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2014 DIGILAW 868 (PNJ)

Harpal Singh (Dead) Through Lrs v. Rajinder Kaur

2014-05-16

RAMESHWAR SINGH MALIK

body2014
JUDGMENT : Rameshwar Singh Malik, J. Present appeal, at the instance of an unsuccessful plaintiff, is directed against the impugned judgments and decrees passed by both the learned courts below, whereby suit of plaintiff for declaration with consequential relief of permanent injunction, was dismissed by the learned trial court and was upheld by the learned first appellate court. 2. Brief facts of the case, as recorded by the learned first appellate court in the impugned judgment, are that Harpal Singh had initially filed a suit against his mother Harnam Kaur and his sister Pritam Kaur, but when during the pendency of the suit Harnam Kaur died, the other two sisters i.e. Rajinder Kaur and Balwant Kaur were impleaded as her legal representatives. 3. The suit land was claimed as exclusive ownership of the plaintiff and it was asserted that the mother got mutation of one half share of the land sanctioned in her name on the basis of an alleged gift deed made by the plaintiff in her favour in the year 1955. Harnam Kaur had thereafter executed two sale deeds, on 19th of July, 1978 and 17th of August, 1978 by which she sold her one half share of land to Pritam Kaur a daughter. The plaintiff who had been serving in Madhya Pradesh came to know of the sale-deeds in the year 1979 and thereafter filed the suit for declaration to the effect that he is the owner in possession of the entire land measuring 112 kanals 9 marlas and that he had never gifted one share of this land to Harnam Kaur and the mutation in her favour on the basis of oral gift is illegal and void and not binding upon him. He also sought a permanent injunction for restraining the defendants from interfering with his possession. 4. He also sought a permanent injunction for restraining the defendants from interfering with his possession. 4. Harnam Kaur contested the suit taking a preliminary objection to the effect that the same was not within limitation; that the plaintiff was estopped by his acts and conduct from filing the present suit; that a suit for declaration simpliciter was not maintainable; that the suit was not properly valued for the purpose of court fees and jurisdiction; that the plaintiff was not in possession of the suit land and as such he was not entitled to the permanent injunction and that the suit was not maintainable in view of the provisions of Section 281 of the Income Tax Act, 1966. 5. On merits it was admitted that in the revenue record the plaintiff had been recorded as the owner of the suit land but it was asserted that the real facts were that Hazura Singh, her husband, had another wife namely Basso and the said Basso had been given 4 Killas of land for her maintenance after the death of Hazura Singh and in view of that she became the owner in view of the Hindu Succession Act. It was further stated that Harnam Kaur was given the suit land and the mutation was rightly sanctioned in her favour and the possession was delivered to her and since then she has been in possession of the land as an absolute owner. It was further asserted that the plaintiff had himself appeared at the time of the mutation and got the same sanctioned in the name of Harnam Kaur on his own accord and therefore now he is estopped from challenging the title of Harnam Kaur. It was reiterated that she had become the full owner of the property under a gift which was acted upon as the possession was transferred to her and the oral gift was valid in law. 6. Pritam Kaur also contested the suit on the same grounds and she also pleaded that she was a bona fide purchaser for value without notice regarding the alleged title or interest of the plaintiff. While filing a written statement to the amended plaint, the heirs of Harnam Kaur having been added as defendants No. 1 and 2, Pritam Kaur asserted that Harnam Kaur had become owner by adverse possession. While filing a written statement to the amended plaint, the heirs of Harnam Kaur having been added as defendants No. 1 and 2, Pritam Kaur asserted that Harnam Kaur had become owner by adverse possession. No separate written statement filed by the other legal representatives of Harnam Kaur who were brought on the record. 7. On completion of pleadings of the parties, following issues framed by the learned trial Court:- 1. Whether the plaintiff is owner of the property in dispute? OPP 2. Whether the plaintiff is in possession of the property in dispute? OPP 3. Whether the gift dated 11.6.55 of the property in dispute in favour of the defendant No.1 is void and illegal? OPP 4. Whether the plaintiff is entitled to the injunction prayed for? OPP 5. Whether the suit is within limitation? OPP 6. Whether the plaintiff is estopped by his acts and conduct to file the suit? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 9. Whether the defendant No.2 is bona fide purchaser for consideration without notice and due enquiry? OPD 10. Whether the suit is not maintainable as per Section 281-A of the Indian Income Tax Act? OPD 11. Whether the defendant No.1 was maltreated by the plaintiff and his wife, if so its effect? OPD 12. Whether suit is bad because old khasra numbers are not given in the plaint of the land in question? OPD 12-A If issue No.2 is not proved whether the suit for declaration simpliciter is not maintainable? OPD 12-B Whether Harnam Kaur had become owner of the suit property by adverse possession? OPD 13. Relief. 8. To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing the learned counsel for the parties and going through the evidence brought on record, learned trial Court came to the conclusion that plaintiff has failed to prove his case. Accordingly, his suit for declaration with consequential relief of permanent injunction, was dismissed vide impugned judgment and decree dated 25.4.1984. Feeling aggrieved, plaintiff filed his first appeal, which also came to be dismissed by the learned Additional District Judge, Ludhiana, vide impugned judgment and decree dated 25.10.1985. Hence this appeal. 9. Accordingly, his suit for declaration with consequential relief of permanent injunction, was dismissed vide impugned judgment and decree dated 25.4.1984. Feeling aggrieved, plaintiff filed his first appeal, which also came to be dismissed by the learned Additional District Judge, Ludhiana, vide impugned judgment and decree dated 25.10.1985. Hence this appeal. 9. Learned senior counsel for the appellant submits that findings on issue No.3 were recorded by both the learned courts below that the oral gift deed dated 11.6.1955 in favour of Smt. Harnam Kaur was invalid and did not pass any title in her favour, had become final against the defendants and in favour of the appellant-plaintiff. He relies on para 13 of the impugned judgment rendered by the learned Additional District Judge, to contend that after introduction of Section 123 of the Transfer of Property Act, 1882, an oral gift was of no consequence. This was the reason that it was conceded on behalf of the respondents before the learned Additional District Judge that an oral gift was not valid in the State of Punjab after 1.4.1955. He further submits that mutation dated 9.6.1955 in favour of Smt. Harnam Kaur to the extent of half share of the land measuring 112K-9M, which was admittedly based on the oral gift, would also be of no consequence. Plaintiff Harpal Singh never appeared before any revenue officer nor made any statement for sanctioning the mutation in favour of Smt. Harnam Kaur. Mutation confers no title. He further submits that it was the plaintiff himself who was managing the land and getting it cultivated through different tenants because he himself was sewing at Bhopal. It was the plaintiff who had been paying the land revenue throughout. So far as possession of Smt. Harnam Kaur on the suit land was concerned, it was the permissive possession on the basis of oral gift and mutation. Once it was permissive possession, the same will not ripe into ownership by way of adverse possession, notwithstanding the possession being long and continuous for more than 12 years. Since Smt. Harnam Kaur-defendant was not the owner of the suit land, she could not have passed on, any better title in favour of her co-defendant-respondent-Pritam Kaur. The sale-deeds dated 19.7.1978 and 17.8.1978 suffered by Smt. Harnam Kaur in favour of her daughter Pritam Kaur, would be of no consequence. Since Smt. Harnam Kaur-defendant was not the owner of the suit land, she could not have passed on, any better title in favour of her co-defendant-respondent-Pritam Kaur. The sale-deeds dated 19.7.1978 and 17.8.1978 suffered by Smt. Harnam Kaur in favour of her daughter Pritam Kaur, would be of no consequence. Since both the learned courts below have misdirected themselves, while completely misreading, misconstruing and misinterpreting the true facts of the case as well as the evidence available on record, the impugned judgments and decrees were based on patent illegality and perversity because of which the same were not sustainable in law. He also submits that in fact, since the plaintiff was the only son and his family was living in the village itself with whom Smt. Harnam Kaur was also residing, there was neither any occasion nor any necessity for Harpal Singh-plaintiff to make such statement. The alleged statement was not even signed by plaintiff Harpal Singh. The mutation was the result of misrepresentation. In support of his contentions, he relies on the following judgments:- 1. Bal Kishan v. Om Parkash, 1986 AIR (SC)1952; 2. Vidyawati v. Man Mohan, 1995 AIR (SC) 1653; 3. Md.Mohammad Ali (Dead) by Lrs. v. Sri Jagdish Kalita and others, 2004(1) SCC 271; 4. Chanan Singh v. Pirtam Kaur and another, 1984 AIR (Punjab) 153; 5. Gulwant Singh (Died) through Lrs v. Ajit Singh (Died) through LRs., 2004 (4) RCR (Civil) 389; 6. Rupa Merli and others v. Krupa Padhan and others, the Cuttack Law Times 1979 vol. 48 287 7. State of Punjab and others v. Amandeep Singh Gill, 2013 (3) PLR 193 ; 8. Kodiyan and others v. Karambi, 2007(5) RCR (Civil) 124 and 9. Mehdi Hasan v. Ram Ker, 1982 AIR (Allahabad) 92 Finally, he prays for setting aside the impugned judgments and decrees, by allowing the present appeal. 10. Per contra, learned counsel for the respondent-defendants submits that the mutation No. 430 dated 11.6.1955 was sanctioned by the competent revenue authority in favour of defendant No.l Smt. Harnam Kaur-mother of the plaintiff. This mutation to the extent of 56K-41/2 M was sanctioned in favour of Harnam Kaur on the basis of statement suffered by none-else but plaintiff-appellant Harpal Singh himself, who was also identified by Lambardar of village. This mutation to the extent of 56K-41/2 M was sanctioned in favour of Harnam Kaur on the basis of statement suffered by none-else but plaintiff-appellant Harpal Singh himself, who was also identified by Lambardar of village. Relying on Order 22, Rule 4 (2) of the Code of Civil Procedure ('CPC' for short), learned senior counsel for the respondents submits that since the plea of adverse possession was available but not taken by Smt. Harnam Kaur in her written statement before her death, Pritam Kaur-defendant was very much entitled to take the said plea of adverse possession and she rightly took the same in her amended written statement. He further submits that the moment mutation was sanctioned in favour of defendant No.1-Smt. Harnam Kaur and she entered into the possession, her adverse possession started right from day one. He next contended that although Smt. Harnam Kaur was co-sharer to the extent of half share in the total land, yet she was very much competent to take the plea of adverse possession against her other co-sharer, i.e. Harpal Singh-plaintiff because she was in exclusive, hostile, open, continuous, uninterrupted and long possession for more than 12 years, therefore. she had become owner by way of adverse possession. Since Smt. Harnam Kaur had become absolute owner by way of adverse possession, she was competent to execute the sale-deed in favour of her daughter and her co-defendant-Pritam Kaur. In such a situation, Pritam Kaur was a bona fide purchaser for due consideration. Suit of the plaintiff was rightly dismissed by both the learned courts below, by recording concurrent findings leaving hardly any scope for this Court, to interfere in exercise of its jurisdiction under Section 100 CPC. He also submits that defendants were entitled to take inconsistent plea as well. Since the plaintiff did not challenge the mutation to be a fabricated or a forged document, it was a genuine and valid document. Presumption of truth would be attached with such document. To buttress his submissions, learned senior counsel for the respondents places reliance on the following judgments:- 1. P.Velayudhan v. Kurungot Imbichia Moidu's Son Ayammad, 1990 (Sup) SCC 9; 2. Jaspal Kaur and another v. Kartar Kaur and others, 2013 (4) ICC 657; 3. Balbir alias Balbir Singh v. Om Parkash and others, 2007(4) RCR (Civil) 216; 4. Shri Amar Dass Juneja v. Shri Tej Bhan Dev, 1978(2) RCR (Rent) 263; 5. P.Velayudhan v. Kurungot Imbichia Moidu's Son Ayammad, 1990 (Sup) SCC 9; 2. Jaspal Kaur and another v. Kartar Kaur and others, 2013 (4) ICC 657; 3. Balbir alias Balbir Singh v. Om Parkash and others, 2007(4) RCR (Civil) 216; 4. Shri Amar Dass Juneja v. Shri Tej Bhan Dev, 1978(2) RCR (Rent) 263; 5. Ranganatha Padayachi v. Seethalakshmi, 2006(42) AIC 503; 6. Sumtibai v. Paras Finance Co. Mankanwar, 2007 AIR (SC) 3166; 7. Vidyawati v. Man Mohan, 1995 AIR (SC) 1653; 8. Smt. Ralli v. Smt. Satinderjit Kaur, 1998 (2) RCR (Civil) 114; 9. Bal Kishan v. Om Parkash and another, AIR 1986 SC 1952 ; 10. Baldev Singh and others v. Manohar Singh and another, 2006 AIR (SC) 2832; 11. Bala v. Heera Lal and others, 1989 CCC 266. 12. Mohammad Baqar and others v. Naim-un-Nisa Bibi and others, AIR 1956 SC 548 ; 13. Collector of Bombay v. Municipal Corporation of the City of Bombay and others, AIR (38) 1951 SC 469; 14. Sant Lal Mahton v. Kamla Prasad and others, AIR (38) 1951 SC 477 15. The Commissioner of Income Tax, West Bengal v. Anwar Ali, AIR 1970 SC 1782 ; 16. Nair Service Society Ltd. v. K.C. Alexander and others, AIR 1968 SC 1165 and 17. Bachhaj Nahar v. Nilima Mandal and another, 2009 AIR (SC) 1103. 11. Learned senior counsel for the respondents prays for dismissal of the appeal. 12. In view of the above-said fact situation of the case, following substantial questions of law arise for consideration of this Court:- 1. Whether plea of adverse possession, if not pleaded by deceased, is available to the legal representative? 2. Whether legal representative could have taken the plea not taken by the deceased and courts below has wrongly-interpreted the legal provisions of Order 22, Rule 4 of Code of Civil Procedure? 3. Whether delivery of possession of share and then holding it as adverse possession, is on the face of it illegal because it is physically and legally impossible? 4. Whether plea of bona fide purchase without notice and for consideration was available to daughter of vendor, who knowingly purchased the disputed property? 5. Whether a co-sharer can take the plea of adverse possession against his other co-sharer without pleading complete ouster and exclusive possession to the knowledge of other co-sharer who were out of possession? 6. 4. Whether plea of bona fide purchase without notice and for consideration was available to daughter of vendor, who knowingly purchased the disputed property? 5. Whether a co-sharer can take the plea of adverse possession against his other co-sharer without pleading complete ouster and exclusive possession to the knowledge of other co-sharer who were out of possession? 6. Whether the learned courts below completely misread, misconstrued and misinterpreted the evidence available on record, thereby committing patent illegality in passing the impugned judgments. 13. Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant appeal deserves to be allowed. Since the impugned judgments and decrees have been found to be suffering from patent illegality, the same cannot be sustained. To say so, reasons are more than one, which are being recorded hereinafter. 14. Hazura Singh was owner in possession of land measuring 112K-9M situated in village Harion Kalan, Tehsil Samrala, District Ludhiana. It is also not in dispute that he died some where in 1941-42 and plaintiff Harpal Singh being his only son, inherited the estate of his father Hazura Singh. Mutation was also sanctioned in favour of plaintiff Harpal Singh and he became absolute owner of the entire land measuring 112K-9M by way of inheritance. Plaintiff Harpal Singh was serving in Madhya Pradesh. He went to Bhopal in the year 1955 and remained there up to 1981, as he was posted there on the post of Assistant District Inspector of Schools. However, his family stayed back in village Harion Kalan. It was the pleaded case of plaintiff that he never made any oral gift in favour of his mother Smt. Harnam Kaur-defendant No.1. 15. It was the further pleaded case of the plaintiff-appellant that he never made any statement before the revenue officer, requesting for sanctioning the mutation in favour of Smt. Harnam Kaur to the extent of half share in the land measuring 112K-9M. He also deposed as PW-1 that he had been giving whole of the land measuring 112K-9M on Chhakota or batai, that is different forms of lease. He also deposed in the Court that he himself had been paying the land revenue. He also deposed as PW-1 that he had been giving whole of the land measuring 112K-9M on Chhakota or batai, that is different forms of lease. He also deposed in the Court that he himself had been paying the land revenue. He produced different receipts Ex.PI to P4 available at pages 117 to 126 of the lower court record ('LCR' for short), which are 20 receipts in number. Plaintiff produced PW-2 Maha Singh, PW-3 Jagir Singh, PW-4 Nirmal Singh, PW-5 Bakhshish Singh and PW-6 Mukhtiar Singh, who remained as his tenants on the suit land at different points of time. Statements of all these witnesses are available at pages 174 to 179 of LCR. Statement of Harpal Singh was available at pages 171 and 199 of LCR. On the other hand, defendant-Pritam Kaur appeared as DW-1. Her two other sisters namely Rajender Kaur and Balwant Kaur did not file their written statements. It was only Pritam Kaur, who had been contesting the suit. She also produced DW-2 Banarsi Dass-Deed Writer, whose statement was at page 186 and 200 of the LCR. DW-3 was Arjan Singh-witness to the sale-deeds, who deposed at pages 187, 188 and 200 of LCR. Pritam Kaur-defendant produced DW-4 Mela Singh and Thakur Singh DW-5 as tenants of Harnam Kaur. DW-6 Mohinder Singh was also attesting witness to the sale-deed. 16. A combined reading of the pleadings, evidence and both the impugned judgments leaves no room for doubt that plaintiff has duly proved his case and the same ought to have been decreed. Since both the learned courts below have completely misread and misunderstood the true facts of the case as well as evidence available on record, the impugned judgments and decrees cannot be sustained. Once the oral gift was rightly held invalid by both the learned courts below and the learned senior counsel for the respondents was justified not to raise any argument in this regard, the entire case of the respondents hinges on the mutation dated 11.6.1955, followed by the plea of adverse possession. Mutation No. 430 dated 11.6.1955 was Ex. P5 available at page 105 of the LCR. The original was in Urdu which was got translated in English by the learned counsel for the respondents. The basis for entering and sanctioning this mutation was the oral gift coupled with the alleged oral statement made by the plaintiff-appellant. 17. Mutation No. 430 dated 11.6.1955 was Ex. P5 available at page 105 of the LCR. The original was in Urdu which was got translated in English by the learned counsel for the respondents. The basis for entering and sanctioning this mutation was the oral gift coupled with the alleged oral statement made by the plaintiff-appellant. 17. Neither the mutation proceedings were signed by plaintiff Harpal Singh nor there was any statement made by him in the form of any affidavit or any application requesting the revenue authority to sanction that mutation in favour of Harnam Kaur. Since the very basis of mutation was oral gift and that has been rightly declared to be invalid, authenticity and sanctity of the mutation goes with oral gift. Since the mutation was entered and sanctioned without notice to the true owner, it would be totally insignificant and would not confer any title on Smt. Harnam Kaur. Under these peculiar facts and circumstances of the case, possession of Smt. Harnam Kaur to the extent of 56K-4 1/2M would be, at the most, permissive possession. It is so said because Smt. Harnam Kaur never declared her possession as and adverse to the knowledge of plaintiff Harpal Singh. In such a situation, permissive possession of Harnam Kaur would never become adverse possession irrespective of its duration for 12 or more &p T years. 18. Once Smt. Harnam Kaur could not become owner by way of adverse possession, it can be safely concluded that she was not competent to execute the sale-deed in favour of her daughter Pritam Kaur-defendant No.2 and sale-deeds would be of no consequence. Since both the learned courts below failed to appreciate the settled proposition of law on adverse possession, the impugned judgments and decrees have been found based on patent illegality and perversity because of which, the same cannot be sustained. 19. Even if it is accepted, though only for the sake of argument, that Smt. Harnam Kaur became co-sharer to the extent of half share noted above, the plea of adverse possession was neither available to her nor to her legal heir Pritam Kaur. It is an admitted fact between the parties that land is still joint. It is also a matter of record that Smt. Harnam Kaur did not take the plea of adverse possession in her written statement. Thereafter, she died during the pendency of the suit. It is an admitted fact between the parties that land is still joint. It is also a matter of record that Smt. Harnam Kaur did not take the plea of adverse possession in her written statement. Thereafter, she died during the pendency of the suit. Her one daughter Pritam Kaur was already defendant No.2 whereas Harnam Kaur-herself was defendant No.1. After the death of Harnam Kaur, her two other daughters namely Rajender Kaur and Balwant Kaur were brought on record but they did not file any written statement. Pritam Kaur filed her amended written statement taking the plea of adverse possession. 20. It is also not in dispute that Pritam Kaur was not living in India. As per her own statement as DW-1, available at page 181 of LCR, she was living in United Kingdom. She deposed before the Court as DW-1 that her mother Harnam Kaur had also inherited a part of estate of her father, on account of her being his widow. However, this assertion was factually incorrect because Hazura Singh died in 1941-42 and his entire estate came to devolve upon plaintiff Harpal Singh-his only son. She further deposed that before she purchased the suit land from her mother Harnam Kaur, she had come to know that Harnam Kaur had become owner of this land by way of adverse possession. However, surprisingly no such averment was taken either by Harnam Kaur-defendant No.1 in her written statement nor by Pritam Kaur-defendant No.2, who filed her separate written statement. Pritam Kaur-defendant also admitted in her statement 21. Pritam Kaur-defendant also admitted in her statement before the Court that she had no account either in bank or in any post-office in India. She never rented out this land to anybody. She also admitted in her cross-examination that Smt. Harnam Kaur-her mother had lost her total vision 4-5 years before her death. She claimed to have borrowed the money amounting to Rs. 84,000/- from her daughter Rupinder Kaur. However, Rupinder Kaur was not produced in the witness box. Pritam Kaur also expressed her ignorance as to what her mother Harnam Kaur did with the money of sale consideration amounting to Rs. 84,000/-. Having said that, this Court feels no suit land, she was not competent to sell it in favour of her daughter-Pritam Kaur by way of sale-deeds Ex. Pritam Kaur also expressed her ignorance as to what her mother Harnam Kaur did with the money of sale consideration amounting to Rs. 84,000/-. Having said that, this Court feels no suit land, she was not competent to sell it in favour of her daughter-Pritam Kaur by way of sale-deeds Ex. D1 and Ex.D2 because of which no title would pass in favour of Pritam Kaur-defendant. Since both the learned courts below failed to delve deep into the above-said material aspect of the matter, the impugned judgments and decrees have been found to be suffering from serious infirmities and the same cannot be sustained. 22. Taking the first and second substantial questions of law together, it is held that the learned senior counsel for the respondents was correct and justified to argue that Pritam Kaur-defendant-respondent was entitled to take the plea of adverse possession in her amended written statement, being the legal heir of her mother Harnam Kaur, as per the provisions of Order 22, Rule 4 (2) CPC. A bare reading of the provisions contained in Order 22, Rule 4 (2) CPC, would show that the plea which was available to the deceased can be taken by his/her legal representative by filing the amended written statement. The view taken by this Court also finds support from the judgments of the Hon'ble Supreme Court in Sumtibai's case (supra), Vidyawati's case (supra) and Bai Kishan's case (supra). Accordingly, first and second substantial questions of law are decided in the affirmative. In principle, it is held that whichever plea might have been taken by a deceased but was not taken in his or her pleadings, would be available and can be taken by his or her legal representative except those pleas K: which were personal to the deceased-defendant. 23. However, so far as the present case is concerned, there are more than one distinguishing features. Firstly, the plea of adverse possession was not available even to the deceased Smt. Harnam Kaur as noticed herein above. This was the reason that Smt. Harnam Kaur herself did not take the plea of adverse possession in her written statement. Secondly, in the given fact situation of the present case, the plea of adverse possession, if at all was available, it was personal to Smt. Harnam Kaur, reason being Pritam Kaur was living abroad, during all this period. This was the reason that Smt. Harnam Kaur herself did not take the plea of adverse possession in her written statement. Secondly, in the given fact situation of the present case, the plea of adverse possession, if at all was available, it was personal to Smt. Harnam Kaur, reason being Pritam Kaur was living abroad, during all this period. Further, Harnam Kaur-defendant No.1 as well as Pritam Kaur-defendant No.2 had filed their separate written statements during life time of Harnam Kaur, however, both of them remained conveniently silent in this regard and did not take the plea of adverse possession. If the plea of adverse possession was available to Harnam Kaur, Pritam Kaur-defendant-respondent would have impressed upon her mother Harnam Kaur to take the plea of adverse possession. However, since the plea of adverse possession was not available even to Smt. Harnam Kaur, there was no scope for her legal representative and co-defendant, i.e. Pritam Kaur to take the said plea of adverse possession, by filing amended written statement as legal representative of her mother Harnam Kaur. In this view of the matter, it is unhesitatingly held that both the learned courts below fell in serious error of law, while passing their respective impugned judgments and decrees and same cannot be sustained, for this reason also. 24. Coming to third substantial question of law, it is held that although a co-sharer can take the plea of adverse possession against another co-sharer but a complete ouster to the knowledge of co-sharer not in possession, has to be pleaded and duly proved. This view taken by the Court finds support from the numerous judgments of the Hon'ble Supreme Court including in the cases of Karbalai Begum v. Mohd. Sayeed and another, 1980 (4) SCC 396 ; Md. Mohammad Ali (Dead) by Lrs. v. Sri Jagadish Kalita and others, 2004(1) SCC 271; Md. Zainulabudeen (deceased) by L.Rs. v. Sayed Ahmed Mohideen and others, 1990 AIR (SC) 507; Darshan Singh v. Gujjar Singh (Dead) by Lrs. and others, 2002(2) SCC 62 ; Des Raj and others v. Bhagat Ram (Dead) by LRs. and others, 2007(9) SCC 641 ; State of Haryana v. Mukesh Kumar and others, 2012 (1) RCR (Civil) 17 and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others, 2009 (16) SCC 517 . and others, 2002(2) SCC 62 ; Des Raj and others v. Bhagat Ram (Dead) by LRs. and others, 2007(9) SCC 641 ; State of Haryana v. Mukesh Kumar and others, 2012 (1) RCR (Civil) 17 and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others, 2009 (16) SCC 517 . The relevant observations made by the Hon'ble Supreme Court in paras 28 to 32 in Mohammad Ali's case (supra), which can be gainfully followed in the present case, read as under:- "28. In Karbalai Begum v. Mohd. Sayeed and Another, (1980) 4 SCC 396 , the law has been stated by this Court in the following terms : "It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession." 29. In Annasaheb Bapusaheb Patil and Others etc. v. Balwant alias Balasaheb Babusaheb Patil (Dead) by LRs. and Heirs and Others etc., [ (1995) 2 SCC 543 ], this Court held: "15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all." 30. In Vidya Devi alias Vidya Vati (Dead) by LRs. v. Prem Prakash and Others, (1995) 4 SCC 496 this Court upon referring to a large number of decisions observed: "27. it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. 'Ouster' does not mean actual driving out of the co-sharer from the property. This was also the observation of the Supreme Court in P. Lakshmi Reddy case which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law claim title by adverse possession against another owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law." 31. Yet again in Darshan Singh and Others v. Gujjar Singh (Dead) by LRs. and Others, [ (2002) 2 SCC 62 ], it is stated : "It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers." 32. It has further been observed that: "In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied." 25. The Hon'ble Supreme Court recorded its strong reservation on the very existence of the concept of adverse possession and recommended to the Parliament to consider the issue seriously. The relevant observations made by the Hon'ble Supreme Court in paras 46 to 48 of the judgment in Mukesh Kumar's case (supra) read as under:- "46. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. 47. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. 47. Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be convened to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. 48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change. 26. Reverting back to the fact situation of the case in hand and respectfully following the law laid down by the Hon'ble Supreme Court, it is held that since defendant-Pritam Kaur did not plead even in her amended written statement, filed as legal representative of her mother Smt. Harnam Kaur (deceased) as defendant No.1, about the complete ouster of plaintiff, the plea of adverse possession was not available to her as co-sharer against plaintiff-appellant Harpal Singh. The third substantial question of law is answered accordingly. 27. In view of what has been discussed herein above, the plea of bona fide purchaser was not available to Pritam Kaur-defendant -respondent. Once her vendor Smt. Harnam Kaur herself was not the owner, no better title could have been passed in favour of the vendee- Pritam Kaur. Further, Pritam Kaur being the sister of plaintiff-Harpal Singh, was well aware that her mother was not the owner of the suit land. Thus, Pritam Kaur-defendant cannot be held to be a bona fide purchaser by any stretch of imagination. Fourth substantial question of law is accordingly decided against the respondents. 28. As noticed herein above, until and unless a co-sharer specifically pleads complete ouster of other co-sharers and to the knowledge of those co-sharers not in possession, he cannot take the plea of adverse possession. Fourth substantial question of law is accordingly decided against the respondents. 28. As noticed herein above, until and unless a co-sharer specifically pleads complete ouster of other co-sharers and to the knowledge of those co-sharers not in possession, he cannot take the plea of adverse possession. It is the settled proposition of law that a co-sharer in possession is deemed to be in possession on behalf of other co-sharers also. This view taken by this Court also finds support from two Full Bench judgments of this Court in Bhartu v. Ram Sarup, 1981 PLJ 204 and Ram Chander v. Bhim Singh and others, 2008(3) RCR (Civil) 685. 29. In the present case, it was not even argued case on behalf of the respondents that Pritam Kaur-defendant-respondent took the plea of complete ouster against the plaintiff-appellant, even in her amended written statement, so as to take the plea of adverse possession. The Hon'ble Supreme Court in Karbalai Begum's case (supra) also held that non-participation by a co-sharer out of possession, in the rent and profits of land, will also not provide the plea of adverse possession to the co-sharer in possession, because non-participation in rent and profits of the land does not amount to ouster. Thus, fifth substantial question of law, posed herein above, is decided in favour of the plaintiff-appellant and against the defendants-respondents. 30. So far as the judgments relied upon by the learned counsel for the respondents are concerned, there is no dispute about the law laid down therein. However, on close perusal of the cited judgments, the same have not been found to be of any help to the respondents except the judgments on Order 22, Rule 4 CPC. As discussed herein above. although all the pleas available to a deceased except those which were personal to him, would be available to his legal representative, yet since the plea of adverse possession was not available in the present case even to the deceased-defendant No.1-Smt. Harnam Kaur, the same would not be available to her daughter and co-defendant Pritam Kaur. in view of the given fact situation obtaining in the instant case. Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. in view of the given fact situation obtaining in the instant case. Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another v. State of Tamil Nadu and others, 2002 (3) SCC 533 . 31. Over all conduct of the parties to the litigation has always been a relevant factor for consideration by the courts of law. Pritam Kaur-defendant, while appearing as DW-1, had to admit in her cross-examination that plaintiff initiated the proceedings under Section 145 Cr.P.C. Plaintiff-appellant Harpal Singh also deposed as PW-1 that because his possession was threatened by the defendants, he had to initiate the proceedings under Section 145 Cr.P.C. Thereafter, the plaintiff was got arrested by the defendants on 23.5.1983 and he Was remained in police custody for one day. It was so admitted by DW-3 Arjun Singh in his cross-examination that plaintiff was arrested by the police of Police Station Samrala. A compromise was got typed from a typist in the court compound when the plaintiff was not even present. However, this witness denied that plaintiff was given any beating by the police and an amount of Rs. 780/- was also taken away from the plaintiff. 32. Surprisingly, although the dispute was only qua the land measuring 56K-4 1/2M, yet pursuant to the alleged compromise, the total land measuring 112K-9M was given on lease by the Gram Panchayat. Thus, none of the parties were in cultivating possession of the suit land during the pendency of this litigation. Since both the learned courts below have illegally ignored the pleadings, evidence available on record as well as the law laid down by the Hon'ble Supreme Court, the sixth substantial question of law is answered accordingly. It is held that since both the learned courts below have completely misread and misconstrued the evidence as well as the relevant principles of law applicable to the fact situation of the present case, the impugned judgments and decrees have been found to be based on patent illegality and the same cannot be sustained. 33. It is held that since both the learned courts below have completely misread and misconstrued the evidence as well as the relevant principles of law applicable to the fact situation of the present case, the impugned judgments and decrees have been found to be based on patent illegality and the same cannot be sustained. 33. Admittedly, the suit land measuring 56K-4 'AM, which was half share of the total land, was joint between the parties. It has not partitioned even till date. In the given fact situation of the present case, the plea of adverse possession, as discussed herein above, was personal to late Smt. Harnam Kaur because Pritam Kaur was living in England. Thus, the plea of adverse possession was not available to Pritam Kaur under Order 22, Rule 4 (2) CPC. Further, Pritam Kaur-defendant-respondent never pleaded complete ouster to the knowledge of plaintiff nor did she lead any evidence in this regard. In the absence of plea of complete ouster to the knowledge of other co-sharer, i.e. plaintiff in the present case, defendant-Pritam Kaur was not entitled to take the plea of adverse possession, as per the law laid down by the Hon'ble Supreme Court in the judgments referred to here-in-above. Since both the learned courts below miserably failed to consider and appreciate the above-said factual as well as the legal aspect of the matter, the impugned judgments and decrees cannot be sustained. 34. No other argument was raised. 35. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned judgments and decrees have been found suffering from patent illegality, the same are hereby set aside. 36. Consequently, suit of the plaintiff is decreed. Plaintiff is declared owner of the suit land. Plaintiff-appellant through his legal representatives is held entitled for the amount of lease money deposited by the person(s) cultivating the total land measuring 112K-9M, right the year 1983. The legal representatives of plaintiff-appellant are o held entitled for possession of the entire land measuring 112K-9M including the suit land, cultivating possession of which was taken from the plaintiff-Harpal Singh, in the proceedings under Section 145 Cr.P.C. 37. Resultantly, the present appeal stands allowed, however with no order as to costs.