Sadhu and ors. vs State of Haryana and ors.

G.C. Garg, J.—Sadhu, Parsa and Atma Ram sons of Rulia, appellants filed a suit for declaration and permanent injunction by way of consequential relief claiming that they were the absolute owners of the land in dispute which came to be allotted to them in lieu of the property one held by Mst. Satri and escheated to the State Government. It is not necessary to notice the facts in details or reproduced the issues framed in the suit. The plaintiffs got possession of the property as mortgagees having purchased the mortgagee rights and the property having not been redeemed for a period of over 30 years, they became the owners thereof by prescription and lapse of time. They also claimed that they have become owners by adverse possession. The mutation sanctioned in favour of the State Government in respect of this property on the death of Satri the original mortgagor on account of escheat was challenged being illegal and ineffective qua their rights. In the alternative it was plead that they were entitled to hold possession of the land until it was lawfully redeemed. The State Government contested the claim of the plaintiffs by pleading that the land had been escheated to the Government because Mst. Satri did not leave behind any heir to succeed to her estate. The other pleas taken by the plaintiffs including the plea of adverse possession or their having become owners by prescription were also denied.

The trial Court by judgment and decree dated September 30, 1976 dismissed the suit, primarily, by holding that the plaintiffs had failed to prove adverse possession or that they had become owners of the property by prescription. They were, however, held to be in occupation of the suit land as mortgagees under the owner. On appeal, learned Additional District Judge affirmed the findings as recorded by the trial Court, by judgment and decree dated August 27, 1979 only two pleas were raised before the learned Additional District Judge, namely, that the plaintiffs having purchased the mortgagee rights from Bhikhan and having stepped into the shoes of the mortgagee, they have come in possession of the land in question for the last more than 60 years and no suit for redemption having been filed by the mortgagor, they have become owners thereof and, secondly, it was pleaded that the plaintiffs being in possession of the property have perfected their title by way of adverse possession, being in possession of the suit property for a period of over 12 years. Both these pleas were rejected by the learned Additional District Judge by holding that the evidence on record did not establish that the plaintiffs had become owners by adverse possession and that they had failed to show the date on which they became the mortgagees and the terms thereof from which it could be ascertained as to when the period to redeem the property started and, therefore, they could not be said to have become owners by prescription.

The finding, as recorded by the trial Court hold the plaintiffs to be in possession, was not assailed.

Learned counsel for the appellants sought to argue that they are the heirs of Satri being collaterals and that they have become owners by adverse possession. I have considered the contention of the learned counsel and have gone through the record. The learned counsel could not bring any fact on or to my notice in support of is contention that the plaintiffs are the heirs of Satri. As regards adverse possession, suffice it to say that the plaintiffs admittedly got into possession of the property as mortgagees and they have nowhere shown on record as to how and when their adverse possession started. They continued to be recorded in the revenue record as mortgagees and once that is so, it could not be successfully argued that they became the owners of the suit land by way of adverse possession. Mere possesion howsoever long may be would not lead to the conclusion that the possessor thereof has become owner thereof by adverse possession. To prove adverse possession, the person claiming ownership on that ground has to plead and prove by positive evidence that he was in possession of the property in his own right and his possession was open and hostile to the true owner and was for a period of over 12 years and also that the true owner had notice thereof. In this case, as already noticed, it has not been shown as to on which date the adverse possession started and period of 12 years has elapsed since then.

Learned counsel for the appellants further argued that the appellants had become the owners of the suit property by the time they filed the suit on the ground that mortgage had not been redeemed within the period allowed by law. It was argued that the revenue record produced on record goes to show that the plaintiffs were in possession of the property as mortgagee at least from the year 194445. The present suit was filed in the year 1972. The Courts below were right in observing that the terms of mortgage had not been brought on record and thus, it was difficult to conclude that the period prescribed for redemption of mortgage had expired. The learned counsel could not point out as to how the findings arrived at by the Courts below in that behalf were wrong. The findings thus, recorded by the Courts below, are affirmed.

Learned counsel for the appellants as a matter of last resort argued that the trial Court found that the appellants were in possession of the property as mortgagees and this finding had not been reversed by the appellate Court, therefore, the suit filed by the appellants at least qua the relief of injunction ought to have been decreed and could not have been dismissed. Learned Counsel appearing for the State of Haryana could not point out that the finding of possession, as recorded by the trial Court, was wrong or had been set aside by the appellate Court. Having considered the matter, I am of the view that once the appellants were found to be in possession of the property either as mortgagees or even otherwise, they were entitled to a decree at least to the extent that they would not be dispossessed from the property except in due course of law.

In view of the foregoing observations, I hold that the appellants have failed to prove that they are the collaterals of Satri and that they had become owners of the property by adverse possession or by prescription on June 3, 1972, the date of the suit, but they are entitled to a decree for injunction in view of the fact that they have been found to be in possession of the property. Therefore, this appeal is partly allowed and the suit of the plaintiffs qua all reliefs except the relief of injunction is dismissed. The suit qua the relief of injunction is decreed by holding that the appellantplaintiffs shall not be dispossessed except in due course of law if not already dispossessed. There shall, however, be no order as to costs.

Appeal partly accepted.