Jagan Singh and others vs Chatin Kaur

S.S.Sodhi, J.

The controversy in appeal here is with regard to the plaintiff''s claim to have become owners of the land in suit by adverse possession. The contest being between the daughter and the 5th degree collaterals of Tarlok Singh the last male holder.

Tarlok Singh was the original owner of the land in suit. He died leaving behind his widow Har Kaur who came into possession thereof on his death. The dispute regarding this property arose only after the death of Har Kaur. The plaintiffs being the 5th degree collaterals of Tarlok Singh claimed a preferential right of succession over his daughter, Chatin Kaur defendant, by pleading a custom to this effect and asserting that the land in suit was ancestral.

Both the ancestral nature of the property and the custom pleaded was controverted by the defendant Chatin Kaur and indeed it was the finding of both the Courts below that the land in suit was not ancestral. This being so, there can be no manner of doubt that the plaintiffs had no claim to the land by virtue of any custom set up by them. It is on this account that the plaintiffs claim to have become owners of the land in suit by adverse possession, becomes of material significant in this case.

Both the Courts have given a clear finding that it was the plaintiffs who came into possession of this land on the death of Har Kaur. There is some dispute with regard to the precise date of death of Har Kaur. According to the plaintiffs, she died on December 9, 1955 whereas, Chatin Kaur pleaded that she died sometime after the coming into force of the Hindu Succession Act, meaning thereby that Har Kaur had held this land as full owner at the time of her death and it was Chatin Kaur who was thus entitled to succeed to it in preference to the plaintiffs. This aspect of the case, however, loses much of its relevance in view of the finding that the land in suit was not ancestral. The importance of the date of Har Kaur''s death lies only in the context of the plaintiff''s claim to have become owners of the land in suit by adverse possession, namely, whether they have been in hostile possession of this land for over 12 years, and if so, since when.

A reading of the material on record would show that Har Kaur died either in the year 1955 as claimed by the plaintiffs or somewhere in 1956 as per the defendants'' case. According to the statement of Chatin Kaur, the plaintiffs entered into possession of the land in suit forcibly on her mother''s death and continued in possession of the land in suit forcibly on suit having been filed in November, 1978 much more than the necessary 12 years had elapsed since the date of Har Kaur''s death. It is pertinent to note that both the Courts below did not question the fact of the plaintiffs'' possession of the land in dispute, but they negatived their claim of adverse possession holding it to be permissible and not hostile. The precise finding of the lower appellate Court in this behalf was that the plaintiffs had been in possession of the land in suit since the death of Har Kaur, but they had entered into possession of this land claiming to be the heirs of Tarlok Singh and being in possession, therefore, as collaterals, they never set up any title to the land hostile to the original owner Tarlok Singh and no adverse possession stood established on that account. This is where the lower appellate Court fell so patently in error.

It will be seen that on Chatin Kaur''s own showing, the plaintiffs had forcibly entered into the land and deprived her of possession thereof ever since the death of her mother which as has been shown above, took place in 1956 if not earlier. The plaintiffs holding adversely to the defendants is thus writ large, selfevident on the defendants'' statement itself.

Faced with this situation, Mr. P.K. Palli, counsel for the defendants sought to contend that whether or not the plaintiffs had become owners of the land in suit by adverse possession, was a finding of fact which this Court was precluded from interfering with in Second Appeal, in view of the provisions of Section 100 of the Code of Civil Procedure. He sought to press in aid here the judgment of the Supreme Court in Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 S.C. 707 : 1981(1) R.C.R.(Rent) 633, where it is held that the High Court had exceeded its jurisdiction under Section 100 of the Code of Civil Procedure in reversing the pure concurrent finding of fact given by the Court below on the question of adverse possession and went on to observe that it was settled law that the high Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. The other authority cited in this behalf was Shri Kunj Lal v. Dharam Singh and others, 1984 P.L.R. 360, where the finding of the Court below, that the plaintiff had not proved adverse possession for the statutory period of 12 years, was held to be a pure finding of fact and could not, therefore, be questioned in Second Appeal.

There can be no manner of doubt that it is indeed the established position in law that findings of fact are not open to interference in Second Appeal under Section 100 of the Code of Civil Procedure, but as regards plea of adverse possession, it is equally wellsettled, as was observed by I.D.Dua, J. in Mr. Bhago v. Deep Chand Harphul and others, AIR 1964 Punjab 187, "... ... there is no hard and fast rule either way, namely, that a finding as to adverse possession must always be considered to be a pure question of fact, or that it must always be treated as a mixed question of fact and low. It really depends in each case on the nature of the basic facts from which the ultimate inference or conclusion is to be drawn.....".

Similar was the view expressed by the Full Bench in Ganda Singh v. Ram Narain Singh, 1959 P.L.R. 374, where it was held that ordinarily the question of adverse possession is one of facts resting upon proof of numerous circumstances which go to establish several elements indicating adverse character of the possession. In certain cases, however, it may be a question of law or a mixed question of law and facts as where the decision rests upon inferences to be drawn from facts which are admitted or established.

Such being the legal position, the Court in the present case cannot be held to be barred from going into the matter of adverse possession as raised here. It was the contention of Mr. Jagan Nath Kaushal, counsel for the plaintiffs that the challenge in appeal here was not with regard to any finding of fact regarding the possession of the plaintiffs over the land in suit. Indeed the plaintiffs had pleaded and established that they had been in possession of this land ever since the death of Har Kaur and this period was well beyond the requisite statutory period of 12 years and the Courts below had also held the plaintiffs to have been in possession. What the plaintiffs now sought to question in appeal here was the legal inference to be drawn with regard to the nature of their possession over this land and this, it was argued, was a pure question of law and Section 100 of the Code of Civil Procedure constituted no bar to interference with it in Second Appeal. Here again, it was stressed that all the essential requirements of the plaintiffs having set up a hostile title stood established by the statement of Chatin Kaur defendant herself.

Counsel for the defendants sought to counter this aspect of the case by adverting to the revenue record with a view to show that the plaintiffs had been recorded throughout as tenants over the land in suit. Great stress here was laid upon exhibit P/4, the khasra girdawari of 195657 and 195758, where defendant Chatin Kaur was recorded as owner and the plaintiffs as tenants under Har Kaur. Rent was recorded as being of onethird.

It would be pertinent to note that except in the khasra girdawari exhibit P/4, the plaintiffs had been recorded as gair marusi, that is tenants, but without payment of rent. As regards exhibit P/4, though it is mentioned that the rate of rent was onethird, the plaintiffs were recorded as tenants under Har Kaur and not defendant Chatin Kaur. The Plaintiffs had no contest with Har Kaur. The controversy arose only on her death and this hostile title which the plaintiffs now assert, was not against Har Kaur, but against her daughter Chatin Kaur and, therefore, counsel for the plaintiffs rightly argued that the fact that the plaintiffs may have been recorded as tenants under Har Kaur, cannot be taken to advance the defendants'' case.

Counsel also stressed the importance and significance of the entries in the jamabandi in the column of rent, by adverting to Maman Singh v. The Resident Magistrate, Gohana and others, 1965 P.L.R. 161, where it was held that it is entries in this column which go to show the status of the occupant of the land.

Counsel for the defendants, on the other hand, sought to contend that mere nonpayment of rent, as per the entries in the revenue records, cannot be taken to suffice to warrant a finding that possession was adverse. This argument being founded upon the judgment of this Court in Joginder Pal alias Joginder Pal v. Angad Singh, 1983 PLJ 14. A reading thereof would, however, show that it was held so in the peculiar circumstances of the case and not as a broad proposition of law applicable as general rule in all such cases.

It would be seen, therefore, that all the classical requirements of adverse possession were not only pleaded but also stand established by the plaintiffs. The very reading of the statement of defendant Chatin Kaur amply establishes the fact that the possession of the plaintiffs was open and hostile to her interest and title and what is more, they had perfected their title by adverse possession long before the filing of this suit. It has also come on record that there was a long protracted litigation between the parties over the sanction of mutation for this land. This litigation commenced sometime in 1964 and it was only in 1978 that the matter was eventually decided in favour of the defendants. Proceedings thereafter commenced between them under Section 145 of the Code of Criminal Procedure, 1973 and the land is now in possession of a Receiver appointed by the Court in those proceedings. These long drawn out mutation proceedings are another pointer to the hostile title set up by the plaintiffs against the defendants.

There can thus be no manner of doubt that the plaintiffs perfected their title to the land in suit by adverse possession on the expiry of 12 years from the date of the death of Har Kaur which, even if taken to be towards the end of 1956, would mean around 196869. In other words, they were the owners of the land in suit well before proceedings under Section 145 of Code of Criminal Procedure, 1973, started. They were thus owners in possession of this land at that time and must consequently be held entitled to all relevant consequences that flow from this finding.

The judgment and decree of the lower appellate Court is accordingly hereby set aside and this appeal is thus accepted. In the circumstances, however, there will be no order as to costs.