Ragho Ram vs Shivji

Niamat Ullah, President

This is a Plaintiff's appeal, preferred in pursuance of special leave granted by the Board on 5-9-1952, from the decree of the High Court passed in a suit brought by the Plaintiff-appellant for recovery of possession of certain properties originally belonging to his father Sudarshan Bat.

The Plaintiff's case as stated in the plaint is that his father Sudarshan Bat had five sons whose names are mentioned in the first paragraph of the plaint. Of these, 2 including the Defendant-respondent Shivji had been adopted away to other families; of the remaining 3, 2 died issueless and unmarried, with the result that the Plaintiff became the sole heir of his father and as such entitled to all the proper- ties left by him. He alleged that though the Defendant Shivji had ceased to be a member 0f his father's family, he managed to obtain possession of 2 items of properties (now claimed by the Plaintiff) a few years before the in stitution of the suit.

The Defendant Shivji contested the (sic) on a variety of grounds, but on the facts found by the High Court, the position of the parties may be briefly stated :

As alleged by the Plaintiff, 2 out of the five sons of Sudarshan had been given in adoption by the latter and he was survived by his 3 sons including the Plaintiff, the other two being Gopi Nath and Damodar. Sudarshan died in S. 1978. In the ordinary course mutation of names was effected in favour of these persons. In S. 1984 the Defendant Shivji made-an application that he was entitled to a (sic) share in the properties left by his father but that "through some error" his name had been left out. Accordingly he claimed the entry of his name in co-sharership with the three persons named above to the extent of 1/4th in all. the properties.

It is not clear whether Shivji had, on that occasion, denied his own adoption or in Spite of such adoption he claimed a share ander some custom obtaining in the family. His claim in the revenue Court for entry of his name in respect of 1/4th share was not contested by anyone. It appears that the Plaintiff was present when Shivji's claim came up for consideration but he did not contest it. The other two brothers of the Plaintiff had apparently died before the time. It is now alleged by the Plaintiff that he was a minor and that Sraivji took undue advantage of his position and in collusion with the revenue officials got the entry of his name to the extent of 1/4th of the property.

It is true that the Plaintiff was a minor in 1984. In his own statement in the present case he has given the date of his birth as 15th Poh 1968; he was thus aged 16 in the S. year 1984 when Shivji obtained mutation of names in his favour to the extent of 1/4th. There is force in the Plaintiff's contention that the entry of his name conferred no title on Shivji even though it Was made with the Plaintiff's consent. The matter, however, does not rest on that conclusion. It has been found by the High Court that Shivji remained in possession of 9 kanals and 7 marlas of land situated in Magam for more than 12 years before the institution of the present suit, and has acquired full ownership by adverse possession. This finding has been challenged before the Board.

To appreciate the finding of the High Court a few more particulars of the properties left by Sudarshan must be stated. He had agricultural land in three villages; (1) 9 kanals and 7 marlas in village Magam now in dispute, (2) lands in village Sabden and (3) lands in village Manahama. As already stated, all these lands were mutated in favour of 3 sons of Sudarshan (not including Shivji) but in 1984 Shivji obtained mutation in respect of 1/4th share in each of these 3 villages. He Should have been in possession of only 4th share of property No. 1, viz. only 2 kanals and odd, but according to the finding of the High Court, he actually obtained possession of the entire area of 9 Kanals and 7 Marias, under an arrangement with the Plaintiff who remained in possession of all the lands in village Manahama including the one-fourth mutated in the name of Shivji.

It is not disputed by the Plaintiff that Shivji was not in possession of any part of the land in Manahama. Accordingly the Plaintiff has sued for ejectment of Shivji from 9 Kanals and 7 Marias of land of village Magam and 1/4th share in village Sabden and not from any part of the land in Manahama. As regards the lands in Sabden, according to the finding of the High Court, Shivji was not in possession for full 12 years, hence the Plaintiff's suit with regard to this land has been decreed and there is no controversy before the Board in respect (sic) that land.

As regards the land in Magam, the finding of the High Court may be quoted in full: it appears that Shivji not having entered into possession of the land which was mutated in his name in Manihama he was allowed to hold the whole plot of land i.e. 9 Kanals and 7 Marlas situate at Magam. The Plaintiff's case is that Shivji had taken possession of this whole land only four or five years before the suit was instituted. But a reference to the revenue records would show that Shivji had been in possession of this and situated at Magam right from the year 1985. The Patwari has categorically stated by a reference to the revenue record that Shivji was in possession of the land situate in Magam from the year 1985 right upto 2002. Under these circumstances we do not agree with the lower appellate Court that the adverse possession of the Defendant is established only to the extent of 2 Kanals and 11 Marias. On the contrary we hold that it having been established that the possession of Shivji as owner continued from 1985 right upto 2002, we find that his possession over 9 Kanals and 7 Marlas of land situate in magam is matured into title by adverse possession.

If this finding is accepted the Plaintiff's case must fall to the ground. It has been, however, strenuously argued by his learned Counsel that the evidence referred to by the High Court does not support that finding and that the evidence has in fact been mis-read by it. Stress is laid on the fact that the Plaintiff was minor and that there is hardly any evidence in support of the High Court's view that Shivji "was allowed to hold the whole plot of land" in village Magam.

We have carefully considered the contention put forward on behalf of the Plaintiff but are not satisfied that the finding of the High Court is vitiated by any such error as is suggested by the Plaintiff's learned Counsel. The Plaintiff attained majority about 2 years after the entry of Shivji's name in the revenue record in 1984 with his consent but he did not bring his suit in time. On the contrary he reconciled himself to the arrangement, express or implied, under which Shivji obtained mutation of names in his favour. There can be no doubt that there was some arrangement under which Shivji obtained a share in the property left by his natural father. It may be that through ignorance or otherwise, the Plaintiff remained reconciled to that position till he brought the present suit but it is too late for him now to challenge the right acquired by Shivji by adverse possession.

The only question is whether he has remained in possession of the entire land since 1984 or he has been in possession thereof only for 4-5 years as alleged by the Plaintiff. The High Court's finding that Shivji has remained in possession of the entire land since 1984 cannot be characterised as a finding based on no evidence. We have referred to the Patwari's evidence and the entry in the revenue record which he proved in the trial Court.

While the entries are not free from ambiguity, the evidence taken as a whole on this part of the case does not appear to have been mis-read by the High Court as contended by the appellant's learned Counsel. The Board did not feel called upon to go into this question of fact but as leave to appeal had been granted by the Board itself we examined the materials on which the High Court based its finding and see no reason to differ from it.

In the result we sustain the decree of the High Court and humbly advise the Sadar-i-Riyasal to dismiss this appeal but make no order as regards costs.