13 and 14 total measuring 30 bighas and 6 biswas and l/9th share in the land comprised in khata khatauni No. 10/12 min. khatauni No. 15 and 16/14 min. measuring 140 bighas 16 biswas situated in village Rajhana, Pargana Jajhot, Teh. /11, 12, 13 and 14 total measuring 30 bighas and 6 biswas and l/9th share in the land comprised in khata khatauni No. 10/12 min. khatauni No. 15 and 16/14 min. measuring 140 bighas 16 biswas situated in village Rajhana, Pargana Jajhot, Teh. and District Shimla as shown in the Jamabandi for the year 1978-79 and l/9th share in the land comprised in khata No. 3/2, khatauni No. 8, 9/11 min 10/11 min, 11, 12, 13, 14/ 9 and 15/10 measuring in all 89 bighas and 12 biswas, land comprised in khata khatauni No. 4/4, 16, measuring 1 bighas 12 biswas l/18th share in khata khatauni No. 21/20/37, measuring 36 bighas 9 biswas and l/9th share in the land comprised in khata khatauni No. 1/1, 1 and 2 measuring 14 bighas only situated in village Pateog, Pargana Jajhot, Tehsil and District Shimla as shown in the Jamabandi for the year 1978-79 which property had been inherited by the deceased from his father and as such the same was ancestral in the hands of the deceased in which the Plaintiff had a right from his birth and equal share with the deceased. The property being ancestral the deceased had no right to alienate or otherwise transfer the same to any one without the knowledge and consent and concurrence of the other members of the Joint Hindu Family. That the deceased without the knowledge and consent of the other members of the Joint Hindu Family of which the Plaintiff is a member, on 17.8.1971 transferred his entire share in the land mentioned above in para 1 to the Defendant vide registered Will deed which is registered in the office of the Sub Registrar, Kasumpti on 17.8.1971 as document No. 90.71. The said transfer was affected by the deceased without any legal necessity. 14. Article 109, Limitation Act, 1963, reads: Description of suit Period of limitation Time from which period being to run. By a Hindu governed by Mitakshra law to set aside his father's alienation of ancestral property. Twelve years. When the alienee takes possession of the property. 15. The said transfer was affected by the deceased without any legal necessity. 14. Article 109, Limitation Act, 1963, reads: Description of suit Period of limitation Time from which period being to run. By a Hindu governed by Mitakshra law to set aside his father's alienation of ancestral property. Twelve years. When the alienee takes possession of the property. 15. For the application of the above Article, the following four conditions must be fulfilled: (a) The parties must be Hindus governed by Mitakshara law; (b) the suit is for setting aside the alienation by father at the instance of the son; (c) the property in question is ancestral; and (d) the alienee has taken over possession of the property alienated by the father. 16. Article 109, Limitation Act, 1963, corresponds to Article 126 of the old Limitation Act, 1908. Dealing with the scope and applicability of Article 126, Limitation Act, 1908, it has been held by the Punjab High Court in Behari Lal v. Dal Chand and Ors. AIR 1951 P&H 341 that the Article applies to those suits where the alienee from a Hindu father has taken possession and has no application to those where possession has not been taken. In such cases the only right of the son will be to obtain a declaration that the deed is invalid and the limitation prescribed for such a suit would be as prescribed under Article 120, Limitation Act, 1908 (which correspondents to Article 113 of the Limitation Act, 1963). 17. To the similar effect, it has been held in Chintaman Balwant Dharmadhikari Vs. Bhagvan Ganapati Mankeshwar, AIR 1928 Bom 383 Munia Goundan v. Ramasami Chetty AIR 1918 Mad 19 and in Luta Ram v. Shiv Ram AIR 1929 Lah 14. 18. On the other hand, it has been contended by the learned Counsel for the Respondent/Defendant that as per the Plaintiff's own showing in paras 1 and 2 of the plaint (quoted above) he claims himself to be in possession of the land in dispute and that the possession thereof was never delivered to the Defendant under the sale, therefore, Article 109, Limitation Act, 1963 would not be applicable. The suit would be governed either by Article 59 or Article 113 of the Limitation Act, 1963 wherein period of limitation of three years has been prescribed. 19. The suit would be governed either by Article 59 or Article 113 of the Limitation Act, 1963 wherein period of limitation of three years has been prescribed. 19. It is significant to note that though the Plaintiff/Appellant has claimed himself to be in possession of the land in dispute and that the alienee, namely, the Defendant has not taken possession of the same under the sale, the two Courts below on a question of fact, have concurrently held that the Plaintiff is not in possession and that the Defendant is in possession of the land in dispute since after the sale. In view of such concurrent findings on a question of fact, which are not open to challenge in the present second appeal, that the Defendant has come into possession of the land in dispute after the sale. Article 109, Limitation Act, 1963 would be applicable and the present case would not be governed by either Article 59 or Article 113 of the Limitation Act, 1963. 20. Even if Article 109, Limitation Act, 1963, is held applicable, the suit of the Plaintiff would be barred by time. 21. There is no denying that alienation by way of sale to the extent of half share in the land in dispute was made by the deceased Moti Ram in favour of the Defendant by a registered deed dated 17.8.1971 (Ex. P-1). Para 3 of such sale deed records the delivery of possession by the deceased Moti Ram in favour of the Defendant. As pointed out above, the two Courts below have also concurrently held the Defendant to be in possession of the land in dispute since after the sale. Therefore, the period of limitation of twelve years would be reckoned from 17.8.1971, the date of sale and when the possession was delivered by the deceased Moti Ram to the Defendant. 22. The suit has been filed by the Plaintiff on 10.9.1985, that is, after fourteen years from the date the Defendant took possession of the land in dispute. The suit is, thus, on the face of it barred by time. The two Courts below, therefore, have rightly held the suit to be barred by time. 23. 22. The suit has been filed by the Plaintiff on 10.9.1985, that is, after fourteen years from the date the Defendant took possession of the land in dispute. The suit is, thus, on the face of it barred by time. The two Courts below, therefore, have rightly held the suit to be barred by time. 23. In so far as the alternative case of the Plaintiff as to challenge to the sale made by the deceased Moti Ram on the ground that the deceased was not possessed of a sound disposing mind at the relevant time and/or that the sale is bad on account of mis-representation and fraud is concerned, the same would be governed by Article 59 or Article 113 of the Limitation Act, 1963. Under either of these two Articles the suit was required to be filed within three years from the date the facts entitling the Plaintiff to have the sale deed cancelled or set aside became known to him or when the right to sue accrued to him. 24. Though the Plaintiff in para 4 of the plaint has averred that he was not aware of the alienation made by his father and has come to know about the same only in July, 1985, the evidence coming on record shows that he has been contesting the mutation proceedings in the year 1974 qua the sale made by his father. Not only this, he was present on 17.8.1971 before the Sub-Registrar when the sale deed executed by his father in favour of the Defendant was presented for registration and he had opposed such registration. Therefore, it cannot be said that he derived the knowledge of the sale only in July, 1935. He was in the know of the sale since 17.8.1971 and as such a right to sue accrued to him on that day. The suit having been filed beyond the period prescribed under Article 59 or Article 113, Limitation Act, 1963 has been rightly held to be barred by time. 25. He was in the know of the sale since 17.8.1971 and as such a right to sue accrued to him on that day. The suit having been filed beyond the period prescribed under Article 59 or Article 113, Limitation Act, 1963 has been rightly held to be barred by time. 25. Coming to the question of adverse possession as asserted by the Plaintiff, it may be stated that the Plaintiff on the death of his father Moti Ram succeeded to the remaining share of his father in the land in dispute and, as such, he has become a co-sharer alongwith the Defendant in the joint khata, therefore, adverse possession is being claimed by the Plaintiff against a co-sharer. This question in fact no more survives in view of the concurrent findings of the two Courts below holding the Defendant to be in possession of the land in dispute to the extent of the area purchased by him. Even otherwise, the Plaintiff has not been able to make out a case of adverse possession against the Defendant, a co-sharer. The Plaintiff in para 3 of his plaint has merely averred as under: That though the share of the deceased in the land mentioned above was transferred to the Defendant through the sale deed but the possession on the spot was never delivered to the Defendant and the Plaintiff had been in open continuous and in uninterrupted possession of the land without any interference from any side as an owner since 1971 and the possession of the same was never delivered to the Defendant after the execution of the sale deed. The possession of the Plaintiff otherwise on the land has ripen into ownership and the rights of the Defendant, if any, have come to an end with the passage of time. At the moment the Defendant has no existing right, title or interest in the land mentioned above and the Plaintiff is the absolute owner in possession of the same. The plea as raised above by the Plaintiff as to adverse possession does not meet the requirements of law in proving and establishing the ouster of a co-sharer. It has been held by the Hon'ble Supreme Court in Md. Mohammad Ali (Dead) by Lrs. Vs. Sri Jagadish Kalita and Others, (2003) 8 JT 26 that long and continuous possession by itself would not constitute adverse possession. It has been held by the Hon'ble Supreme Court in Md. Mohammad Ali (Dead) by Lrs. Vs. Sri Jagadish Kalita and Others, (2003) 8 JT 26 that long and continuous possession by itself would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer becomes a constructive trustee of other co-sharer and the right of the Appellant and/or his predecessors-in-interest would, thus, be deemed to be protected by the trustees. Possession of a property belonging to several co-sharers by one co-sharer, shall be deemed to be possession on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers. Mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. On the basis of pleadings and evidence coming on the record, the two Courts below have rightly held that the Plaintiff has not acquired title by way of adverse possession. In view of the findings that the suit is not within time, the other questions, on which the present appeal was admitted, have become redundant and need not be gone into. Resultantly, for the foregoing reasons, the appeal is dismissed leaving the parties to bear their own costs.