Nanak Chand and Others vs Sohnoo and Others

V.D. Misra, C.J.—This second appeal is directed against the judgment and decree of District Judge, Kangra at Dharamsala, setting aside the judgment of the trial court and decreeing the suit.

Ghelu, Lala, Buta and Kapura were brothers. Lala died leaving behind his wife Smt. Raunku. They were joint owners of land which was left behind by Dulu, father of Ghelu and his brothers. Kapura, Buta and Smt. Raunku executed a sale deed (Ex. D-1) on 7-12-1894 in favour of Bir Singh, Jai Singh and Khushia sons of Sucheta. By this sale deed the vendors not only sold their 3/4th share of the land but also sold the 1/4th share of Ghelu. It was mentioned in the sale deed that Ghelu had been given another land in lieu of his 1/4th share in the land in question in pursuant to family partition.

Ghelu had two sons Sohnoo and Sant Ram. Sant Ram died leaving behind Dhian Singh, Janaki Devi, Gian Devi and Satya Devi. Sohnoo along with Sant Ram''s issues filed a suit against Nanak Chand, Khushia and Kashmir Singh asking for a declaration that the Plaintiffs were owners co-sharers to the extent of l/4th share in the suit land. This suit land is the 1/4th share of Ghelu, the predecessor in interest of the Plaintiffs.

The Defendants resisted the suit. It was averred that after the sale of the land on 7-12-1894, the vendees were put in possession of the suit land. It was contended that if it was found that the vendors did not have the right to alienate the share of Ghelu, then the possession of the vendees became adverse from the date of the sale when they were put into possession of that land as owners.

On the pleadings of the parties, the following issues were framed:

Whether the Plaintiffs are the co-sharers with the Defendants? O.P.P.

Whether the suit is within time? O.P.P.

Whether the Defendants have become owners by adverse possession? O.P.D.

Relief.

The trial court decided issue No. 1 against the Plaintiffs whereas issue No. 2 was found in their favour. Issue No. 3 was found in favour of the Defendants and the suit was, therefore, dismissed. On appeal, the learned District Judge came to the conclusion that the Plaintiffs and Defendants were co-sharers in respect of the suit land and thus decreed the suit.

During the pendency of the present appeal, Sohno died. His legal representatives were not brought on record. It is contended by the Respondents that the appeal abates since the claim of the Appellants against the surviving Respondents does not survive.

Now, the claim of the Plaintiffs-Respondents in the suit was that they were entitled, to succeed to the l/4th share of Ghelu. It is not disputed that in case Ghelu and his brothers had succeeded to their father as joint owners then any one of them could have represented the interest of the deceased joint owner. Indeed, a Division Bench of this Court in Shiv Ram and Ors. v. Bhagat Ram and Ors. ILR 1978 H.P. 158, held:

When a co-owner dies, his in erest can be represented only by his own legal representatives, and not by his co-owners. In case of joint owners, however, the position is different because the surviving joint owners can represent the interest of the deceased joint owner as effectively as the heirs of the said deceased joint owner can, unless, of course, the peculiar facts of a given case reveal that the deceased joint owners had some adverse claims against the surviving joint owners.

According to Mr. Om Parkash Sharma, learned Counsel for the Respondents, Ghelu and others had succeeded to their father not as joint owners, but only as co-owners. It is pointed out that Dulu was an occupancy tenant and his rights had devolved on his sons Ghelu and others who had inherited the property not under the Mitakshra law but under the customary law.

Mr. Chhabil Dass, learned Counsel for the Appellant, does not dispute that Dulu was an occupancy tenant and his rights had devolved on his sons under the customary law.

Now, the Plaintiffs claim their right to the land on the ground that they were Ghelu''s sons. In case the Plaintiffs have succeeded to Ghelu as joint tenants then each one of them will have the right to represent the estate. However, if they are tenants in common, then one will not be able to represent the other. Mr. Chhabil Dass has drawn my attention to "Digest on Customary Law of Punjab". On page 112, under the heading ''Remark'' it is noticed:

As regards the succession to proprietary rights, the principle of representation generally recognized in the Punjab is that if a man be dead his place is taken by his son, or, if the son also be dead, by the grandson, and in such a case the son or grandson is in just as good a position as the father or grandfather; (1922 68 Ind. Ca 767 at p. 768).

Since the son could represent the father, anyone of Ghelu''s sons would represent Ghelu in respect of the latter''s right in land. Therefore, the absence of legal representatives of Sohnoo deceased does not in any way affect the rights of the Plaintiffs and the appeal, therefore, against the Plaintiffs does not abate.

Now, what is to be found is whether the vendees were put in possession as owners by the vendors of the land in dispute. This is to be deduced from the relevant entries in the revenue records. The first relevant revenue entry after the sale deed executed on 7-12-1894, is relating to 1895-1896. Since the vendors were the occupancy tenants, the entry under the heading name of tenant has to be scrutinised. In this column the names of Bir Singh, Jai Singh and Khushia sons of Sucheta (the vendees) in respect of 3/4th share are mentioned. 1/4th share is shown for Ghelu. Ghelu is shown as a mortgagor. The mortgagee is shown as one Lakhu S/o Chuni. The entries for the year 1899-1900 show the same state of affairs. The entry for this year further shows that the non-occupancy tenants on the whole of the and were persons who were under Bir Singh, Jai Singh and Khushia sons of Sucheta in respect of Kharif and Rabi crops. In the jamabandi for the year 1903-1904 Bir Singh, Jai Singh and Khushia sons of Sucheta have been shown as the owners in respect of 3/4th share. They are also shown as occupancy tenants. For the year 1907-1908, cultivation is shown in the name of these persons only. There is no change for the year 1911-1912. In the year 1915-1916 the cultivation is again shown in the name of these very persons. For the year 1919-1920 these three persons are shown both in the column of owners as well as in the column meant for the names of the cultivators. In the latter column it is specifically mentioned that the land is under the possession of Bir Singh, Jai Singh and Khushia. It is also mentioned that the cultivation is done by Sant Ram etc., non-occupancy tenants under these three persons. The same state of affairs continues in the year 1923-24, 1927-28, 1931-32, 1935-36, 1939-40, 1943-44. For the first time in 1952-1953 Sant Ram and Sohnoo sons of Ghelu are shown in the column of ownership. It is because every person whose name was being shown in revenue records had become an owner by operation of law. The entries leave no doubt that the possession was continuously with the vendees.

The sale deed in question being not effective as regards the 1/4th share of Ghelu, the revenue authorities could not give effect to the same in the revenue record. The result was that whereas for 3/4th share the vendees'' names were mutated, the names of Ghelu or his sons continued to be shown though they were not shown in possession. However, simply because the names of Ghelu or his sons were being shown in the column of cultivation for various years, it does not follow that they were in possession of the land. A Division Bench of the Lahore High Court in Akbar and Ors. v. Tabu and Ors. AIR 1914 Lah 284, ruled:

We agree that possession of one co-sharer is ordinarily possession of all the co-sharers; but the co-sharer in possession can convert his possession into adverse possession by an overt act showing unequivocally to the co-sharers that in future he intends to hold for himself alone, and this adverse possession so begun cannot be stopped by the other co-sharers merely by affirmations that they are co-sharers or by mere applications for partition. It is the business of those co-sharers within limitation actually and effectually to assert their rights and to break up the usurper''s exclusive possession. The mere retention by the revenue authorities of the names of those co-sharers as such after the aforesaid overt act has been, done does not prevent limitation from running against them.

(Emphasis supplied).

This view was followed in Mohammad Hassan v. Sohara and Ors. AIR 1924 Lah 389.

The possession of the vendees in respect of 1/4th share of Ghelu became adverse the moment they came to possess the land as owners despite sale in respect of that share being invalid. ''Reason is that the vendees had started claiming themselves as owners in their own right.

In Punit Mahton and Others Vs. Kishundeyal Mahton and Others, , undivided share was gifted by A in favour of B and B was put in possession. The gift deed was found to be invalid but B had continued in possession for more than 12 years. A Division Bench of Patna High Court held that there can be adverse possession of the share in property though that share had not been divided by metes and bounds.

I find that the lower appellate court did not take into consideration these facts and did not apply its mind to find out whether vendees had been put in possession of 1/4th share of Ghelu after the execution of the sale deed. On the other hand, the learned Judge perused the revenue entries backwards in order to find out the possession. As already stated, once the names of the sons of Ghelu were being shown in the column of cultivators, it was but natural to show their names in the column of ownership because of the operation of law. In these circumstances, these entries were not sufficient to show that the vendees had not been in possession of the land in dispute and bad not completed more than 12 years in adverse possession. There was no occasion to apply the principle that possession of co-sharer is possession of all co-sharers.

The result is that the appeal is allowed, the judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court dismissing the suit is affirmed. No order as to costs.