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Judgment
Romesh Verma, Judge
The present appeals arise out of the common judgment and decree, dated 16.4.2005, as passed by the learned Additional District Judge, Solan, Camp at Nalagarh, whereby the appeal preferred by the defendants/respondents No. 1 to 4 was accepted and the cross-appeal filed by the plaintiffs/cross-objectors/appellants was dismissed and the judgment and decree, dated 30.12.1999, as passed by the learned Sub Judge, Nalagarh, District Solan, decreeing the suit of the plaintiffs/cross-objectors/appellants, was set aside.
2 Brief facts of the case are that the original plaintiff, Pritu @ Pritam (since deceased) filed a suit for declaration with consequential relief for permanent prohibitory injunction in the trial court on 28.5.1995. As per the averments, as made in the plaint, subject matter in dispute is land measuring 5 bighas 19 biswas, bearing Khasra No. 1037 (5-0), 1038 (0-1), 855 (0-6) and 865 (0-12), comprised in Khewat Khatauni No. 1 min/2/3 situated in village Dhang Nihli, Pargana Plassi, Tehsil Nalagarh, District Solan (HP) as entered in the jamabandi for the year 1991-92. As per the case set up by the plaintiff, he was co-owner to the extent of 1/3rd share in the suit land. He never sold his share to defendants No. 1 to 4, namely, Gurdial Singh, Baldev Singh, Bhajan Singh, Dalip Singh, respectively or their predecessor-in-title as at the time of alleged alienation, he was minor and also never inducted defendant No.7, namely, Jagat Singh, as tenant on his share in the suit land as the plaintiff always remained in possession as owner of his share in the suit land. Defendants No. 5 and 6, namely, Ganga Ram and Gianu @ Gian Singh respectively, were never authorized by the plaintiff to alienate his share to other defendants or any other person and contrary revenue record is illegal, null and void.
3 As per plaintiff, the defendants being headstrong and having no regard to law, were threatening to dispossess him from his share of the suit land, cutting and removing standing trees thereon, raising construction and alienating the suit land without having any right and title over the same. It was averred that the plaintiff came to know about illegal revenue record on 24.6.1995, when he obtained copy of jamabandi of the suit land from the Halqa Patwari. The cause of action arose to him firstly on 24.6.1995 when he came to know about illegal revenue record and secondly on 13.8.1995 when the defendants threatened him to fulfill their aforesaid illegal acts and designs and such cause of action is recurring one. Therefore, the suit was filed for granting a decree for declaration to the effect that the plaintiff is co-owner and co-sharer to the extent of 1/3rd share in the suit land and contrary revenue record is illegal, null, void, inoperative, ineffective and against the rights of the plaintiff, as also decree for permanent prohibitory injunction restraining the defendants from dispossessing the plaintiff, raising construction, cutting and removing standing trees and alienating the suit land in any manner till the same is joint inter se the parties.
4 The suit was contested by the defendants by filing separate written statements.
5 Defendant No.8, namely, Gurudwara Fattuwal (Ranguwal), filed written statement-cum-counter claim, wherein it was averred that the subject matter in dispute of counter claim is land measuring 0-18 bighas, bearing Khasra No. 855 (0-6) and 856 (0-12) as comprising in Khata/Khatauni No.1min/3, situated in village Dhang Nihli, Pargana Plassi, Tehsil Nalagarh, District Solan (HP) as entered in the jamabandi for the year 1991-92. It was averred that defendant No.7 never cultivated the suit land and counter claim land in any capacity. Defendant No.1 and his brother, Harnam Singh, father of defendants No. 2 to 4, had given land bearing Khasra No. 882/1 (old) and Khasra Nos. 855 and 856 (new) to defendant No.8 in an oral gift deed, dated 24.10.2002 B.K. regarding which mutation No. 205, dated 1.11.2002 was sanctioned and since then, defendant No.8 is owner in possession of the aforesaid land. Therefore, it was prayed that the suit be dismissed and in the counter claim, defendant No.8 sought relief of perpetual injunction against the plaintiff and defendants No. 1 to 7 restraining them from interfering with the suit land in any manner, owned and possessed by defendant No.8.
6 Defendants No. 1 to 4 filed separate written statement, wherein they raised preliminary objections with regard to maintainability, cause of action, limitation etc. On merits, it was averred that the defendants are in possession of the suit land measuring 5 Bighas 1 Biswa bearing Khasra Nos. 1037 (5-0) and 1038 (0-1) having been purchased in Samvat 2000 B.K. by Defendant No.1 Gurdial Singh and Harnam Singh, father of defendants No. 2 to 4. The vendees were put in possession of the suit land by the vendors. It was averred that the plaintiff and his two other brothers succeeded to the property of their father Kharaiti and also to the properties of other brothers of Kharaiti. All the three brothers namely, Ganga Ram, Gianoo and Pritu had been selling their land on different occasions and no one ever objected to the sale by the other brothers, rather all the three brothers including the plaintiff had been admitting and accepting vendees to be real owners of the suit land. It was further averred that defendants No. 1 to 4, being vendees of the land are in possession of 5 Bighas 1 biswa of land for the last more than 53 years and the possession of the land was delivered to defendant No.1 about 53 years ago. The possession of defendants No. 1 to 4 is open, peaceful and uninterrupted for the last about 53 years. Exclusive and hostile possession of the defendants No. 1 to 4 have ripened into ownership by way of adverse possession. Therefore, it was prayed that suit filed by the plaintiff be dismissed.
7 Defendants No. 5 and 6, who are real brothers of the plaintiff, also filed separate written statement, wherein they stated that they never sold share of the plaintiff to defendant No.1 and his brother Harnam Singh. They sold their own shares to them.
8 The plaintiff filed replication-cum-written statement to the written statement-cum-counter claim of defendant No.8 by reiterating all the averments as made in the plaint.
9 The learned trial court on 12.9.1996 framed the issues in the following manner:-
1.Whether the plaintiff is co-owner of the suit land to be extent of 1/3rd share therein, as alleged? OPP
2.If issue No.1 is proved, whether the entries recorded in the revenue record are contrary, wrong, illegal and void,? OPP.
3.Whether the defendants No. 1 to 4 are owners in possession of 5 Bighas 4 Biswas out of the suit land by way of purchase, as alleged? OPD 1 to 4.
4.If issue No.3 is not proved, whether in the alternative, defendants No. 1 to 4 have become the owners of the suit land by way of adverse possession? OPD 1 to 4
5.Whether the defendant No.8 is owner in possession of the suit land measuring 19 Biswas by way of gift made by defendant No.1 and predecessor-in-interest of the defendants No. 2 to 4, as alleged? OPD
6.Whether the counter claim of defendant No.8 is liable to be decreed? OPD-8
7.Relief.
10 The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial court vide its judgment and decree, dated 30.12.1999 partly decreed the suit of the plaintiff, for declaration to the effect that the plaintiff is co-owner to the extent of 1/3rd share in the suit land comprised in Khewat/Khatauni No. 1 min/2/3, situated in village Dhang Nihli, Pargana Plassi, Tehsil Nalagarh, District Solan (HP), for permanent prohibitory injunction restraining the defendants from raising construction, cutting standing trees on the suit land, till the same is partitioned. Further, counter claim of defendant No.8 was also partly decreed against plaintiff only for permanent prohibitory injunction restraining the plaintiff from interfering with the land bearing Khasra No. 855 and 856, comprised in Khewat/ Khatauni No. 1 min/3, situated in village Dhang Nihli, Pargana Plassi, Tehsil Nalagarh, District Solan (HP).
11 Feeling dissatisfied with the aforesaid judgment, defendants No. 1 to 4 preferred Civil Appeal No. 24-NL/13 of 2000 on 14.2.2000, whereas the plaintiff filed Cross Appeal No.29-NL/13 of 2000 on 13.3.2000 before learned Additional District Judge, Solan, on the ground that the plaintiff had been declared to be co-owner in possession of land measuring 5 Bighas 1 Biswa. The plaintiff was co-owner in the remaining suit land measuring 18 Biswas, therefore, the plaintiff was entitled to a decree for declaration that he was co-owner to the extent of 1/3rd share in the land measuring 18 Biswas comprised in Khasra No. 855 and 856.
12 The learned First Appellate Court vide its judgment and decree, dated 16.4.2005 accepted the appeal as preferred by defendants No. 1 to 4 and dismissed the cross-appeal filed by the plaintiff. The learned First Appellate Court came to the conclusion that defendants No.1 to 4 have become owners in possession of the suit land by virtue of adverse possession and it was held that the suit filed by the plaintiff for declaration of his rights is beyond period of limitation. The findings recorded by the learned trial court that the plaintiff is co-owner to the extent of 1/3rd share in Khata/Khatauni No. 1 min/2/3 and that the suit is within time were held to be not sustainable, however decree for permanent injunction granted in favour of defendant No.8 was held to be sustainable.
13 Feeling dissatisfied by the impugned judgment and decrees, as passed by the learned Courts below, the plaintiff has preferred two regular second appeals being RSA No. 347/2005 and 348/2005, which came to be admitted by this Court on 15.7.2005 on the following substantial questions of law:-
Whether the learned lower appellate court being last court of fact is right in not considering the entire oral as well as documentary evidence led by the parties as required of it in view of the law laid down by the Apex Court reported in 2000 (5) SCC page-752 State of Rajasthan Vs. Harphool Singh.
Whether the learned lower appellate Court is right in not drawing an adverse inference against the respondents/defendants as required under Section 114 (g) of Indian Evidence Act since none of the defendants have appeared as their witness to support their case?
Whether the impugned judgment and decree is the result of complete misreading as well as mis-construction of mutation No.172 dated 26.3.2000 B.K. Ext.DB.
Whether the learned lower appellate court is right in not considering the admission made in the written statement by defendants No.5 and 6 namely, Ganga Ram and Gianu alias Gian Singh from whom the original defendants No.1 to 4 had purchased the share in the suit land who had categorically admitted that they have never sold the share of the plaintiff?
Whether the learned lower appellate court is right in not considering the provisions of Article 65 of the Limitation Act.?
Whether the learned lower appellate Court is right in holding the defendants to be owner by way of adverse possession when neither there was any pleading nor proof by the defendants to substantiate plea of adverse possession?.
Whether the learned lower appellate Court is right in not considering the law laid down by the Hon'ble Apex Court reported in A.I.R. 1965 S.C. page 295 wherein it has been categorically held that there cannot be any estoppel against a co-sharer?
14 It is contended by Ms. Devyani Sharma, learned Senior Advocate, assisted by Ms. Srishti Negi, Advocate, for the plaintiff/appellant(s) that the impugned judgment and decree, as passed by the learned Courts below, are erroneous and not sustainable, therefore, the same are liable to be quashed and set aside and the suit filed by the plaintiff is liable to be decreed as a whole. She has submitted that findings, as rendered by the learned First Appellate Court holding the defendants No.1 to 4 to have acquired title on the basis of adverse possession are totally contrary to the pleadings and evidence available on record. She has further submitted that holding the plaintiff’s suit to be time barred is erroneous on the ground that the suit filed by the plaintiff is well within period of limitation. It is contended by her that once the learned trial court held the plaintiff to be owner in possession of the suit property to the extent of 1/3rd share, then the plaintiff also ought to have been held entitled to 1/3rd share in the land comprised in Khasra Nos. 855 and 856 measuring 18 biswas. Though she has fairly conceded that substantial question of Law No.5, reproduced hereinabove, pertains to Article 65 of the Limitation Act, however, she has restricted her claim and argued only on the provisions of Article 58 of the Limitation Act in order to demonstrate that the suit filed by the plaintiff is well within period of limitation.
15 On the other hand, Ms. Radhika Gautam and Mr. Tara Singh Chauhan, learned Senior Advocate, assisted by Mr. Surya Chauhan, Advocate, have defended the impugned judgments and decrees as passed by the learned First Appellate Court. They submitted that the learned First Appellate Court, after appreciating oral as well as documentary evidence, rightly came to the conclusion that the defendants No.1 to 4 have become owner by virtue of adverse possession on account of their long, uninterrupted and continuous possession for the last more than 50 years. They have further submitted that the suit, which was filed by the plaintiff, deserved to be dismissed and, thus, has rightly been rejected by the learned first Appellate Court as it was beyond period of limitation. Lastly, they have urged that while invoking provisions of Section 100 CPC, this Court will not interfere in the findings of fact, as passed by the learned First Appellate Court.
16 I have heard the learned counsel for the parties at length and perused and scanned the record.
17 The plaintiff field a suit for declaration and permanent prohibitory injunction on the ground that he is co-owner to the extent of 1/3rd share in the suit land. He along with defendants No. 5 and 6 brothers is co-owner of the suit land. He never authorized defendants No. 5 and 6 to alienate his share to other defendants or any other person and in case of alienation, the same is illegal, null and void. According to him, at the time of alleged alienation, which took place on 26.3.2000 BK, he was minor, therefore, defendants No. 5 and 6, being his real brothers, could not have sold his share being a minor. The case, as set up by the plaintiff is that he is co-owner to the extent of 1/3rd share and contrary revenue record is illegal, null and void. He sought permanent prohibitory injunction against the defendants.
18 According to defendants No. 1 to 4, they are owners in possession of the suit land measuring 5 Bighas 1 Biswa bearing Khasra Nos. 1037 (5-0) and 1038 (0-1) having been purchased by defendant No.1 and his brother, Harnam Singh, who is father of defendants No. 2 to 4, from the plaintiff and his brothers, defendants No. 5 and 6 in Samvat 2000 B.K. The vendees were put in possession of the suit land by the vendors. No one ever objected to their ownership and possession, which is open, peaceful and uninterrupted for the last about 53 years. Therefore, they pleaded that their exclusive and hostile possession have ripened into ownership by way of adverse possession.
19 Defendant No.8 set up its claim on the basis of an oral gift deed dated 24.10.2002 B.K. regarding which mutation No. 205, dated 1.11.2002 was sanctioned, whereby defendant No.1 and his brother, Harnam Singh, who was father of defendants No. 2 to 4, had given land bearing Khasra No. 882/1 (old) and Khasra Nos. 855 and 856 (new) to defendant No.8 and since then, defendant No.8 is owner in possession of the aforesaid land.
20 In order to substantiate his case, the plaintiff entered into the witness box as PW1 and deposed that the suit land is 5 Bighas 19 Biswas. He is owner in possession of the 2 Bighas of land. He stated that he never sold his share to Gurdial or Harnam Singh and the revenue record pertaining to the suit land is incorrect. He came to know about the same on 24.6.1995 when he had gone to obtain papers in order to avail loan. In the cross-examination, he stated that he was inducted in the Army in the year 1962 and he remained there till 1978. He stated that he separated from his brothers. He denied that all three brothers used to live together and had sold 22 bighas of land to Jagat Singh. He also denied that this land was donated by Jagat Singh to Gurudwara Fattuwal. He stated that Khairati was owner of 150 bighas of land. After his death, he was succeeded by his three sons, the plaintiff, defendants No. 5 and 6 in equal shares. He admitted that the land which was donated to defendant No.8 by Gian and Ganga Ram, is in possession of defendant No.8. He stated that in the year 1962, consolidation took place. He denied that defendants No. 1 to 4 are in possession of the land measuring 5 bighas 1 biswa. He stated that official of Consolidation Department had prepared common copy. He did not raise any objection since the land of the three brothers was common.
21 PW2 Swarup Singh, deposed that he had been seeing the plaintiff being owner cultivating 2 bighas of land out of total suit land.
22 PW3 Ram Asra also deposed that the plaintiff being owner in possession used to cultivate 2 Bighas of land out of the suit land.
23 In order to rebut the case of the plaintiff, defendant examined DW1 Mahant Dharampal. He stated that he is Mahant of Shri Mandir Fattuwal since 1987. He stated that they cultivate the land of Gurudwara. He has seen the suit land measuring 18 biswas. He used to cultivate the same. This land was given to Gurudwara by way of oral gift deed in the year 1945 by Gurdial and Harnam Singh and since then they are in possession of the same.
24 DW2 Sai Ram deposed that defendant No.1 and his brother Harnam Singh had purchased 6 bighas 1 Biswa land from Ganga Ram etc. about 50/60 years ago. Remaining land was purchased by Jagat Singh from Ganga Ram etc. Jagat Ram gifted part of the land to defendant No.8. He stated that he has accepted and seen defendant No.1 to be owner of the property.
25 DW3 Balwinder Singh deposed that he has brought original General Power of Attorney of defendant No.1, Ext. DW1/A. His father, Gurdial Singh’s second brother’s name was Harnam Singh. Kharaiti had four or five brothers and about 130 bighas of the land situated in Village Dhang. Property belonging to plaintiff and defendants No. 5 and 6 is joint as they are Hindus. Ganga Ram was plaintiff’s guardian because plaintiff was minor. The plaintiff and defendants No. 5 and 6 possess approximately 100 bighas of land situated to the north of the river and a plot measuring 28 Bighas 9 Biswas situated to the south of the river. He also holds 10 bighas of land belonging to Sriram and ors. In Samwat 2000, their elders purchased the share belonging to Ganga Ram and Gianu, totaling 6 Bighas and 1 Biswa out of a total landholding of 28 Bighas and 8 Biswas for a price of Rs.290/-. Thereafter 22 Bighas and 8 Biswas of land remained there was sold on 3.5.2002 to defendant No.7 for Rs.2500/-. Subsequently, their elders executed a gift deed for 16 biswas of land in favour of defendant No.8. With respect to all the aforementioned land, Ganga Ram and Gianu acknowledged in the registered deed that if the plaintiff agreed, he could claim his share from their portion upon becoming the owner. However, none of them i.e. plaintiff or defendants No. 5 and 6 ever raised any objection to this. The plaintiff never raised any objections regarding defendants No. 1 to 4 possession or ownership. They considered themselves to be the owners in possession of the land measuring 5 Bighas 1 Biswa. After purchasing the land, they did not recognize the plaintiff or his brothers as the owners of the disputed land. 16 Biswas of land belonging to defendant No.8 became 18 biswas as a result of this suit.
26 As regards revenue records, which have been placed on record, Ext. DB is copy of mutation No. 169, whereby defendants No. 5 and 6 sold land measuring 6 Bighas 1 Biswa to defendant No.1 Gurdial and his brother Harnam Singh. As per the revenue record, i.e. Ext. DO, DM, DL, DK, DJ, DP, DF, DH, DQ, since 1961 to 1998, plaintiff has been shown to be co-owner along with defendants No. 5 and 6.
27 In the present case, defendants No. 1 to 4 have taken plea of oral sale and adverse possession. It is the case of defendants No. 1 to 4 that they purchased the suit land from defendants No. 5 and 6 in Samwat 2000 B.K. and further stand has been taken in para 2 of the written statement that they are in possession of the suit land measuring 5 Bighas 1 Biswas for the last more than 53 years and the said possession is open, peaceful and uninterrupted and they have acquired title by virtue of adverse possession.
28 As per mandate of the Hon’ble Supreme Court, as well as various judgments passed by this Court, plea of oral sale as well as adverse possession are contradictory pleas.
29 In RSA No. 467/2004, titled as Hemendra Singh (deceased) through LRs vs. Om Prakash (deceased) through LRs, decided on 30.07.2024, this Court has held as under:-
47.On the one hand, defendants are taking the plea of title on the basis of oral sale, which has not been proved, in this case, and on the other hand, plaintiffs have taken the plea of adverse possession.
48.In this case, the plea of title has not been proved. As such, burden is heavy upon the defendants to prove the plea of adverse possession. While holding so, the view of this Court is being guided by the Hon’ble Supreme Court in a case titled as, “L.N. Aswathama & ors. Vs. P. Prakash’, reported in (2009) 13 SCC 229. Relevant paragraph-25 of the judgment is reproduced as under:
“25.When defendant claimed title and that was proved to be false or fabricated, then the burden is heavy upon him to prove actual, exclusive, open, uninterrupted possession for 12 years. In this case we have already held that he did not make out such possession for 12 years prior to the suit. While the plaintiffs have made out a clear and absolute title of the property, the defendant has not been able to make out title or adverse possession for more than 12 years. The High Court did not examine any of these aspects and by a cursory judgment, reversed the well considered judgment of the trial Court. Therefore, the decision of High Court cannot be sustained.”
49.This view has again been reiterated by a three judges Bench of Hon’ble Supreme Court in a case titled as, “Narasamma & others versus A. Krishnappa”, reported in AIR 2020 SC 4178, in which, it has been held that plea of title and adverse possession are contradictory pleas, which are not permissible to be taken by the parties. Relevant paras 31 to 33 are reproduced, as under:
31.The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession, i.e., whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by learned counsel for the respondent herein, which succinctly set forth the legal position.
32.In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that “….the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced….”
33.The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs., which observed in para 4 as under:
4.As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession
is not available to the appellant.” 50. In Narsamma’s case (supra), the Hon’ble Supreme Court has given the ingredients to constitute adverse possession. Relevant paras-30 and 37 of the judgment, are reproduced as under:
“30.We also find that the reliance placed by learned counsel for the appellants in Ravinder Kaur Grewal & Ors. is also misplaced. The question which arose for consideration before the three Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge. Xxx xxx xxx
37.We may also note another judicial pronouncement in Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr. dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.”
51.In view of above, this Court is of the view that the findings of the learned First Appellate Court are not based upon the evidence, as defendants have taken the destructive pleas, i.e. title, by way of oral sale, as well as, adverse possession and plea of adverse possession, that too, without placing on record the documents, by virtue of which, they allegedly came into possession.
30 In Kehar Singh vs. Ramesh Chand, (2015) 3 HLR 1486, the Hon’ble Supreme Court has held as under:
12.Plea taken by the defendants is in fact contradictory. They cannot be allowed to blow hot and cold, in the same breath. They can either plead and claim ownership on the strength of sale deed or adverse possession. Any which way, findings returned by the Courts below, which are based on complete, careful and correct appreciation of the evidence, cannot be said to be erroneous or perverse.
31 As observed above, plea of oral sale and adverse possession are contradictory pleas and the same has been taken by defendants No. 1 to 4 in the present case. The learned First Appellate Court, vide the impugned judgment and decree, has held defendants No. 1 to 4 to have acquired title by way of adverse possession.
32 The Hon’ble Apex Court in various decisions have repeatedly held that mere possession however long it may be does not necessarily mean that it is adverse to the true owner. In order to acquire the title by adverse possession, the said possession has to be in denial to the true owner’s title. The animus possidendi is well known ingredient to acquire the title of adverse possession. Mere possession does not ripen into possessory title until and unless it is proved that it is adverse to the true owner and to the knowledge of the title holder. Further, the Hon’ble Supreme Court has laid down the exposition of law qua adverse possession in the following manner:
In T. Anjanappa and ors. vs. Somalingappa and another, (2006) 7 SCC 570, the Hon’ble Supreme Court held as under:
“12.The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13.Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them.
“24.It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co- owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owner.
14.Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.
"Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.
15.An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq.29). Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation.
16.xxx xxx xxx
17.According to Pollock, "In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others".
18 & 19 xxx xxx xxx
20.It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.”
In Chatti Konati Rao and others vs. Palle Venkata Subba Rao, (2010) 14 SCC 316, the Hon’ble Apex Court further held as under:
“13.What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows:
"11.In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, 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. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma
14.In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter.
33 Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.”
34 The defendants No.1 to 4 in order to establish their case and to get the relief of adverse possession were required to place on record clear evidence showing the precise date, month and year when the adverse possession commenced and remained so peacefully, openly and continuous to the knowledge of the true owner.
35 The exposition of law qua adverse possession has been further dealt with in Vasantha vs. Rajalakshmi, 2024 (5) SCC 282, wherein the Hon’ble Supreme Court has held as under:
20.In Saroop Singh v. Banto (2-Judge Bench), this Court observed that Article 65 states that the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. Further relying on Karnataka Board of Wakf v. Govt. of India (2-Judge Bench), it observed that the physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases related to adverse possession. Plea of adverse possession is not a pure question of law but a blend of fact and law. Therefore, a person who claims adverse possession should show :
(a)on what date he came into possession;
(b)what was the nature of his possession;
(c)whether the factum of possession was known to the other party;
(d)how long his possession has continued; and
(e)his possession was open and undisturbed.
A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to prove his adverse possession.
36 Therefore, in order to acquire title by way of adverse possession, a party is required to plead, prove and place on record showing particulars, date, month and year when the adverse possession commenced and remained peaceful, and is continuous to the knowledge of the true owner. In the instant case, the pleadings and proof qua that aspect is totally missing and perusal of the written statement as filed by defendants No. 1 to 4 only states that defendants No. 1 to 4 being vendees of the land are in possession of 5 Bighas 1 Biswa of the land for the last 53 years. The possession of the defendants No. 1 to 4 of the land is open, peaceful and uninterrupted for the last about 53 years and the said hostile possession of defendants No. 1 to 4 have ripened into ownership by way of adverse possession. Neither there is averment about the date or month or the year and all the ingredients as laid down by the Hon’ble Supreme Court in the aforesaid judgments are lacking in the pleadings.
37 As far as proof is concerned, the defendants themselves did not enter the witness box rather they examined one Balwinder Singh, being General Power of Attorney of defendant No.1, who while appearing as DW3 deposed on their behalf. In the entire testimony of DW3, there is no averment with regard to the case of adverse possession, as set up by defendants No. 1 to 4. Only averment which he has made in his deposition is that they consider themselves to be owners and possessors of the land measuring 5 Bighas 1 Biswa. The essential elements and ingredients required to prove adverse possession are missing in the pleadings as well as in the evidence.
38 Even witnesses, which were examined by defendants in order to substantiate their case, have not deposed on that aspect. The findings as returned by the learned First Appellate Court are dehors the pleadings and record, which require interference by this Court.
39 The case file shows that the defendants No. 1 to 4 have failed to prove their case by pleading adverse possession and under such circumstances, findings rendered by the learned First Appellate Court qua that aspect deserves to be quashed and set aside. The First Appellate Court has erred in holding that the defendants No.1 to 4 have become owners by virtue of adverse possession.
40 The learned first appellate Court has come to the conclusion that the suit filed by the plaintiff for declaration and injunction was filed beyond period of limitation. Therefore, it was held that the suit filed by the plaintiff is not within period of limitation.
41 The case as set up by the plaintiff is that the alleged oral sale was executed by defendants No. 5 and 6 in Samwat 2000 B.K., at the time when he was minor. The revenue record, which has been placed on record clearly shows and suggests that the plaintiff is one of the co-owners of the suit land till 1991-92. The defendants No. 1 to 4 have not taken any steps to deny title of the plaintiff having been shown as one of the co-owners in the revenue records. It is case of the plaintiff that he served in the Army and after retirement, he was not knowing about factum of changes made in the revenue entries and he came to know about illegal revenue entries for the first time on 24.6.1995 when he obtained copy of jamabandi of the suit land from the Halqua Patwari and thereafter on 13.8.1995 when the defendants threatened him to fulfill their illegal acts and designs.
42 During the pendency of the appeal before the learned First Appellate Court, an additional issue was framed on 17.8.2002 in the following manner:-
Whether suit is not within limitation, as alleged?
43 The findings on the said issue were called by the learned first appellate court from trial court, who after recording the evidence vide its order dated 30.10.2002 came to the conclusion that the suit is within period of limitation.
44 Even in his deposition, the plaintiff stated that he came to know about the illegal entries on 24.6.1995. He stated that he is the owner of 2 bighas of the land and the same is in his possession. He stated that in the year 1962 he was recruited in the Army and retired from the same in the year 1978. In the cross-examination, the defendants No. 1 to 4 could not extract anything material from the plaintiff qua the same.
45 In the present case, the plaintiff is being shown as co-owner in the revenue record. It is well settled principles of law that a person cannot make alienation over and above of his share. The alienation, if any, has been made by defendants No. 5 and 6 was of their own share and they could not have sold the share of minor plaintiff. It is the case of the defendants No. 5 and6 in their written statement that they never sold share of the plaintiff and they sold only their own share. Meaning thereby after said alienation, the plaintiff became co-owner along with defendants No.1 to 4. The legal principle of law is that possession of one co sharer is the possession of all.
46 The said proposition has been reiterated by this Court in RSA No. 4323/2013, titled as Pushpa Devi vs. Amro Devi, decided on 2.12.2016, wherein it was held as under:-
8.One Nathu had three sons,namely, Mangat Ram, predecessor-in-interest of the plaintiffs, Hamir Chand, predecessor-in-interest of the defendants and One Minjroo. The suit property stands located upon khasra No.1724. In the relevant revenue records, the suit property stands reflected to be in the joint ownership of the parties at contest, sequel, whereof is qua thereupon standing aroused the principle of joint tenancy wherewithin the trite legal nuance is held qua until its dismemberment occurs by metes and bounds, the recorded co-owners holding unity of title besides community of possession therein, whereupon any exclusive holding of possession by any of the co-owners of the jointly recorded suit property, renders his holding possession thereof to be construable to be possession also on behalf of the other recorded co-owners, thereupon he stands disabled to despite the factum of exclusivity of his possession, oust the legitimate claim qua joint possession thereof of other co-sharers besides any co-owner holding exclusive possession of joint property not holding any leverage to forestall other co-owners to beget its partition by metes and bounds.
47 In Md. Mohammad Ali vs. Jagadish Kalita, (2004) 1 SCC 271, the Hon’ble Supreme Court has held as under:-
25.Possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharers would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. No such finding has been arrived at by the High Court.
48 The revenue entries show the plaintiff to be co-owner in the column of ownership and the defendants No.1 to 4 are found to be in possession of the suit land as purchasers. No denial to the title of the plaintiff has been proved. The principle that a co- sharer possesses the property not only for himself but on behalf other co-sharers applies in the instant case. The denial of the title of the plaintiff has not been proved.
49 While leading the evidence on the issue of limitation, DW3 Balwant Singh has not stated in his examination-in-chief that title of the plaintiff was ever denied by the defendants No. 1 to 4. On the principle that a co-owner possesses the property on behalf of the other co-owner, which is applicable in the present case, and once it is held that the plaintiff would be deemed to be in possession through the defendants, then, it cannot be said that the suit filed by the plaintiff is barred by limitation.
50 The learned senior counsel for the appellant/plaintiff has vehemently stated that right to sue accrues to a party when the actual rights of the parties are infringed. She has stated that it is only on 24.6.1995 when the plaintiff came to know about the illegal revenue record and secondly on 13.8.1995 when the defendants threatened the plaintiff to fulfill their nefarious and illegal designs.
51 The expression right to sue has been succinctly explained in Mt. Bolo v. Mt. Koklan AIR 1930 PC 270.
52 In Rukhmabai vs. Lala Laxminarayan, AIR 1960 SC 335, their Lordships of the Hon’ble Supreme Court have held that there can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. Their Lordships have held as under:
“31.The argument on the question of limitation is put thus: The plaintiff, respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at any rate, during the pendency of the partition suit between Rukhmabai and Chandanlal instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Art. 120 of the Limitation Act. Article 120 of the Limitation Act reads: Description of suit Period of Time from which limitation period begins to run
120.Suit for Six years When the right which no period to sue accrues limitation is provided elsewhere in this schedule. This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Court of various States. The leading decision on the subject is that of the Judicial Committee in Bolo v. Koklan (1). Therein, Sir Benod Mitter, observed: "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."
32.The said principle was restated and followed by the Judicial Committee in Annamalai Chattiar v. A.M.K.C.T Muthukaruppan Chettiar (2 ) and in Gobinda Narayan Singh v. Shain Lal Singh (3). The further question is, if there are successive invasions or denials of a right, when it can be held that, a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secretary of State (4), a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasiibba Rao, J., after considering the relevant decisions, expressed his view thus: " There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit ". He adds at p. 199: " It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action ? "
53 In RSA No. 556/2004, titled as Shankar Lal vs. Ramesh Chander, decided on 22.11.2016, this Court has held as under:-
15.The learned counsel appearing for the defendants’ has contended qua the suit of the plaintiffs being barred by limitation, it standing instituted beyond the prescribed period mandated in Article 58 of the Limitation Act. However, the aforesaid submission cannot stand accepted by this Court, as the aforesaid apposite article of the Limitation Act while prescribing the commencement of the relevant period of limitation proclaims qua the relevant commencement for computing therefrom the period of limitation encapsulated therein occurring on an accrual of “right to sue”, right to sue whereof holds a connotation qua its spurrings or occurrings arising on actual and threatened invasion(s) qua the settled right of the plaintiff(s) upon the suit property. In sequel when the connotation borne by the apposite statutory parlance ‘right to sue’ is qua its upsurging on the defendant(s) committing overt act upon the suit property hence theirs explicitly pronouncing theirs casting cloud qua the title of the plaintiff(s) qua the suit land whereupon even if mutations qua the suit property stood attested on 24.12.1994 and 20.11.1999 whereas the suit of the plaintiff stood instituted in the year 2001 would not render it to be construable to stand instituted beyond limitation, as merely on attestation of relevant mutations which palpably are nonest besides stand recorded in deprivation of the vested rights of the plaintiffs qua the suit property no title hence standing invested upon the suit land qua defendant No.2 rather when the plaintiffs’ title to the suit land stood explicitly annulled besides came under a cloud by the proactive overt act of defendant No. 2 executiing sale deeds respectively on 3.11.1999 and 5.5.2001, with defendant No. 1 constituted the latter period to enliven thereat the relevant cause of action or it begot the commencement of the relevant period of limitation for the plaintiffs’ instituting a suit. In sequel thereto with the plaintiffs therefrom instituting the suit within the statutorily mandated period of limitation prescribed in the relevant Article of the Limitation Act renders it to be construable to be within limitation.
54 In Prakasho Devi vs. Basheshar Singh (2001) 2 SLC 354, it was held as under:-
10.In the present case, learned First Appellate Court, after appreciation of the evidence, found, as a matter of fact, that inspite of the attestation of mutation of 1/4th share of Chuhru in favour of defendants No. 1 and 2, the plaintiffs continued to be in possession and their possession was never in dispute. He particularly referred to the statement of Kirpalu son of Shri Filo (PW 1) and copies of the revenue record in terms of jamabandis for the year 1971-72 (Ext. P1), 1975-76 (Ext. P2), 1982-83 (Ext. P3) which shows the possession of the plaintiffs over the disputed land. The learned Additional District Judge observed :
“…the suit land is in possession of the plaintiffs and no part thereof is recorded to be in possession with the respondents.”
11.I find, even Parkasho Devi, appearing as DW1, did not claim int possession with the plaintiffs. What she stated was that she co- sharer in the suit land. In these circumstances, inspite of estation of the mutation of 1/4th share of Chuhru in favour of de defendants in the year 1973, no cloud was cast on the title the plaintiffs.
12.Article 58 of the Limitation Act, 1963 provides for a limitation three years to obtain declaration and the period begins to run when the right to sue first accrues". Article 58 is a residuary Article under the Limitation Act, 1963. The suit for declaration, which was governed by any other Article in the Act, was covered by residuary article 120 of 1908 Act and such a suit now indeed is governed by Article 58 of the 1963 Act.
13.It may be noticed, the limitation period of three years commences from the date when the right to sue first accrues but de the question is when the right to sue accrues. In my view, the right is sought is denied or challenged. A mere entry in the revenue papers of the name of the defendants as co-owner of the property, without any act of denial on the part of such defendant(s) will not provide a cause of action to sue would accrue when right in respect of which declaration. There is no scope of dispute that mutation of 1/4th share of Chuhru was wrongly attested in favour of the defendants and it is only because of this illegal attestation of mutation that entries in the revenue record showing the defendants as co-sharers to the extent of 1/4th share of Chuhru were incorporated. In these circumstances, the right to sue would accrue to the plaintiffs only when their possession was threatened or an application for partition on the basis of these entries was filed in the Revenue Court.
55 The aforesaid exposition of law holds that the limitation period of three years commences from the date when right to sue first accrues but the question is when the right to sue accrues. Right to sue would accrue when right in respect of the fresh declaration is sought is denied or challenged. Mere entry in the revenue papers of the name of defendants as co-owner of the property without an act of denial on the part of such defendant will not provide a cause of action. There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.
56 In the present case, there was no infringement or any clear and unequivocal threat to the rights of the plaintiff till the year 1995 when the suit as stated above was instituted, therefore, the suit, as filed, is very much within period of limitation.
57 It is settled law that cause of action to obtain declaration under article 58 of the Limitation Act would only accrue if the rights of the plaintiff are invaded by an overt act. So long as the mutation does not injure the plaintiff, he need not come to the Court at all. Therefore, the plaintiff is not out of time if he institutes a suit on a subsequent date.
58 A suit for declaration of a right and injunction restraining the defendants from interfering with the access of right is governed by article 58 of the Limitation Act. Therefore, this Court is of the considered view that the findings of the learned first Appellate Court holding the suit filed by the plaintiff to be time barred are not sustainable and deserve to be quashed and set aside. The suit filed by the plaintiff is held to be within period of limitation.
59 As observed above, record reveals that defendants No.1 to 4 did not enter the witness box in support of their claim, rather DW3 Balwant Singh GPA of defendant No.1 has deposed on their behalf. DW3 has stated his age to be 63 years as on 11.3.1999. The oral sale being set up by defendants No. 1 to 4 pertains to the year 1942-43, meaning thereby at the time of alleged oral sale, he was about 6 or 7 years old and was thus, minor. Therefore, he could not have deposed qua the sale and adverse possession on behalf of the defendants No. 1 to 4. The Hon’ble Supreme Court, in catena of its decisions, has drawn adverse inference where only GPA holder enters the witness box and not the plaintiff.
60 In Vidhyadhar vs. Manikrao, (1999) 3 SCC 573 (DB), the Hon’ble Supreme Court has held as under:
16.Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.
61 Similar reiteration of law can be found in Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. (2005) 2 SCC 217.
62 Therefore, adverse inference is required to be drawn against the defendants No. 1 to 4 for not entering the witness box. The learned trial court has rightly come to the conclusion that no person can transfer title or right greater than his own. The plaintiff has set up the case that he never authorized defendants No. 5 and 6 to sell his share and the said fact has been admitted by the said defendants in their written statement. The defendants No. 5 and 6 could not have sold the share of the plaintiff that too when he was minor and even could not have transferred greater rights than they were possessing and said principles of law have been laid down by the Hon’ble Supreme Court in Suraj Rattan vs. Azamabad, AIR 1965 SC 295, wherein it was held as under:
16.In order that s. 41 of the Transfer of Property Act could be attracted, the respondents should prove that Ismail was the ostensible owner of the property with the consent of his co- sharers and besides that they took reason-able care to ascertain whether Ismail had the power to make a transfer of the full 16 as. interest. Now, the facts however were that except the property being entered in the revenue records in Ismail's name, and that the management of the property was left by the co-sharers with Ismail, there is not an iota of evidence to establish that Ismail was put forward by them as the ostensible owner of the property. It is manifest that the conduct of co-sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights. The learned Judges have also pointed out that even the least enquiry by the mortgagee would have disclosed that Ismail was not the full owner and this finding was not seriously challenged before us. In this view it is unnecessary for us to consider the submissions made to us by Mr. Desai that s. 41 was inapplicable to cases of sales in court auctions for the reason that what the court is capable of selling and what is sold in execution of a decree is only the right, title and interest of the judgment-debtor and nothing more. We, therefore, hold that the learned Judges of the High Court rightly held that s. 41 of the Transfer of Property Act afforded no defence to the respondents.
63 As far as counter claim as filed by defendant No. 8 is concerned, both the courts have concurrently and rightly held that on the basis of the oral gift, defendant comprised in Khasra No. 855 and 856 and the said fact has also been admitted by the plaintiff in his deposition, therefore, such findings do not call for any interference and deserve to be upheld by this Court. The substantial questions of law are answered accordingly.
64 No other point was urged by the learned counsel for the parties.
65 In view of aforesaid discussions and for the reasons stated hereinabove, RSA No. 348/2005, filed by the plaintiffs/appellants, arising out of judgment dated 16.04.2005, passed in Civil Appeal No. 24-NL/13 of 2000, is allowed, whereas RSA No. 347/2005, filed by the plaintiffs/appellants arising out of judgment dated 16.04.2005, passed in Cross Appeal No. 29-NL/13 of 2000, is dismissed. Consequently, the impugned judgment and decree, dated 16.4.2005 as passed by the learned first Appellate Court, dismissing the suit of the plaintiffs/appellants, is quashed and set aside and judgment and decree, as passed by the learned trial court is restored. Decree for permanent injunction in favour of defendant No.8, as concurrently passed by the learned Courts below, is upheld. Pending application(s), if any, also stands disposed of.