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2007 DIGILAW 1144 (PNJ)

Naranjan Singh v. Bachittar Singh

2007-05-15

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - This regular second appeal has been filed against the judgments and decrees passed by the learned courts below decreeing the suit filed by the plaintiff-respondents for possession of 101 kanals 9 marlas of land being one third share of 304 kanals 7 marlas situated in village Kauni Tehsil and District Faridkot. 2. The plaintiffs claimed that they are sons of Bhagwan Kaur alias Bhagni alias Bhagan who was the daughter of Sobha Singh son of Gurdit Singh, landowner/proprietor of village Kauni. It was claimed by the plaintiffs that in the Jamabandi for the year 1951-52 of village Kauni, Sobha Singh was owner in possession to the extent of half share along with Sawan Singh and Sucha Singh who had other half share in 431 kanals 3 marlas of land. Sobha Singh is stated to have died on 5.11.1953 leaving behind his daughter Bhagwan Kaur alias Bhagni alias Bhagan as his sole heir to his estate. Share of Sobha Singh used to be cultivated by Sucha Singh and Sawan Singh on Batai and after the death of Sobha Singh tenants paid Batai to Bhagwan Kaur alias Bhagni alias Bhagan. On the death of Sawan Singh, his estate was inherited by his brother Sucha Singh. It was claimed that before consolidation share of Bhagwan Kaur was cultivated by Sucha Singhto the extent of half share, and Arjan Singh, Nazar Singh and Gujjar Singh remaining half share under her. It was further claimed that during consolidation both lines got the land separated. It was claimed that share of Sobha Singh during consolidation was allotted to Sucha Singh and remaining half share, out of share of Sucha Singh was allotted to Gujjar Singh, Arjan Singh and Nazar Singh and was amalgamated with original holding. It was further claimed that in spite of allotment Sucha Singh, Gujjar Singh and Arjan Singh and Nazar Singh continued paying Batai to Bhagwan Kaur alias Bhagni alias Bhagan. Sucha Singh is stated to have died on 2.11.1965 without any issue and the land devolved upon his sister Mst. Sama Kaur who also died on 15.11.1965 and therefore, defendants Dogar Singh and Niranjan Singh started cultivating the share of Bhagwan Kaur alias Bhagni alias Bhagan and even paid Batai to her till her death. After her death Batai was paid to the plaintiffs. Sama Kaur who also died on 15.11.1965 and therefore, defendants Dogar Singh and Niranjan Singh started cultivating the share of Bhagwan Kaur alias Bhagni alias Bhagan and even paid Batai to her till her death. After her death Batai was paid to the plaintiffs. Nazar Singh died on 29.6.1970 without leaving any issue while, Gujjar Singh died on 27.1.1972 without any issue. Accordingly, their share devolved upon Sama Kaur who has been paying Batai to the plaintiffs. It was further pleaded that Dogar Singh and Niranjan Singh were in possession of 244 kanals 9 marlas of land while Arjan Singh was in possession of 137 kanals 9 marlas of suit land. Land measuring 244 kanals 9 marlas was said to be in possession of Dogar Singh and Niranjan Singh. It was claimed that the plaintiffs were entitled to 110 kanals 9 marlas of land out of 137 kanals 9 marlas in possession of Arjan Singh. They also claimed 67 kanals 9 marlas of land as sole heirs of their mother Bhagwan Kaur alias Bhagni alias Bhagan. It was claimed that since the defendants refused to make payment of Batai to the plaintiffs after the death of Gujjar Singh, the plaintiffs approached the court for possession of the land on the basis of title. 3. The suit was contested by the defendants. It was pleaded that Bhagwan Kaur alias Bhagni alias Bhagan daughter of Sobha Singh and pedigree table as set up by the plaintiffs was also admitted to be correct. However, it was denied that the plaintiffs were the sons of Bhagwan Kaur. It was claimed that they were not related to Bhagwan Kaur. In the written statement, it was admitted that Sobha Singh was owner of one half share and Sawan Singh and Sucha Singh another half share of 431 kanals 3 marlas of land. It was claimed that Sobha Singh was survived by his daughter Bhagwan Kaur alias Bhagni alias Bhagan. It was also pleaded that Sawan Singh, Sucha Singh and Gujjar Singh and Nazar Singh had died. It was also admitted that Sama Kaur had also died. However, dates of death were denied for want of knowledge. Issuance of letter of allotment during consolidation proceedings was also admitted in lieu of the original holding of Sobha Singh, Sawan Singh and Sucha Singh. It was claimed that the defendants have inherited the property from Sobha Singh. It was also admitted that Sama Kaur had also died. However, dates of death were denied for want of knowledge. Issuance of letter of allotment during consolidation proceedings was also admitted in lieu of the original holding of Sobha Singh, Sawan Singh and Sucha Singh. It was claimed that the defendants have inherited the property from Sobha Singh. The payment of Batai by the defendants or their predecessors-in-interest was also denied. It was claimed that nobody recognised Bhagwan Kaur alias Bhagni alias Bhagan as heir of Sobha Singh. It was claimed that the defendants were Sidhu Jat Sikhas governed by customs in the matter of acquisition of property and the suit land being of ancestral nature Arjan Singh defendant No. 1, Gujjar Singh and Sawan Singh along with Nazar Singh succeeded the land in dispute as heirs of Sobha Singh as sons of his real brothers Jodh Singhand Hira Singh. It was claimed that the land was of occupancy tenancy and according to the custom applicable to the parties as well as Dastur-ul-Amal of Faridkot State and Section 59 of the Punjab Tenancy Act, the only male collaterals of the last male holder inherited his property. It was further claimed that as Bhagwan Kaur alias Bhagni alias Bhagan was married before the death of Sobha Singh she was not his heir. It was also claimed that Dogar Singh and Niranjan Singh sons of Sama Kaur represent the line of Hira Singh, Arjan Singh defendant No. 1 represents the line of Jodh Singh. It was claimed that the defendants were in possession of the land as owners and heirs of Sobha Singh. They also claimed to have become owners by way of adverse possession. It was also claimed that matter of inheritance of Sobha Singh stood decided by the civil court on 5.11.1955 and therefore, the suit was barred by the principles of res judicata. 4. In the replication, averments made in the plaint were reiterated and on the pleadings of the parties the following issues were framed :- 1. Whether the suit is barred by res judicata as alleged ? OPD 2. Whether the plaintiffs are the sons of Mst. Bhatwan Kaur alias Bhagan daughter of Sobha Singh deceased as alleged ? OPP 3. Whether the land in the hands of Sobha Singh was ancestral as alleged ? OPD 4. Whether Mst. Whether the suit is barred by res judicata as alleged ? OPD 2. Whether the plaintiffs are the sons of Mst. Bhatwan Kaur alias Bhagan daughter of Sobha Singh deceased as alleged ? OPP 3. Whether the land in the hands of Sobha Singh was ancestral as alleged ? OPD 4. Whether Mst. Bhagwan Kaur is the only heir to the estate of Sobha Singh deceased ? OPD 5. Whether the defendants have acquired title in the suit land by adverse possession ? OPD 6. Relief. On issue No. 1, it was held that as Bhagwan Kaur was not a party to the previous suit, the suit filed was not barred by principles of res judicata and therefore, issue No. 1 was decided against the defendants. On issue No. 2 it was held that the plaintiffs by leading evidence in terms of Section 50 of the Evidence Act proved themselves to be the sons of Bhagwan Kaur alias Bhagni daughter of Sobha Singh. Consequently, issue No. 2 was also decided in favour of the plaintiffs and against the defendants. On issue No. 3 it was held that Adna Aala Malkiats were abolished by an ordinance of 1949 which resulted in granting of full proprietorship in favour of Sobha Singh. The trial Court further held that due to promulgation of ordinance of 1949 property in the hands of Adna Maliks became their self-acquired property and in coming to this conclusion reliance was placed on the judgment of this Court in Nachatter Singh and others v. Budh and others, 1971 PLJ 171 and accordingly issue No. 3 was decided against the defendants and it was held that the property was self-acquired and not ancestral. On issue No. 4 the claim of the defendants that succession of Sobha Singh was governed by Dustur-Ul-Amal which excluded daughter from succession could not be accepted in view of Section 3 of Pepsu Ordinance No. XVI of 2005 B.K. 5. Learned Trial Court, therefore, recorded a finding that after promulgation of ordinance all laws and rules, regulations, by-laws and notifications and the provisions having force of law applied mutatis mutandis to the territories of the State. It was held that ordinance came into force on 20.8.1948 and thus, it was held that the succession of Sobha Singh could not be regulated by an absolute law. It was held that ordinance came into force on 20.8.1948 and thus, it was held that the succession of Sobha Singh could not be regulated by an absolute law. Learned court also relied upon the judgment of this court in the case of Bhagat Singh and others v. Smt. Gian Kaur and others, 1976 PLR 472 to hold that daughter was entitled to succeed to self-acquired property of her father as against the collateral. Thus, issue No. 4 was also decided in favour of the plaintiffs. 6. As regards the claim of the defendants that they had acquired ownership by adverse possession was also negatived by recording a finding on appreciation of evidence that the defendants remained continuously in possession after the death of Sobha Singh with allowance of Bhagwan Kaur who was their close relative and being a female and living in another province. It was also held that long possession which is not hostile could not ripen into ownership. Finally, it was held that possession of defendants had not been open, unequivocal and hostile enough so as to be called adverse possession against the true owners. Thus, issue No. 5 was also decided against the defendants and suit filed by the plaintiffs was decreed. The appeal filed against the judgment and decree was also dismissed and the findings recorded by the learned trial Court on all the issues were affirmed. 7. Shri Ashok Singla, Advocate, learned counsel appearing for the appellants contended that the findings of the learned trial court on issue No. 5 cannot be sustained as it was proved on record that the defendants have acquired title by way of adverse possession. In support of this contention, it was urged that Sobha Singh died on 5.11.1953 and the consolidation in the village had taken place in the year 1956. It was claimed that name of Bhagwan Kaur did not appear in the pre-consolidation Jamabandis, Khasra Girdwaris or in the post consolidation Jamabandis and Girdawaris. It was further claimed that Bhagwan Kaur had died in the year 1970 but did not participate in the consolidation proceedings. It was further claimed that the defendants were in continuous possession of the land left by Sobha Singh and of the land carved out in lits lieu, in consolidation ever since the date of death of Sobha Singh i.e. 5.11.1953 up to 20.8.1977 i.e. the date of filing the suit. It was further claimed that the defendants were in continuous possession of the land left by Sobha Singh and of the land carved out in lits lieu, in consolidation ever since the date of death of Sobha Singh i.e. 5.11.1953 up to 20.8.1977 i.e. the date of filing the suit. It was claimed that no rent or Batai was paid and therefore, their possession was adverse/hostile. It was also claimed that the suit was time barred. It was also argued by the learned counsel for the appellants that the defendant- appellants were holding the suit land by way of acquisition on the death of Sawan Singh, Sucha Singh, Sama Kaur, Nazar Singh and Gujjar Singh. According to the learned counsel for the appellants, this fact was admitted in the plaint. 8. The submission of the learned counsel for the appellants was that open ouster of Bhagwan Kaur and her sons for more than 12 years prior to the institution of the suit clearly proves that the suit was time barred and adverse possession of the appellants had matured into ownership. It was next contended by the learned counsel for the appellants that otherwise also, the land even after amalgamation during consolidation in the year of 1956, was shown in the revenue record as to be owned and possessed by the defendants. Bhagwan Kaur and the plaintiffs never came into possession of estate of Sobha Singh in any manner. Otherwise also, the land is situated at village Kauni, District Muktsar and Bhagwan Kaur and her sons/plaintiffs are residents of Rajasthan. If either Bhagwan Kaur or her sons were aggrieved from the adverse entries in the revenue record which came into existence in 1956 that too after all kind of publications etc. of the consolidation proceedings and repartition proceedings, then Bhagwan Kaur could have instituted the suit within 3 years under Section 45 of the Punjab Land Revenue Act from the date of said adverse entries but no such suit was instituted. Article 58 also prescribed the period of 3 years for seeking declaration. The present suit is nothing except to indirectly seek declaration that the entries showing defendants as to be owners in possession are wrong. Article 58 also prescribed the period of 3 years for seeking declaration. The present suit is nothing except to indirectly seek declaration that the entries showing defendants as to be owners in possession are wrong. Bhagwan Kaur died in 1970 and even her sons/plaintiffs silently waited for seven years to institute the suit on 20.8.1977 and taking the matter from any angle, the suit of the plaintiffs is not within limitation and it is well settled law that as per Section 3 of the Limitation Act, plaintiffs are to prove their suit to be within limitation irrespective of the fact that limitation is set up as a defence or not. 9. Learned counsel further contended that the suit of the plaintiff is liable to be dismissed being barred by limitation, and in support of this contention placed reliance on Ibrahim alias Dharam Vir v. Smt. Sharifan alias Shanti, 1974 PLJ 469 wherein it was held that if the plaintiff is in possession of the property then he can ignore the adverse entries in the revenue record but if the plaintiff is out of possession the land and adverse entries also thereagainst him in the record then the suit has to be instituted within three years from the adverse entries. 10. Learned counsel for the appellants also argued that the suit was not maintainable as no declaration was sought along with possession. It was next contended that the suit as framed by the appellants was not competent as the defendants-appellants were to be treated as tenants and therefore, the remedy to seek possession was to file a petition under Punjab Tenancy Act. 11. Learned counsel for the appellants by placing reliance on the judgment of Honble Supreme Court in the case of Smt. Chandrakantaben J. Modi and Narendra Jayantilal Modi v. Vadilal Bapalal Modi and others, AIR 1989 SC 1269 contended that as the appellants had proved on record that they came into possession and remained in exclusive possession of a joint family property for more than 12 years then the claim of the appellants for adverse possession was maintainable. In support of his contention that the finding on issue No. 5 of the learned courts below cannot be sustained, reliance was also placed on the judgment of Lahore High Court in Sardar Amar Singh v. Sardarni Shiv Datt Kaur and others, AIR 1937 Lahore 890. 12. In support of his contention that the finding on issue No. 5 of the learned courts below cannot be sustained, reliance was also placed on the judgment of Lahore High Court in Sardar Amar Singh v. Sardarni Shiv Datt Kaur and others, AIR 1937 Lahore 890. 12. Learned counsel for the appellants also placed reliance on the judgment of Kerala High Court in United Mercantile Co. (P) Ltd. v. Commissioner of Income Tax, AIR 1969 Kerala 227, to contend that even if the appellants were to be treated to be co-owners then they continued to be in possession for a long time enjoying the income of the property without sharing with the other co- owners then inference can be drawn that they were (there was ?) ouster of other co-owners not in possession and therefore, issue No. 5 was to be decided in favour of the appellants. 13. Finally, reliance was placed on the judgment of Honble Supreme court in Bondar Singh and others v. Nihal singh and others, 2003(1) PLJ 366 to contend that High Court in the regular second appeals can always reverse the perverse findings of the learned courts below. Learned counsel further contended that as the plaintiffs have remained in possession for sufficiently long period then it has to be held that possession of the appellants was adverse. 14. Learned counsel for the respondent-plaintiffs contended that it is not open to the appellants to agitate the findings on first four issues as the same were not agitated before the learned first appellate court. In support of this contention reliance has been placed on the judgment of Honble Supreme Court in the case of Dr. Mahesh Chand Sharma v. Smt. Raj Kumari Sharma and others, JT 1995(8) SC 466 wherein it has been held as under:- "32. .... The Division Bench has expressly recorded that the decision on the above issues (issue Nos. 1, 2, 3, 4 & 6) are not contested by the parties in this appeal and, therefore, the findings of the learned single Judge are hereby affirmed." Once this is so, it is not open to the third defendant/appellant in these appeals to seek to reagitate the said plea. We cannot allow him to do so. A party who abandons a particular plea at a particular stage cannot be allowed to re-agitate in appeal...." 15. We cannot allow him to do so. A party who abandons a particular plea at a particular stage cannot be allowed to re-agitate in appeal...." 15. Learned counsel for the respondents further contended that the plea of adverse possession is not available to the defendants as they had claimed the ownership of the land directly from Sobha Singh. In this situation long possession and enjoyment of profits of land by the defendant-appellants to the exclusion of plaintiff-respondents could be anything but not adverse possession which could be said to be hostile, open and unequivocal. Such possession was never a denial of title of the plaintiffs or their mother directly or indirectly. It was further claimed that even in the written statement the defendants have claimed that they were direct heirs of Sobha Singh and thus, the plea was inconsistent with the plea of adverse possession. 16. Learned counsel for the respondents thereafter placed reliane on the judgment of this Court in Mt. Bhago v. Deep Chand Harphul and others, AIR 1964 Punjab 187 to contend that mere possession, however, long does not necessarily mean that it is adverse to the true owner. In order to establish adverse possession it has to be proved that the possession was expressly or impliedly denied the title of the true owner. It has further to be proved that the same was adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. It was further contended that in order to succeed it has further to be shown that the possession was open and hostile and enough to be capable of known by the parties being interested in the property. The contention of the learned counsel for the respondents, therefore, was that the plaintiffs failed to prove adverse possession and therefore, the judgments and decrees passed by the courts below need to be upheld. 17. After hearing the learned counsel for the parties, I find the following substantial questions of law arising for consideration in this appeal :- 1. Whether the finding on issue No. 5 cannot be said to be perverse and contrary to evidence on record ? 2. Whether the appellant-defendants were able to establish their possession to be adverse and hostile to true owners ? 18. Whether the finding on issue No. 5 cannot be said to be perverse and contrary to evidence on record ? 2. Whether the appellant-defendants were able to establish their possession to be adverse and hostile to true owners ? 18. In this connection it would be appropriate to notice the findings recorded by the learned trial court on this point which reads as under :- "16. The question, however, is as to what was the nature of long and continuous possession of the defendants over the suit land. The pleaded case of the defendants is that they succeeded to the estate of Sobha Singh as his heirs. It means that from the beginning they never considered Bhagwan Kaur to be the heir of Sobha Singh. Matters do not finish here. Civil litigation vide Ex. P-31 and P-32 will show that the defendants and their predecessors-in- interest made wrong representation to the court that Sobha Singh has died without a widow and issueless. It means that the fact of Sobha Singh having been survived by his daughter Bhagwan Kaur was actively kept concealed by Arjan Singh defendant and the other sons of Jodh Singh and Hira Singh despite the fact that they knew well that Bhagwan Kaur is the daughter of Sobha Singh. Even mutation No. 2774 was, copy Ex. D-4 and Ex. D-8, got entered and sanctioned by the defendants and their predecessors-in-interest on the same day i.e. 29.2.1955. They never disclosed firstly to the civil court and then to the Revenue Officer that Sobha Singhs daughter Bhagwan Kaur was alive and that notice should be issued to her. I cannot agree with the learned counsel for the defendants that his clients did not disclose the existence of the daughter of Sobha Singh for the reasons that they were under a bona fide belief that she was not the heir. Ignorance of law is not an excuse. To conceal a natural heir from the process of law is a fact which amounts to committing fraud not only with the party, but also with the court. It means that Arjan Singh and the predecessor-in-interest of Dogar Singh and Niranjan Singh defendants have protected themselves as the heirs of Sobha Singh by concealing the fact that Bhagwan Kaur was alive in those days. It means that Arjan Singh and the predecessor-in-interest of Dogar Singh and Niranjan Singh defendants have protected themselves as the heirs of Sobha Singh by concealing the fact that Bhagwan Kaur was alive in those days. In other words, they claimed ownership of the land directly from Sobha Singh and not in active denial of the title of Bhagwan Kaur as the natural heir of Sobha Singh deceased. It is true that Nazar Singh, Gujjar Singh and Sucha Singh have died and they have been succeeded by the present defendants, but there is no evidence to show that any notice regarding the sanctioning of mutations of inheritance was ever issued to Bhagwan Kaur or the plaintiffs of this case. Similarly, Bhagwan Kaur and plaintiffs never had any notice of whatever sale might have been made by Sucha Singh etc. After the death of Sobha Singh, there is no evidence about the circumstances in which these sales might have been made by them. A secret sale is nothing except a negation of an intention to treat the possession as adverse to the true owner. A close perusal of the record will show that once having entered possession of the land of Sobha Singh by claiming themselves as directly his heirs, on the basis of civil finding vide Ex. P-31 and P-32 which they obtained by concealment of very existence of Bhagwan Kaur, the defendants and their predecessors-in-interest have done nothing to change their position about the nature of their possession of the disputed land. Such a long possession and enjoyment of profits of the land by the defendants to the exclusion of plaintiffs could be anything but not adverse possession which has to be hostile, open and unequivocal. Such a possession was never, directly or indirectly, in denial of the title of the plaintiffs or their mother. It hardly makes any difference if one of the defendants has stated that no rent would have been paid by them even if rent would have been demanded by the plaintiffs or their mother. As observed earlier, the defendants have remained continuously in possession after the death of Sobha Singh with allowance of Bhagwan Kaur who was their close relative and being a female and living in another province, bothered little about actually taking possession of the land. 17. As observed earlier, the defendants have remained continuously in possession after the death of Sobha Singh with allowance of Bhagwan Kaur who was their close relative and being a female and living in another province, bothered little about actually taking possession of the land. 17. In Prem Singh and others v. (sic) Tei Singh and others, AIR 1950 East Punjab 252, circumstances like long possession, realization of rent and profits, and payment of land revenue, were not considered sufficient to constitute adverse possession. In Kirori Mal Jugal Kishore and another v. Mst. Man Bai and others, AIR 1960 Punjab 485, the question was about the succession of a widow and the plaintiff who was entitled to possession after her death was living in other village. The defendant get his name recorded in the revenue papers by getting the mutation to the plaintiff. It was held that possession of the defendant was not sufficiently, open and hostile so as to amount to adverse possession. In this case, authority of Amar Singh v. Shivdut Kaur, AIR 1937 Lahore 890 was disapproved and Beli Ram v. Munshi, AIR 1934 Lahore 456 in which possession of one co-sharer who get the name of as absentee co-owner removed secrely, was held not to amount to an overt act, was approved. In Mst. Bhage v. Deep Chand Harphool and others, AIR 1964 Punjab 187, it was held that if possession has been obtained on a misrepresentation and the legal formalities relating to mutation of proceedings have not been fully complied with on account of misrepresentation, then the law will not help the wrong deed; more so if the mis-representation concerns the absentee interested party who is a widow living in other village. Mere sanction of mutation at widows back without any notice to her clearly cannot be itself establish the starting point of adverse possession. Mst. Bui v. Gurdip Singh, 1976 PLJ 345 was a case in which the land was jointly owned by Gurdit Singh and Harnam Singh. After the death of Harnam Singh, Gurdip Singh got Harnam Singhs share mutated in his name by representing that Harnam Singh had died without a widow. Mst. Mst. Bui v. Gurdip Singh, 1976 PLJ 345 was a case in which the land was jointly owned by Gurdit Singh and Harnam Singh. After the death of Harnam Singh, Gurdip Singh got Harnam Singhs share mutated in his name by representing that Harnam Singh had died without a widow. Mst. Bui, claiming herself to be the widow of Harnam Singh, claimed the share of her husband by pleading that she was not bound by mutation proceedings as she had no notice and that Gurdit Singh had been paying batai, had stopped making payment of batai to her. Gurdit Singh pleaded in defence that after the death of Harnam Singh, Mst. Bui had contracted a second marriage. The plea of Bui that she was the widow of Harnam Singh succeeded, but her plea that Gurdit Singh was paying batai to her, failed. Gurdit Singhs plea that Bui had contracted second marriage also failed. In the circumstances, Gurdit Singhs plea that he was in possession adversely against Mst. Bui after the death of Harnam Singh was rejected by holding that there was no ouster and that Gurdit Singhs possession was not open and unequivocal and in denial of the title of Bui. Similarly, in Madhab Chandra Barua and others v. Smt. Joymati Kalitani Barua, AIR 1976 Gauhati 10, neither plaintiff nor her widowed mother through whom she claimed title was in actual possession, but possession of suit properties which were for over 20 years in possession of persons who were co-owners with the father, it was held that in the absence of evidence of ouster, defendant could not claim title by adverse possession. The facts of all these cases are akin to the facts of the case in hand. In this case, Arjan Singh and the other sons of Jodha Singh and Hira Singh entered possession by concealing the existence of Bhagwan Kaur and wrongly projecting themselves directly as heirs of the deceased and such a possession was neither open nor unequivocal so as to be in denial of the title of Bhagwan Kaur and the plaintiff. Secretive sale of some land by the defendants after the death of Sobha Singh cannot put the defendants on better footing in as much as the possession of such transferees cannot be treated as adverse against the plaintiffs. Secretive sale of some land by the defendants after the death of Sobha Singh cannot put the defendants on better footing in as much as the possession of such transferees cannot be treated as adverse against the plaintiffs. Some assistance for this proposition can be obtained from an authority in Chander Bhan v. Jai Lal Harphool, AIR 1964 Punjab 435. 18. The authorities cited by the learned counsel for the defendants are clearly distinguishable. In the Privy Council case, one of the heirs of the donor took possession under imperfect gift and subsequently on the death of the donor, such donee became one of his heirs. It was held that possession of such donee started adversely and its nature was not changed by subsequent circumstance of his having succeeded to the estate. In the case of Vellivettummel Sooppi and others, the co-owner in possession and the one not in possession were living in same locality, and in a previous litigation between them, the party not in possession had not claimed the subject-matter of litigation as co-owners. All conduct of the (sic) in possession was notorious enough to fulfil the requirement of adverse possession. It was these particular circumstances which were taken into account along with long user of 36/37 years to find in favour of the plea of adverse possession. In Kunhamine Umma and others v. Special Tehsildar and others, the co-sharer in possession enjoyed income for considerable length of time without sharing it with other co-owner and in reply to a specific notice dated 20.9.1953, had sent a written reply therein, asserting hostile title. In those particular circumstances it was held that along with long user of profits, other circumstances existed to justify the plea of adverse possession. So far as the case of Smt. Samundra Devi v. Chand Singh and others is concerned, plaintiff, who was a co-sharer to the extent of 1/2 share, remained out of the village for about 51 years and her name had been removed not secretly or in clandestine manner. The suit was instituted by the plaintiff after 33 years of the removal of her name from the revenue record and for about 51 years the other co-owner had exclusively remained in possession. In those particular circumstances, the plea of adverse possession was upheld by the court. The suit was instituted by the plaintiff after 33 years of the removal of her name from the revenue record and for about 51 years the other co-owner had exclusively remained in possession. In those particular circumstances, the plea of adverse possession was upheld by the court. No such circumstances are involved in the case in hand which was its own special feature that Mst. Bhagwan Kaur was living in another village at a distance of about 60 miles, that possession was with her cousin brothers who presumably entered with her consent, that such cousins got their names entered in the revenue record by concealing the existence of Bhagwan Kaur from the court and the mutation authorities and that such cousins and the present defendants never denied the title of the plaintiffs, directly or indirectly, until filing of written statement in this suit. Even in the written statement, the defendants have claimed that they are directly the heirs of Sobha Singh. Such a plea is inconsistent with the notion of adverse possession which has to be in denial of the true owner. It would have been a different matter if the defendants had pleaded that Bhagwan Kaur was the heir as the daughter of Sobha Singh, but they took possession in denial of her title and have thereafter continuously remained in possession as owners. The circumstances of this case as they are, I am convinced that possession of the defendants has not been open, unequivocal and hostile enough so as to amount to adverse possession. It is found that the defendants have not acquired title of the land in suit by adverse possession. Issue No. 5 is decided against the defendants." It would be seen from the findings recorded above that in view of the pleadings and the evidence brought on record it was proved that at no stage the defendant-appellants had claimed their possession to be adverse or hostile. The findings recorded by the courts below therefore, are based on appreciation of evidence and pleadings of the parties and cannot be said to be perverse so as to attract the questions of law as framed above. The finding recorded by the learned lower appellate court on issue No. 5 is therefore, affirmed and substantial questions of law as framed are answered against the defendant-appellants. In view of the findings recorded above, the regular second appeal is hereby dismissed. The finding recorded by the learned lower appellate court on issue No. 5 is therefore, affirmed and substantial questions of law as framed are answered against the defendant-appellants. In view of the findings recorded above, the regular second appeal is hereby dismissed. Appeal dismissed.