Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 31 (PNJ)

Karam Singh v. Baldev Mitter

2005-01-10

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby the suit for possession decreed by the learned Trial Court was dismissed in appeal. 2. The plaintiff has filed a suit for possession of a residential house described as Property No. 107 in Farad Khana Shumari of village Goraya wherein one Dulla was recorded as owner. The plaintiff claimed the possession of the suit property as successor-in-interest of Dulla to the extent to one half share and pleading that the remaining half share vest with the heirs of Nand Singh who were impleaded as defendants No. 3 to 7. It is further the case of the plaintiff that in the year 1960, a partition was effected between the plaintiff and the heirs of Nand Singh wherein the suit property fell to the share of the plaintiff while the heirs of Nand Singh were given other property situated in village Dallewal and in village Goraya. The plaintiff was having family relations with one Khushia Ram who is uncle of defendants No. 1 and 2. As the plaintiff has started living in village Dallewal, Khushia Ram was allowed to live in the suit property about 11 months back to the filing of the suit. After some time Khushia Ram shifted to his residential house but defendants No. 1 and 2 occupied the house which was vacated by Khushia Ram in the absence of the plaintiff and thus, filed suit for possession. 3. The suit was contested by defendants No. 1 and 2 and 6. It was the stand of defendant No. 6 that the plaintiff and Nand Singh were in joint possession to the extent of one fourth share and rest was in joint possession of defendants No. 3 to 10 in a separate written statement, it was the stand of defendants No. 1 and 2 that the suit suffers from mis-joinder and non joinder of necessary parties and that the suit is time barred. Ownership of the plaintiff was denied and it was denied that the said house is part of Khasra No. (Property) 107 and Dulla is not owner of the site in dispute. The defendants alleged that they are owners in possession of the site in dispute. Ownership of the plaintiff was denied and it was denied that the said house is part of Khasra No. (Property) 107 and Dulla is not owner of the site in dispute. The defendants alleged that they are owners in possession of the site in dispute. Alternatively, it was pleaded that the defendants have been in possession right from his father for the last more than 25 years as owners and have also made construction on it and thus, the possession of the defendants over the site in dispute is that of owners, hostile to the rights of the plaintiff and thus, the defendants have become owners of the suit property by adverse possession. 4. The plaintiff appeared as his own witness as PW1 and deposed about the facts of the case as pleaded. PW3 Jagdish Mittar, Sadar Kanungo, Jalandhar was examined who has produced register of Khana Shumari of village Goraya for the year 1848 and Haveli No. 107 is shown to be property of Dulla son of Mella of Goraya. The extract is Ex.PW3/1. Avtar Singh was examined as PW4 who has produced pedigree table prepared at the time of settlement in the year 1885 Ex.P-3. The learned Trial Court found that the plaintiff is owner of the house in dispute as the evidence led by the plaintiff was not rebutted in any manner particularly in respect of Pedigree table of the evidence of ownership of the house produced by the plaintiff. Issue No. 5 in respect of the title of the defendants by way of adverse possession was decided against the defendants after considering the statement of DW-Baldev Mittar defendant as well as his brother Jagdish Mittar DW7 that no title deed of ownership is in possession of the defendants and neither he is in a position to give any document to prove the ownership of the defendants. Both have deposed that they do not know who constructed the house in dispute and that they are in possession of the house in dispute since the time of their father who is still alive but not examined. The Court found that since the claim of the defendants is that of ownership on the basis of title, they cannot claim adverse possession of the house in dispute which requires to be hostile, open and continuous against the true owner and consequently granted decree for possession. The Court found that since the claim of the defendants is that of ownership on the basis of title, they cannot claim adverse possession of the house in dispute which requires to be hostile, open and continuous against the true owner and consequently granted decree for possession. The first Appellate Court reversed the judgment and decree passed by the learned Trial Court primarily relying upon a judgment of this Court reported as Baboor Ram and Ors. v. Smt. Bachni, (1974)76 P.L.R. 444 to hold that an entry in Khana Shumari Register does not carry presumption of correctness and since no other direct evidence has been produced by the plaintiff to prove if Dulla or any of his successors exercised control over the house in dispute or Batna raised construction of the house and that the plaintiff has failed to get the property demarcated therefore, the plaintiff has failed to prove his case that he is owner of the house in dispute. However, the findings of the learned Trial Court on Issue No. 5 were upheld. 5. No doubt, the defendants have led evidence to show that they are in possession of the house in dispute. The earliest document to show possession of defendants No. 1 and 2 is Electricity Bill Ex.DW6/5 dated 25.3.1972. Keeping in view the respective contentions of the parties, the following substantial questions of law arise for the consideration of this Court in this appeal. 1. Whether the plaintiff has proved the ownership in respect of the house in dispute on the basis of Khana Shumari Register Ex.P.3/1 of 1848 supported by oral evidence? 2. Whether the defendants have been able to rebut the evidence of ownership of the plaintiff in respect of the house in dispute? 6. The Khana Shumari Register has been proved by examining PW3 Jagdish Mittar Sard Kanungo, Jalandhar. The plaintiff-appellant is the successor-in-interest of Dulla. The fact remains unrebutted on the basis of Pedigree table Ex.P.3 proved on record. The plaintiff himself has deposed that the property in dispute was owned by Dulla and that he is successor-in-interest of the said Dulla. Khana Shumari Register pertains to 1848 i.e. more than 130 years before the filing of the suit. The Khana Shumari Register has been produced by a revenue official. The said Register has been maintained by revenue officials in discharge of their official duties. 7. Khana Shumari Register pertains to 1848 i.e. more than 130 years before the filing of the suit. The Khana Shumari Register has been produced by a revenue official. The said Register has been maintained by revenue officials in discharge of their official duties. 7. On the other hand, the stand of the defendants No. 1 and 2 in the written statement was that the site in dispute does not form part of Khasra No. 107 (Property No. 107) and that Dulla was never owner of the site in dispute and then have raised a plea of adverse possession. Said plea is, in fact, shows that the defendants have not claimed title in the property either by way of succession, purchase, gift or sale. The defendants only disputed the identity of the property and in the alternative raised a plea of adverse possession. The question which now requires to be examined is whether the evidence led by the plaintiff was sufficient to shift the burden on the defendants to prove that the property in dispute in not the same as mentioned in Khana Shumari Register of the year 1848. The Pedigree table and the oral statement of the plaintiff is sufficient to shift the burden to rebut the presumption of ownership in favour of the plaintiff. 8. The extract of entry from the Khana Shumari Register has been produced by a revenue official. Such register has been maintained by the revenue officials in normal course of duties and that the plaintiff has examined PW3 Jagdish Mittar to produce the register in evidence. The entry in the Register is more than 130 years old. Such old entry is admissible in evidence being more than 30 years old in terms of Section 90 of the Evidence Act. The document has been produced from the custody of the revenue officials as such document was to be maintained by the revenue officials. 9. There is no evidence to rebut the evidence led by the plaintiff to the effect that the property in dispute is property No. 107 owned by Dulla as recorded in Khana Shumari. It may be noticed that the plea of the defendants was of the identity of the property which plea has not been substantiated in any manner. It is also to be noticed that the defendants have raised a plea of adverse possession though in the alternative. It may be noticed that the plea of the defendants was of the identity of the property which plea has not been substantiated in any manner. It is also to be noticed that the defendants have raised a plea of adverse possession though in the alternative. Such plea raised in fact is indicative of the fact that the defendants were not sure of their title and thus, raised a plea of adverse possession without specifically admitting the ownership of the plaintiff. 10. The judgment referred to by the learned First Appellate Court to reverse the finding of the learned Trial Court is clearly distinguishable. That was a case where Khana Shumari Register was taken in evidence in second appeal by the learned Single Judge of this Court. The Letters Patent Bench found that such document has not been sought to be produced in evidence along with an application under Order 41 Rule 27 of the Code of Civil Procedure for permission to lead additional evidence. Such course alone would have afforded opportunity to the appellants as to whether such application should be granted or not? The Court also observed that entry from Khana Shumari Register has not been shown by the learned counsel for the respondents as carrying any presumption of correctness. The fact that Khana Shumari Register is maintained by Revenue Department in the course of its duties was not a fact brought to the notice of the Court nor proved in such manner. Therefore, the findings recorded by the first Appellate Court that the entry in Khana Shumari Register does not carry any presumption of correctness is not tenable in law. 11. Thus, the findings recorded by the first Appellate Court that the findings of learned Trial Court on issues No. 1, 3 and 4 are not sustainable in law are set aside. The plaintiff is proved to be owner of the property in dispute and thus, entitled to seek possession of the same from the defendants. 12. The First Appellate Court has also set aside the finding recorded by the learned Trial Court on issue No. 2 i.e. that there was a partition between the plaintiff and defendant No. 5 and the heirs of Nand Singh. 12. The First Appellate Court has also set aside the finding recorded by the learned Trial Court on issue No. 2 i.e. that there was a partition between the plaintiff and defendant No. 5 and the heirs of Nand Singh. Said question is left open to be decided in appropriate proceedings between the plaintiff and the heirs of Nand Singh as the plaintiff as a co-sharers is entitled to seek possession from the third person for the benefit of all the co-sharers. 13. In view of above, the appeal is accepted and the judgment and decree passed by the learned first Appellate Court is set aside and that of the learned Trial Court is restored except in respect of the finding on issue No. 2 with the liberty aforesaid.