Jaswant Singh vs Des Raj

J.V. Gupta, J.—This is defendant''s second appeal against whom suit for possession by way of partition was dismissed by the trial Court but was decreed in appeal.

Asa Ram was the owner of the house in dispute. Vide gift deed dated 12th August, 1947, he gifted the said house to the plaintiff Des Raj and Jaswant Singh defendani in equal shares. It may be mentioned here that Jaswant Singh defendant is the son of said Asa Ram while Des Raj is the son of the pre-deceased son of Raghbir son of Asa Ram. Asa Ram died some where in the year 1950 and till his death the plaintiff lived in this house. He being in service was generally away from Panipat and the defendant''s possession over this house is that of a co-sharer. Hence, the present suit for partition.

Jaswant Singh contested the suit on the ground that suit for separate possession of partition does not lie; that since 1953 the plaintiff and his mother ceased to reside in the house and thereafter the defendant remained in possession of the whole house as owner and whatever rights the plaintiff had in the house, has since been lost by prescription. After the gift Asa Ram donor lived in this house as licensee under the defendant out of love and affection. It was further pleaded that Asa Ram was under heavy debts at the time be executed the gift deed and it was provided in the gift deed that both the donees would be liable to pay the debts in equal shares. Sikce the plaintiff did not pay anything and the defendant had to mortgage his share of the house to pay the debts of the donor and when he asked the plaintiff and his mother to join in the said mortgage, they refused to do so. On that account as well the defendant was not entitled to file the present suit. The trial Court found that the defendant was in execiusive possession of the whole house in dispute and therefore, his possession ripened into title in respect of the share of the plaintiff. In view of this finding the plaintiff''s suit was dismissed. In appeal, the learned District Judge reversed the finding of the trial Court and came to the conclusion that the defendant has failed to prove that his possession of the share of the plaintiff has ever been hostile to him. Moreover, admittedly the plaintiff was aged 10-11 years at the time when he was turned out of the house. Thus 12 years have not expired after the plaintiff has attained majority when the present suit was filed. In view of this finding plaintiff''s suit was decreed. Dissatisfied with the same, the defendant has filed the second appeal in this Court.

The learned counsel for the appellant contended that the plaintiff has failed to prove his exact date of birth at the time of the filing of the suit and therefore, it has been wrongly held that 12 years have not elapsed after the plaintiff has attained majority at the time of the filing of the suit.

It was next contended that all the taxes, etc., were paid by the defendants during this period and the plaintiff did not produce any documentary evidence to show that he was ever in possession of the house in dispute. Thus argued the learned counsel, the finding of the trial Court in this behalf was correct and the same has been reversed in appeal arbitrarily.

After hearing the learned counsel for the appellant, I do not find any merit in this appeal. Admittedly, both the parties were co-shares in the house in dispute by virtue of the gift deed dated 12th August, 1947. The possession of the defendant was that of a co-sharer and therefore, the question of adverse possession qua the plaintiff as such did not arise, The onus was very heavy on the defendant to prove the ouster of the plaintiff from the joint property which he has failed to prove by any cogent evidence. In these circumstances, I do not find any illegality or infirmity in the firm findings of the lower appellate Court as to be interfered with in the second appeal. Consequently, the appeal fails and is dismissed with no order as to costs.