Sewak Ram vs Chuhru (dead) through his LRs

Surinder Singh, J.—The plaintiff was unsuccessful in both the courts below to seek declaration to the effect that he has become owner by way of adverse possession qua the suit land. Hence the present Regular Second Appeal u/s 100 of the Code of Civil Procedure, which was admitted on the following substantial question of law:

(i) Whether the courts below ignored the important evidence, which if considered would have resulted in opposite finding?

Heard and gone through the record.

Admittedly, the parties to the suit are the co-sharers of the suit land. It is well settled that in order to establish adverse possession of one co-sharer as against another, it is not enough to show that one out of them is in sole possession and enjoyment of the profits, or the properties. Ouster of the non-possessing co-sharer by the co-sharer in possession who claims his possession to be adverse should be clearly made out. The possession of one co-sharer is considered, in law, as possession of all the co-sharer. When one co-sharer is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-sharer in possession cannot render his possession adverse to the other co-sharer''s title not in possession merely by secret hostile animus on his own part in derogation of other co-sharer''s title.

The ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

In the instant case, the plaintiff seeks adverse possession qua 12-7-3 bighas of land of which he is co-sharer with the defendants. He claims himself to be in possession of the suit land since July, 1970 and alleged interference by the defendants on 5.1.1995. The cause of action is alleged to have accrued to him on 5.1.1995 and right to sue on 21.1.1995 whereas the suit was filed in the month of March, 1999. Neither he pleaded as to when his possession qua the suit land became adverse to that of the other co-sharers nor did he even plead and prove the complete ouster of the respondents. Taking cue from the cross-examination of the defendant (DW1) Chuhru Ram, Shri M. S. Guleria, learned counsel for the plaintiff argued that DW1 aforesaid admitted that neither he took anything from the land nor the plaintiff gave anything to him. This was the only important evidence which is alleged to have been ignored by the courts below which if considered would have resulted in opposite findings. In my opinion, this argument has been raised only to be rejected. On over all examination of his statement, I find that he categorically denied the exclusive possession of the plaintiff and the alleged ouster. Whereas the plaintiff stated that the suit land was continuing in the name of Chuhru, Sidhu and Nanku. Sidhu had sold his share in his favour. Except the fact that he has been in possession of the suit land, he did not utter even a single word as to when his possession over the suit land became adverse to the defendants-co-sharers.

The concurrent findings of facts aforesaid arrived at by the learned trial Court are based upon the evidence on record and other view is not possible and this Court can also not substitute its own findings to suit the plaintiff merely on the ground that another view is possible. The substantial question of law is accordingly answered.

Thus the appeal sans merits and is accordingly dismissed.

Parties to bear their own costs.