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Judgment
Muni Lal Verma, J.—Shrimati Bui (now the Appellant) instituted suit for joint possession of land measuring 87 Kanals 4 Marias described in the heading of the plaint (hereinafter called the land) claiming one-half share therein with the allegations that her husband Harnam Singh, and Gurdit Singh were joint owners and after the death of Harnam Singh she had succeeded to one-half share in the land She succeeded in the suit. Gurdit Singh carried appeal which was allowed by the District Judge, Kapurthala and she was non-suited. Hence, she came to this Court in second appeal.
The material facts essential for the decision of the controversy between the parties, are that Harnam Singh was the first cousin of Gurdit Singh that they held occupancy rights in equal shares in the pre-consolidation land, that he (Harnam Singh) had died on July 12, 1949. Gurdit Singh got the occupany rights held by Harnam Singh in the land mutated in his favour on July 20, 1951 represetning that he (Harnam Singh) had died without a widow. The said occupancy rights had matured into ownership on account of change in law and a mutation to that effect was sanctioned in favour of Harnam Singh on October 24, 1951 The land is the post-consolidation one of the aforesaid land. Shrimati Bui claimed that she was the widow of Harnam Singh and after his death she had been living in another village with her married daughter Taking advantage of her absence from the village, Gurdit Singh misrepresented to the Revenue Authorities that he (Harnam Singh) had died widowless and thereby succeeded in getting the land mutated in his favour. As such, the said mutation was ineffective against her rights. According to her, Gurdit Singh had been previously paying her share in the produce of the land after the death of her husband-Harnam Singh, but had stopped paying the same in or about the year 1965(sic). So, she brought the suit.
Gurdit Singh contested the suit. He admitted that Harnam Singh was ca-occupancy tenant with him in the land in equal share but he controverted the other material allegations of Shrimati Bui and pleaded inter alla that she had contracted second marriage With another person of village Patnura in District Jullundur and had been residing with him as his wife, and according to special aw of inheritance obtaining in the Erst while State of Kapurlhala(sic) (the land being situate within the limits of that State) she was not entitled to succeed to the occupancy rights held by Harnam Singh, and suit was barred by time and was not congnisable by Civil Court. The suit was tried on the following issues:
Whether the suit is within time ? OP
Whether Harnam Singh dec ased was the owner to the extent of 1/2 share in the suit land? OP
Whether Harnam Singh deceased was merely an occupancy tenant at the time of his death, if so to what effect? OD.
Whether the Plaintiff has remarried after the death of Harnam Singh, if so to what effect ? OD
4A. Whether the civil court has no jurisdiction in this case ?
4B. Whether the impugned mutation is void and ineffective against the Plaintiff ?
Relief.
The trial Court returned verdict on issue Nos. 1, 2, 3 and 4B in the affirmative, decided issue Nos. 4 and 4A against Gardit Singh, and granted decree for joint possession of the land to Shmt. Bui declaring her share therein as one-half. Gurdit Singh carried appeal and the first Appellate Court confirmed the findings recorded by the trial Court on all issues other than issue No. 1, and relying on Sada Nand Saraswati v. Shiv Nath (1964)66 P.L.R. 104, took the view that possession of one-half share of the land belonging to Harnam Singh by Gurdit Singh after his (Harnam Singh''s) death had been adverse and the same commenced from July 12, 1949, when he died and it had matured into ownership after a lapse of twelve years and he (Gurdit Singh) had become owner of the land on December 29, 1967, when the suit was instituted. So, the first Appellate Court reversing finding of the trial Court on issue No. 1, decided the same in the negative and allowing the appeal dismissed the suit.
The facts, that Harnam Singh was co-occupancy tenant with Gurdit Singh in the pre-consolidation land and their shares therein were equal, that he (Harnam Singh) died on July 12, 1949, and due to change in law, the said occupancy rights had matured into ownership and the land is the post-consolidation one of the aforesaid land wherein Harnam Singh and Gurdit Singh were occupancy tenants, are not disputed. The findings recorded by the trial Court on issue Nos. 2, 3, 4, 4A and 4B and confirmed by the lower Appellate Court were not contested, and I too do not find any defect therein. The plea raised by Gurdit Singh in the written statement that according to special law of inheritance prevailing in the Erstwhile State of Kapurthala, the Appellant was not entitled to succeed to the occupancy rights held by Harnam Singh, was too not pressed, for the obvious reason that the law obtaining in the Eastwhile Kapurthala State had ceased to operate, with effect from August 20, 1918, when the said State of Kapurthala merged into Patiala and East Punjab States Union.
Assailing the finding recorded by the lower Appellate Court on issue No. 1, Mr. Y.P. Gandhi, Learned Counsel for the Appellant, argued that since Gurdit Singh had been in possession of the pre-consolidation land as co-occupancy tenant, his possession was on behalf of himself and on behalf of the co-occupancy tenant Harnam Singh, and his possession of the said land after the death of Harnam Singh too continued firstly as co-occupancy tenant and then as co-sharer, and since Shrimati Bui (the Appellant) had succeeded to the occupancy rights held by Harnam Singh being his widow, his (Gurdit Singh''s) possession of the land could not be reckoned as adverse to her. On the contrary, Mr. L.M. Suri, Learned Counsel for the Respondent, supporting the judgment of the lower Appellate Court, maintained that when the occupancy rights held by Harnam Singh had been mutated in Gurdit Singh''s favour on July 20, 1951, his possession of the pre-consolidation land should be considered as adverse to the Appellant from July 12. 1949, his possession of the land when her husband Harnam Singh, died and the same continued to be so firstly of the pre-consolidation land and then of the land for more than twelve years and bad matured into ownership before December 29, 1967 when the suit was instituted, whether the same be counted from the date of death of Harnam Singh or from July 20, 1951 when the occupancy rights held by Harnam Singh were mutated in her favour or from October 24, 1951 when the mutation respecting the grant of rights of ownership in lieu of occupancy tenants had been sanctioned. In my opinion, there is merit in the argument advanced by Mr. Gandhi and the contention raised by Mr. Suri is not well founded Proceedings for mutation are not judicial proceeding in which title to or proprietary rights in immovable property are determined. They are much more in the nature of fiscal enquiries instituted in the interest of the State for the purpose of ascertaining which of the persons may be put into possession of land with greater confidence that the revenue for it would be paid. Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal heir in a proprietary sense to the exclusion of the other co-owner(s) because Revenue Authorities have no jurisdiction to pronounce upon the validity of claim of ownership. Such were the observations made in Thakur Nirman Singh and Ors. v. Thakur Lal Rudra Partap Narain Singh AIR 1926 P.C. 1100. Therefore, the mere fact that mutadon (Exhibit D. 2) recording the occupancy rights held by Harnam Singh in favour of Gurdit Singh was sanctioned on July 20, 1951, can be of no avail to the Respondent and is not sufficient to sustain the plea of adverse possession. It is pertinent to note that the said mutation was recorded on a misrepresentation that Harnam Singh died without a widow and was also sanctioned on the said misrepresentation. So, it is clear that Gurdit Singh Respondent was guilty of dishonesty and unfair conduct in not disclosing to the Revenue Authorities that Harnam Singh had left behind the Appellant as his widow. Further, there is nothig on record to indicate and mutation (Exhibit D. 2) does not disclose that any notice had ever been sent to the Appellant when the occupancy rights held by Harnam Singh, were mutated in favour of the Respondent. Rather the circumstance that the occupancy rights held by Harnam Singh had been mutated in favour of Gurdit Singh on a representation that (Harnam Singh) died widowless, reads consistant with the contention that no notice had been issued to her and the occupancy rights held by Harnam Singh had been mutated in favour of Gurdit Singh at her back and without her knowledge. Admittedly, Harnam Singh died on July 12, 1949. His death was within the knowledge of the Revenue Authorities, at least with effect from July 20, 1951 when mutation regarding the occupancy rights held by him had been sanctioned in favour of Gurdit Singh on the ground of his (Harnam Singh''s) death. Therefore, ownership rights in the land due to change in law could not be subsequently mutated in the name of Harnam Singh, but still the Revenue Authorities had sanctioned the mutation (Exhibit D. 1) recording ownership rights in lieu of occupancy rights in the pre consolidation land in favour of Harnam Singh on October 24, 1951, while, as indicated above, he had died long before i.e on July 12, 1949. So, the aforesaid mutation (Exhibit D. 1) suffers from a patent error of mutating land in favour of a dead person and exposes the carelessness and want of interest on the part of the Revenue Authorities in recording the said mutation, and the said circumstances goes a long way to show that mutation (Exhibit D. 2) might have also been recorded and sanctioned with similar negligence. Mutation (Exhibit D. I) was also sanctioned in absence of the Appellant and without her knowledge. On the said state of things. I feel that it would be an error to contend, much less to conclude, that possession of the pre-conslidation land by the Respondent was or could be adverse to the rights of the Appellant with effect from July 20, 1951 when mutation (Exhibit D 2) was sanctioned or from October 24, 1951 when mutation (Exhibit D. 1) was sanctioned.
There can be no quarrel with the rule laid down in Sada Nand Saraswati''s case (supra) which was relied on by the lower Appellate Court, that inheritance never remains in abeyance, but the said judgment renders no assistance to the Respondent. The facts of that case were totally different. That case does not deal with the proposition regarding the effect of possession of land by a co-owner which is the subject of the present controversy Under the provisions of Patiala Tenancy Act which were in force on July 12, 1949, the occupancy rights held by Harnam Singh were inherited on his death by the Appellant being his widow. This proposition was conceded by the parties in the trial Court and was niether challenged in the lower Appellate Court nor before me. So, on July 12, 1949 and thereafter the Appellant was a co-occupancy tenant with the Respondent. When the law granted propiretary rights in lieu of occupancy rights the Appellant became co-owner of the land with the Respondent, her share therein being one-half and continued to be so after the sanction of mutation (Exhibit D. 1) This situation prevailed by operation of law irrespective of the fact that the Respondent had been in actual possession of the land and the Appellant lived in another village with her married daughter. It is now v. ell settled proposition of law that possession of a co-owner is on | behalf of all the co-owners. It is based on the principle that when possession of property can be referred to lawful title it would not be considered to be adverse. The possession of one co-owner who is entitled to be in possession of the property has to be referred to be the joint title and cannot be considered adverse to the other co-owner(s) The expression ''adverse possession'' means hostile possession i.e. possession which expressly and impliedly is denieal of the title of the co-owner. Since a co-owner can be in exclusive possession of whole of the property on account of the Joint title he cannot advance the plea simply on account of his exclusive possession or on the ground of non-participation in the profits of the property by the other co-owner in possession. In order to sustain a plea of adverse possession a co-owner in occupation of the property has to prove ouster of the other co-owner (s) or at least something equivalent to it. The test of ouster is that the co-owner in possession has openly and unequivocally and to the knowledge of the other co-owner(s) denied their title to the property. To put it differently, a co-owner who put forth the plea of adverse possession against the other co-owners) has to prove that bis possession of the joint property had been inconsistent with his character as co-owner. Although the aforesaid proposition of law is so well settled that it needs no authority, yet I, in fairness to the Learned Counsel for the Appellant, who cited, P. Lakshmi Reddy Vs. L. Lakshmi Reddy, , Sabura Ammal and Others Vs. Ali Mohamed Nachiar and Others, Dipnarain Rai and Others Vs. Pundeo Rai and Others, and Prem Singh and Ors. v. Mian Tej Singh AIR 1950 P&H 252, may refer to the said judgments which support the said proposition of law. The Judgments reported in Ramlakhan Singh v. Bhaia Chathu Sahi AIR 1929 Pat. 621 and Saminatha Nayinan Vs. Kuppuswami Ayyar, ), cited by Mr. Suri do not lay down a different law. The law enunciated above was not applied in Ramlakhan Singh''s case (supra) because the dispute in that case was not between the co-owners but was between the landlord and tenant and it was observed that the doctrine that possession of one co-owner is possession of all co-owners would not apply to a case between the landlord and tenant. In Venkatachalam Chettiar''s case supra) it was held on facts that Annapurni and her husband Munuswami had entered in possession of the house under a c!aim of title adverse to Benkatachalam and thereafter they had been dealing with the house in assertion of hostile title which was inconsistent with the right of Benkatachalam and it was also found that the notice of the said disclaimer of his right was within the knowledge of Venkatachalam. It was on those facts that it was found that there was ouster of Venkatachalam and, as such, the finding of adverse possession was recorded in favour of Annapurni.
The observations made in Sardar Amar Singh v. Sardarni Shiv Patt Kaur AIR 1937 Lah. 890 by the learned Single Judge were not approved by the Division Bench of this Court in Kirori Jugal Kishore and Another Vs. Man Bai and Others, It was ruled in Kirori Mal''s case (supra), that it is indisputable that statutes of limitation are to be strictly construed and unless their provisions clearly and precisely apply to a particular case no rightful owner can be deprived of his property at the instance of a wrong doer. It is therefore obvious that secret mutation and removal of the name of heir of the true deceased owner who lives in another village from the revenue papers can by no means be construed as to amount to an over act, and will not tantamount to ouster.
It, thus, follows from the discussion above that the Appellant and the Respondent had become co-owners of the land and possession of the land by Gurdit Singh Respondent was consistent with his joint title therein and on the facts of the case it could not be found, even remotely, that the Appellant had been ousted and the material present on record does not warrant a finding of ouster of the Appellant by him. In view of the position of law discussed above, the possession of the land by Gurdit Singh has to be reckoned as on behalf of himself and on behalf of the Appellant. The mere recording of mutations (Exhibits D. 1 and D. 2) or the sanction of the same do not in any manner show that the Appellant had been ousted from the land. She did not have notice of the said mutations or of entires in revenue record because she was in another village. So, the approach of the lower Appellate Court was ne;ther warranted by law nor by facts. Its conclusion that the possession of the land by Gurdit Singh had been adverse to the title of the Appellant for more than twelve years is contrary to law. As such, it had erred in vacating the finding recorded by the trial Court on issue No. 1. The said reversal of the finding by the lower Appellate Court on issue No. 1 has resulted in grave injustice. So, the same cannot be maintained and I, reversing the said finding, concur with the trial Court that the Respondent had tailed to prove adverse possession of the land and revive its finding on issue No. 1. As a result of that finding, this appeal succeeds.
Consequently, I allow this appeal, set aside the judgment and decree of the lower Appellate Court and restore those of the trial Court. In the peculiar circumstances of the case, I leave the parties to bear their own costs.