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KIRPA & ORS versus DHARMA & ANR

High Court of Punjab and Haryana, Chandigarh

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Kirpa & Ors v. Dharma & Anr - RSA-2198-1982 [2006] RD-P&H 3213 (16 May 2006)

R.S.A. NO. 2198 OF 1982

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

R.S.A. NO. 2198 OF 1982

DATE OF DECISION: May 10, 2006

Parties Name

Kirpa and others

..APPELLANTS

VERSUS

Dharma and another

...RESPONDENTS

CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
PRESENT: Mr. C.B.Goel, Advocate, for the appellants.

Mr. Amit Jain, Advocate, for the respondents.

JUDGMENT

Respondents No. 1 and 2 plaintiffs filed a suit for declaration that they along with appellant No. 1 and respondent No. 3 (defendants No. 5 and 6 respectively) were the co-owners in possession of the agricultural land, measuring 55 Kanals 15 Marlas, detail of which was given in their plaint. It was their case that they had become owners by way of adverse possession, which was continuous, hostile and open to the owners, i.e., appellants No. 2 to 5 (defendants No. 1 to 4). It was case of respondents No. 1 and 2 that they R.S.A. NO. 2198 OF 1982

are in possession of the property in dispute along with their brothers for the last more than 100/125 years. They had been cultivating the land as owners.

Their possession was open and hostile. At no time, any lease amount etc. was paid to respondents No. 2 to 5. It is an admitted fact that the parties are related to each other. To show their relationship, admitted pedigreetable reads thus:

"Shib Lal

I

___________ __ I_______________________

Kishan Kant Gangla Harjas

I I I

Ram Nath Nand Lal Chuni Kanahaya

I I I I

Bhola Gurdatt Tulsi Udmi

(died issueless) I I I

Harphool Beli Ram Birmah (Mst. Dapan

I I widow, died issueless

I

Siri Chand RamSingh Badlu Hari Singh Tek Chand Dharma Sardara Kirpa (Defdt-1) (Defdt-2) (Defdt-3)(Defdt-4) (Defdt-6) (Plff-1) (Plff-2) (Defdt-5) Respondents No. 1 and 2 had stated in their plaint that about 100/125 years back, due to financial hardships, Shri Ram Nath and Nand Lal, fore-fathers of respondents No. 2 to 5, left village Kavi, for ever, to settle in village Khotpura to earn their livelihood. It was their further case that above named persons never asserted their right over the land in R.S.A. NO. 2198 OF 1982

dispute and allowed their fore-fathers to cultivate the same without payment of any rent. Ram Nath and Nand Lal had actually relinquished their rights in the aforesaid land. Even at the time of consolidation proceedings, which took place in the year 1961-62, they never asserted their right and at that time, in lieu of old Khasra numbers, new Khasra numbers were allotted so far as land in dispute is concerned. It was further averred that village Khotpura was situated only at a distance of 12 Kms., even then at no time, any attempt was made by respondents No. 2 to 5 /their fore-fathers to get back possession of the land in dispute and cultivate the same. In all Jamabandis, throughout, for the last more than 100 years, they continued to be shown as absentee land owners. It was further stated by respondents No. 1 and 2 that appellant No. 1 and respondent No. 3, out of their greed and with a view to get more share in the land in dispute, purchased one plot in the year 1977 from appellants No. 2 to 5 and thereafter they got one collusive decree passed, regarding the entire land, in their favour on July 28, 1980, during pendency of this suit. Due to that, plaint was amended and challenge was also laid to the sale deed and collusive decree, referred to above. By stating above mentioned facts, it was prayed that declaration of ownership be issued in favour of the plaintiffs and they be declared as owners to the extent of their share in the property in dispute.

Suit was contested by appellants No. 2 to 5. They filed a joint R.S.A. NO. 2198 OF 1982

written-statement, wherein relationship, as shown in the pedigreetable, reproduced in earlier part of this judgment, was admitted. However, it was denied that they or their fore-fathers had relinquished their right in the land in dispute. A specific stand was taken that they were still in possession of the property in dispute as its owners. It was further stated by them that respondents No. 1 and 2, being co-sharers, cannot claim adverse possession against them.

Appellant No. 1 filed a separate written-statement, wherein he admitted sale of one plot to him by other appellants and also collusive decree in his favour. He further pleaded that appellants No. 2 to 5 were owners of the property in dispute.

Trial Court , on perusal of pleadings of the parties, framed as many as thirteen issues and one additional issue regarding validity of the judgment and decree dated July 28, 1980, was also framed. Both the parties led their evidence and on appraisal thereof, trial Court decided all issues in favour of respondents No. 1 and 2 plaintiffs except issue No. 6 and decreed their suit, as prayed by them, vide judgment and decree dated April 6, 1981.

Appellants went in appeal, which was dismissed on September 10, 1982.

Hence this Regular Second Appeal.

R.S.A. NO. 2198 OF 1982

At the time of arguments, it was felt necessary to look into following substantial question of law:

1. Whether a co-sharer in possession can claim adverse possession against other co-sharer?

2. Whether a co-sharer can claim ownership rights in the joint property when ouster of other co-sharer from the joint land and abandonment of their rights by them was proved on record.

To understand the entire controversy, basically it is necessary to look into three issues, i.e., issues No. 1, 4 and 5( at the time of hearing also, arguments mainly were raised with respect to these issues), which read as under:

"1. Whether the forefathers of defendants No. 1 to 4 did Karam Kandi and whether they left village Kavi for ever and relinquished their rights in the immovable property in favour of Tulsi Ram and Udmi, as alleged? OPP

4.Whether the plaintiffs and defendants No. 5 and 6 are owners in possession of the suit land, after the death of Beli Ram, as alleged? OPP

5. Whether the plaintiffs and defendants No. 5 and 6 have become owners of the suit property by way of adverse R.S.A. NO. 2198 OF 1982

possession? OPP"

It is apparent from the records that the trial Court with a view to appreciate issue No. 1, had divided the same into following three parts: "i) Whether the forefather of defendants 1 to 4 did Karam Kandi?

ii)Whether fore-fathers of defendants 1 to 4 left village Kavi, forever, and in what circumstances?

iii)Whether forefathers of defendants 1 to 4, relinquished their rights in their immovable property in favour of Tulsi Ram? All the questions, referred to above, were decided in favour of respondents No. 1 and 2- plaintiffs. Before the appellate Court below, no argument was addressed so far as questions No.( i) and (ii) are concerned.

However, findings given by the trial Court on question No. (iii) were contested.

Shri C.B.Goel, Advocate, counsel for the appellants, has vehemently contended that a co-sharer in cultivating possession cannot claim ownership in the joint land, by way of adverse possession, against other co- sharers. He, at the best, can be treated as a trustee on their behalf and as such the findings given by the Courts below were not justified and are liable to be set aside. To support his contention, he has placed reliance upon judgment of R.S.A. NO. 2198 OF 1982

the Hon'ble Supreme Court in Karbalai Begum v. Mohd. Sayeed and another, AIR 1981 Supreme Court 77; M. Arthur Paul Ratna Raju and others vs.

Gudese Garaline Augusta Bhushanabai and another, 1998(2) P.L.J. 537= AIR 1999 Supreme Court 2633 and Kundan (deceased) now Rep. By his L.Rs.

and another vs. Hari Ram, 1988 P.L.J. 369. He prayed that in view of evidence on record, appeal be allowed and the judgment and decree passed by the Court below be set aside.

Shri Amit Jain, Advocate, appearing for the respondents, has vehemently controverted the arguments, raised by counsel for the appellants.

He argued that it is a case of clear abandonment and ouster. Because of their act and conduct, appellants No. 2 to 5 cannot claim themselves as owners of the property in dispute. He further, by referring to the Jamabandis on record, stated that for the last more than 100 years, respondents No. 1 and 2 along with their brothers, were in possession of the property in dispute, which was open, hostile and to the knowledge of appellants No. 2 to 5. They never objected to the same and as such because of their acquiescence, after such a long time, they cannot be allowed to claim ownership rights in the property in dispute. To say that respondents No. 1 and 2, along with their brothers, have become owners of the property in dispute, in view of facts and circumstances of the case, he placed reliance upon two judgments of the Hon'ble Supreme Court in Parsinni (dead) by L.Rs. v. Sukhi, 1993(3) Recent Revenue Reports R.S.A. NO. 2198 OF 1982

681 and Bondar Singh and others vs. Nihal Singh, 2003(2) Recent Civil Reports 222.

It has been proved on record that appellants No. 1 to 4/ their fore-fathers were not in possession of the property in dispute for the last more than 100 years. They have also failed to prove that they had ever received any rent/ Batai from respondents No. 1 and 2 towards cultivation of the land in dispute. Appellants No. 2 to 5 in their written-statement have admitted that their fore-fathers had left village Kavi more than 100 years ago and they had settled in village Khotpura, situated at a distance of around 12 Kms. There is no evidence on record worth the name that despite being settled at a nearby village, they ever tried to take possession of the property in dispute, cultivate the same or ever made any attempt to get the entries in Khasra Girdawaris corrected in their favour. It is correct that mere non-participation in the rent and profits of the land ,by a co-sharer, does not amount to an ouster so as to give title by adverse possession to other co-sharers in possession. However, present is a case of abandonment, which is fully proved on record, because of which the appellants are not entitled to claim any right in the property in dispute. Under similar circumstances, their lordships of the Hon'ble Supreme Court in a similar situation in Parsinnin's case (Supra), have observed thus: "Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession must be "nec R.S.A. NO. 2198 OF 1982

vi nec clam nec precario" i.e. peaceful, open and continuous.

The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. When the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondents against whom time is running out, if to exercise due vigilance to be aware of what is happening. The possession of the appellants was adverse to the respondents inasmuch as the respondents ever since the marriage of the first appellant and her sister Chinto continued to remain in possession and enjoyment of the property in derrogation of the right, title and interest hitherto held by the respondents. When they openly and to the knowledge of the respondents continuously remained in possession and enjoyment and the entries in the revenue records establish that their possession and enjoyment is as powers, the consent of the respondents initially gave to remain in possession till their marriage or death whichever is earlier does not prevent possession being adverse after their marriage. Without any let or hindrance they remained in possession and enjoyment excluding the respondents from sharing the usufruct from those lands. The R.S.A. NO. 2198 OF 1982

test is whether the appellants are able to show that they held lands for themselves and if they did so the mere fact that there was acquiescence or closet at the inception on the part of the respondents make no difference. Since possession and enjoyment of the first appellant and her sister Chinto was to the exclusion of the respondents' brothers, for well over 30 years it is proved that the appellants were in possession and enjoyment openly and continuously in assertion of their right as owners.

The entries in the revenue record continuously for 30 years would corroborate their plea of adverse possession and militate against the claim of the title of the respondents. The plea that the appellants were never in possession and enjoyment is belied by the entries in the revenue records. The suit was filed in 1963 asserting their rights as owners for the first time by which date the appellants have perfected their titles by prescription. The High Court did not advert to this aspect of the matter. Therefore, we have no hesitation to hold that the appellants have perfected their title to the 53 Kanals 12 Marlas by prescription and the suit is barred by limitation."

To the same effect is the ratio of judgment in Bondar Singh's R.S.A. NO. 2198 OF 1982

case (supra). Abandonment of their rights in the land in dispute by appellants No. 2 to 5 is apparent from the records in the present case. In all the jamabandis from the year 1907-08 upto the filing of the suit, they continued to be shown as absentee land owners. It is also an admitted fact that their fore-fathers had shifted to a nearby village Khotpura and never bothered to cultivate the land in dispute. The land throughout remained in cultivating possession of respondents No. 1 and 2 and their brothers. Nothing has come on record to show that appellants No. 2 to 5 ever received any rent/ Batai regarding the land in dispute. They never attempted to get the entries in revenue record corrected in their favour. It appears that they woke up only when appellant No. 1, out of his greed, tried to take benefit of entries in the revenue record and purchased one plot from appellants No. 2 to 5 in the year

1977. Thereafter, during pendency of this suit, appellants No. 2 to 5 suffered a collusive decree in favour of appellant No. 1 and respondent No. 3 regarding their share in the land in dispute. Subsequently, the land was shown to have been sold to the above mentioned persons against consideration of Rs. 8,000/-. These facts demonstrate, beyond a shadow of doubt, that appellant No. 1 and respondent No. 3 had connived with appellants No. 2 to 5 to cause loss to respondents No. 1 and 2 and further that appellants No. 2 to 5 at no time were interested to retain the property in dispute and get back its possession. Above named persons were interested R.S.A. NO. 2198 OF 1982

only in getting some benefit of the entries in the revenue record, wherein appellants No. 2 to 5 were shown as absentee land owner. Silence on the part of appellants No. 2 to 5 for a long time and non-participation in the profits of the land clearly prove abandonment of rights on their part. At the time, when fore-fathers of appellants No. 2 to 5 had shifted to village Khotpura, value of the land was very negligible. In the recent times, value of the land has increased many folds. It appears that they, with a view to take advantage of the entries in their names in the revenue record and to realize some amount, sold a part of the same to appellant No. 1. Even thereafter they did not initiate any action to get possession of the property in dispute. Rather by suffering a collusive decree in favour of appellant No. 1 and respondent No. 3, they simply washed of their hands, so far as the property in dispute is concerned. Evidence on record is such, which clearly proves abandonment of rights, in the property in dispute, by appellants No. 2 to 5/their fore-fathers.

In view of facts of this case, no benefit can be given to the appellants of the ratio of judgment in Karbalai Begum's case (supra). That was a case, where fraud was played and wrongly name of the true owner was omitted from the revenue records. In that case, there was no evidence on record that the true owner was not given any share, out of the produce of the land in dispute. Similarly, ratio of the judgment in M. Arthur Paul Ratna Raju's case (supra) is of no help to the appellants. In that case, co-sharers R.S.A. NO. 2198 OF 1982

claiming adverse possession, had failed to establish, by convincing evidence that there had been ouster of the other co-sharers from the land in dispute.

Ratio of Kundan's case (supra) also fails to enhance the case of the appellants as in that case no plea of abandonment against another co-sharer was taken and there was no evidence at all with regard to the same. In the present case, there exists convincing evidence to show ouster, from the land in dispute, of appellants No. 2 to 5/ their fore-fathers. It is clearly established on record that they had abandoned their rights and on account of that, their ownership in the property had extinguished and respondents No. 1 and 2 along with their brothers have become owners in equal shares in the property, subject matter of dispute, by way of adverse possession .

In view of facts mentioned above, this appeal fails and the same is accordingly dismissed.

May 10, 2006. ( Jasbir Singh)

DKC Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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