Raj Singh and anr. vs Prem Singh and ors.

J.V. Gupta, J.

This judgment will also dispose of Regular Second Appeal No. 771 of 1978, as both these appeals have arisen out of the same judgment of the Additional District Judge, Hissar, dated 18.1.1978.

One Jaswant Singh was the original owner of the suit property. He died somewhere in the year 1965 leaving behind his widow Bhullan and his son Mangal Singh. Mangal Singh also died in the year 1968, leaving behind two sons, Raj Singh and Karam Singh plaintiffs. Jawant Singh had a brother Girdhala, who died leaving his widow Lado. Lado adopted Prem Singh son of Mangal Singh. Jaswant Singh, during his life time, gave certain land to Pat Ram defendant for cultivation. The land was Banjar at that time. Report to this effect was made with the Patwari in the year 1954, copy Exhibit P.4. However, no mutation was sanctioned on the basis of the said report and the same was rejected vide mutation copy Exhibit P.7. Subsequently, in the year 1955, mutation was sanctioned in favour of Pat Ram on 16.8.1955 copy Exhibit P.25. Therein, it was reported by the Patwari that Jaswant Singh had given land to Pat Ram on a tenure known as `Adhlapi''. Later on, Pat Ram exchanged the said land given to him by Jaswant Singh with Pirthi Singh and Surjit Singh defendants on 2.4.1965. The plaintiffs Raj Singh and others filed the present suit on 18.12.1973, on the basis of their title against Pat Ram, Pirthi Singh and Surjit Singh defendants alleging that they were in illegal possession of the suit land.

The suit was contested on the ground that the plaintiffs are not the owners of the suit land. According to the defendants Pat Ram defendant obtained the property rights from the previous owner Jaswant Singh vide report dated 18.7.1955, on the basis of which mutation No. 1216 was sanctioned on 16.8.1955, and that Pat Ram was, therefore, fully competent to exchange the suit land with defendant Nos. 3 and 4. It was further pleaded that Prem Singh adopted son of Girdhala, by his widow Lado was competent to sell his share in favour of the defendants, and the plaintiffs have no cause of action to claim the said land under the sale deed. The trail Court found that the plaintiffs are not proved to be the owners of one half share of the land in dispute. Rather it is proved that Pat Ram defendant is owner of this onehalf share of the suit land. It was further found that the story of the plaintiffs that the defendants have forcibly occupied the suit land after Rabi 1973, was not proved, rather it was proved that the defendants were in cultivating possession of the suit land much earlier to Rabi 1973. In view of these findings, the plaintiffs'' suit was dismissed. In appeal, the learned Additional District Judge, reversed the said finding of the trial Court as regards ownership of the plaintiffs. It comes to the conclusion that the defendants claimed themselves to be the owners vide mutation copy Exhibit P.5 dated 16.8.1955, and by that time, the Transfer of Property Act, was made applicable to the State of Punjab on 1.4.1955 and since the gift deed was not registered the defendants could not claim themselves to be the owners under the said alleged gift deed. In view of that finding the plaintiffs'' suit with respect to the land, of which the defendants claim to be the owners vide mutation Exhibit P. 25. was decreed. However, with respect to the suit land which was sold by Prem Singh to the defendants, the plaintiffs'' suit was dismissed. Dissatisfied with the same, the plaintiffs have filed the Regular Second Appeal No. 1069 of 1978 whereas the defendants have filed the Regular Second Appeal No. 771 of 1978.

The learned counsel for the defendantappellants submitted that the whole approach of the lower appellate Court in coming to the conclusion that the gift was made on 18.7.1955 and, therefore, requires registration was wholly wrong, illegal and misconceived. According to the learned counsel, it was wrong to say that vide mutation copy Exhibit P.25, land was given to Pat Ram by Jaswant Singh by way of gift, rather the land was given on a tenure known as `Adhlapi'' as defined in para 173 of the Punjab Settlement Manual by Douie, 4th Edition. Thus, argued the learned counsel there did not arise any question of gift or registration. The defendant Pat Ram became its owner because he was given Banjar land by Jaswant Singh which was made cultivable by Pat Ram and in lieu thereof one half of the land was given to him under the said tenure known as `Adhlapi''. After Pat Ram had become its owner under the said tenure, he validly transferred it by way of exchange in favour of Pirthi Singh and Surjit Singh defendants. On the other hand, the learned counsel for the plaintiff respondents, submitted that this was never the case set up by the defendants in the written statement. According to the learned counsel, the case set up was that it was a gift and since gift will be deemed to have been made on 16.8.1955 when the mutation Exhibit P.25 was sanctioned in favour of Pat Ram, the same requires registration and since it was never registered no valid title passed to Pat Ram. Moreover argued the learned counsel, the possession was transferred to Pat Ram in the year 1956 and therefore, the possession was not delivered at the time of the gift on 16.8.1955. An argument was also raised that during the pendency of this appeal Mst. Bhullan widow of Jaswant Singh had also died and, therefore the plaintiffs are also entitled to her share in the suit land.

I have heared the learned counsel for the parties and have also gone through the relevant evidence on the record. In the written statement of defendants in paragraph 5 thereof based their title on the basis of the mutation No. 1216 dated 16.8.1955 copy Exhibit P.25. It appears that both the counsel for the parties as well as the Courts below of gift. From the persual of the said copy, it is quite evident that the land was given by Jaswant Singh to Pat Ram on `Adhlapi'' tenure and not by way of gift as found by the Courts below. `Adhlapi'' tenure is well defined as provided in para 173 of the Punjab Settlement Manual by Douie. According to the said definition a man who sinks a well in land which does not belong to him, with the owner''s permission, becomes proprietor of half the land which it commands. He very commonly cultivates or arranges for the cultivation of the whole of the land, takes half of the proprietor''s share of the produce, and pays half the land revenue. It was, therefore, under that tenure that Pat Ram was given half of the land by Jaswant Singh and he became the owner thereof. The question of any gift etc. under the circumstances did not arise. It could not be successfully argued by the counsel for the plaintiffrespondents that by setting up that tenure the defendants were setting up a new case for the first time in this appeal. In the written statement itself, this document was referred to and the claim was based thereon. It is only the reading of the said document which provides that the land was given to Pat Ram by Jaswant Singh on `Adhlapi" tenure. Once it is so held then there was no cause of action for the plaintiffs to file the present suit against Pat Ram who became its owner in the life time of Jaswant Singh who died in the year 1965. Having become the owner of the land, he validly exchanged the same on 2.4.1965 with Pirthi Singh and Surjit Singh.

No argument was raised on behalf of the plaintiff respondents in the appeal filed by them with respect to the land sold by Prem Singh to the defendants.

As a result of the above discussion, Regular Second Appeal No. 1069 of 1978 filed by Raj Singh and another plaintiff, fails and is hereby dismissed whereas the Regular Second Appeal No. 771 of 1978 filed by Pat Ram and others is allowed. The judgment and decree of the lower appellate Court are set aside and that of the trial Court dismissing the plaintiff''s suit is restored, with no order as to costs.