Surat Ram and Others vs Nand Lal and Others

M. Srinivasan, C.J.—The second appeal is filed by a son of Lalla, the 1975 Defendant and Defendants No. 9 to 11 and 13 in Case No. 104/1 of 1975 on the file Sub-Judge If, Shimla. The suit was filed by the first Respondent in the appeal, who is now dead during the pendency of the appeal His legal representatives have come on record in this appeal. The parties will be referred to as Plaintiff on the one hand and the Defendants on the other for the sake of convenience, The Plaintiff is a purchaser from one Balak Ram, who was a son of Kesru. Kesru had three brOrs. by name Akloo, Motia and Devnu Akloo bad a son Mast Ram while Devnu had three sons, namely, Thonku, Daultia and Udhia The Appellants are claiming to be the descendents of Daultia. The case of the Plaintiff is that he purchased the suit property from Balak Ram, who was entitled to (sic) In the Properties which belonged to the family of his father and brOrs. and that on such purchase he has become a co-sharer along with the Defendants Hence, the Plaintiff has prayed in the suit for a decree for joint possession of the lands, set out in the plaint.

The suit was contested by the Defendants and mainly by the Appellants herein on three grounds. (1) Balak Ram had as early as in 1923 relinquished all his rights in the family properties in a family settlement in leu or which he was given a land in Anr. village; (2) the Defendants have prescribed title by adverse possession amounting to ouster as against Balak Ram and that Balak Ram was never in possession, and (3) the sale in favour of the Plaintiff is not a valid one as it was oral.

The trial Court upheld the defences raised by the Defendants and dismissed the suit. On appeal, the Additional District Judge, Shimla, reversed the judgment of the trial Court and granted a decree as prayed for by the Plaintiff for joint possession. Aggrieved by the said judgment and decree of the Additional District Judge, the Appellants have preferred this second appeal.

The first contention urged by learned Counsel for the Appellants is that there was a family settlement in 1923 which has been proved beyond doubt by authenticated documents, marked as Exts. DZ, DZ-1 and DZ-2 and the Appellant Judge has completely ignored the probative value of those documents According to learned Counsel for the Appellants, the appellate Judge has also committed a serious error in thinking that at the time when the documents were brought into existence, Balak Ram was apt present . It is the contention of learned Counsel that the documents themselves discloss the presence of Balak Ram at the relevant time and his malting statements to the effect that he was relinquishing his interest in the family properties. It is argued that though Balak Ram was minor at that time aged about six years the fact that he made a statement before the authorities concerned at that time would show that he had sufficient knowledge of the family settlement and he is not having challenged the same after attaining majority was not entitled to claim any right in the properties. It is also argued that the family settlement is proved by the oral evidence of DW 4 and the appellate Judge ought to have accepted the evidence of DW 4.

I am unable to accept any of these contentions of learned Counsel for the Appellants. At the out set, it can be pointed out that the evidence of DW 4 is absolutely worthless inasmuch as he was only aged about 42 on the dale when he gave the evidence, namely, 25-5-1979. He was born only in 1937 Hence he could not have had any personal knowledge whatever of the alleged family settlement, which took place according to the Appellants in 1923.

Apart from the documents Exts. DZ, DZ-1 and DZ-2 there is nothing on record either by way of oral evidence or documentary evidence to prove the family settlement alleged to have taken place in 1923, Even assuming that the three documents Exts. DZ, DZ 1 and DZ-2 arc public documents admissible in evidence on the basis of the certificates contained therein, the contents do not prove that there was any valid family settlement, as alleged by the Appellants When admittedly Balak Ram was only about six years at that time, he could not have been a party to any family settlement as such Even assuming that he did make a statement in 1923 relinquishing his interest in the family properties that would not deprive him of his interest in the properties as he was only aged about six years. It is too well known that at the age of six years, no person could be said to have comprehended the meaning or scope of any statement which he makes. The fact that he did not challenge the validity of so called family settlement after attaining majority will not deprive him of his interest in the property. Once, it is found that in its inception the transaction whatever it may be evidenced by Exts DZ, DZ-1 and DZ-2 was null and void in view of the fact that Balak Ram was a minor aged about six years at that time it cannot become valid later by the silence and inaction on the part of Balak Ram. There is no question of any ratification by Balak Ram after attaining majority of the said transaction. In fact, it is not the ease of any party that there was a positive ratification by Balak Ram of the said transaction.

Learned appellate Judge has also pointed out several circumstances in the case which go to show that there could not have been a family settlement, as alleged by the Appellants No doubt, the learned Judge has proceeded on the footing that Balak Ram was present at the time of alleged settlement but even assuming that Balak Ram was not present and that he had made a statement as contended by the Appellants, it will not affect the interest in the property The learned Additional District. Judge has also considered the position on the footing that Balnk Ram was a major at the time of alleged family settlement. Even on that footing the learned Additional District Judge has found that there is no evidence of the family settlement having taken place in 1923 A reference has been made by the learned Judge to the fact that Balak Ram had received compensation in a land acquisition proceeding as late as in 1963 with respect to a share in the land, which is alleged to have been reliquished by him in 1923. The learned Additional District Judge has also pointed out that throughout, the name of Balak Ram continued to be in the registers and at no time it was removed from the revenue records. The learned Judge has also referred to the mutation copies Exts. P 29. P.30, P-34 as well as Exts. P-18 P-28, P-31 to P-33 and P 35 to P-37 Thus the evidence on record is overwhelming against the claim put forward by the Appellants In such circumstances. I have no hesitation to affirm the finding of the learned Additional District Judge that there was no family settlement as alleged by the Appellants

The next question to be considered is whether the Appellants had perfected title by adverse possession amounting to ouster as against Balak Ram As regards the question of factual possession the learned Additional District Judge has himself pointed out that Balak Ram did not have actual possession as such Learned Counsel for the Appellants contends that a perusal of the Jamabandies starting from the year 1922 till date, will show that possession was always with the Appellants herein It is also submitted that the land revenue was never paid by Balak Ram as is spoken to by DW 3. It is further argued that PW 3 a petition writer has given evidence about the possession being exclusively with the Appellants. Reliance is also placed on Ex DA, which is a copy of the order passed in an appeal filed by the second Appellant before the Collector, Mahasu District as against the order of mutation. In that order dated 19-1-1971 the Collector has recorded that Balak Ram and the Plaintiff in the present suit made a representation before him that the possession of the Appellants had not been disturbed in consequence of the mutation as Balak Ram was not recorded in physical possession of the area in question and that the transfer was only in the ownership. Recording that statement the Collector dismissed the appeal holding that the Appellants before him had no case of any grievance.

I am unable to accept ''these contentions of learned Counsel for the Appellants As regards the Jamabandies from 1922, it is lightly pointed out by learned Counsel for the Plaintiff that in all those records the names of the Appellants were recorded as co-sharers being in possession. In no record they are mentioned as exclusive owners or in exclusive possession In column No, 4 of all those records the name of Balak Ram is mentioned as a co-sharer along with Ors. Thus, the Jamabandi records will not be sufficient to prove the ouster or adverse possession on the part of the Appellants As regards payment of land revenue DW 3 has spoken only to the effect that the Appellants were residing within bis Halqua and they were paying land revenue to his He has not said anything about the non-payment of land revenue by Balak Ram in any Halqua No doubt he has said that Balak Ram never paid land revenue to him. His evidence will not be sufficient to hold that the land revenue was being paid only by the Appellants and not by Balak Ram.

As regards the evidence of PW-3, there is some mistake It appears that in the certified copy given to learned Counsel for the Appellants in the Courts below a portion of PW 2''s evidence has been included as if it is the deposition of PW 3 A perusal of the original deposition shows that he has not spoken anything about the possession of the property with either of the parties. He has only spoken about the documents which are marked as Exts. P 2 and P 3, which were produced for the purpose of proving the fact that Balak Ram was minor in 1923 PW 2''s evidence is also not helpful to prove that the Appellants were in exclusive possession or adverse possession as against Balak Ram

It is also brought to my notice that DW 3 has identified Balak Ram at the time of mutation effected on 10 7-1970 and 10-7-1972 vide Exts. P-53 and P-37, by which the title of Balak Ram was passed on to the Plaintiff in the present case. If DW 3 ready was of the opinion that the Appellants were the exclusive owners and they were alone paying land revenue and Balak Ram had no interest in the land, he would not have simply identified Balak Ram at the time of mutation but pointed out that he had no interest in the land whatever.

But there is one clinching circumstance which will go against the case of the adverse possession or ouster pleaded by the Appellants I have already referred to the fact that the Additional District Judge has relied upon the payment of compensation to Balak Ram in the land acquisition proceedings. It is seen from Ex P-1 that the proceedings for land acquisition were initiated on 6-7-1961 and the decision was taken on 13-11-1963. The payment of compensation was only thereafter and it is not in dispute that the compensation was paid to Balak Ram in those proceedings as a co-sharer. The Appellants did not protest against such payment nor did they seek any reference before the Collector under Sections 30 or 31 of the Land Acquisition Act The payment was made in 1963 and the present suit was instituted on 26 6-1972. That was within 12 years from the date of such payment When it is seen that the title of Balak Ram was not disputed in 1963 by the Appellants when he was paid compensation in the land acquisition proceedings then whatever adverse possession which could have been said to have existed prior to that date came to an end and the so called adverse possession got interrupted in 1963 Thereafter, the period of 12 years was not completed and there is no question of Appellants'' prescribing title as against Balak Ram with regard to the suit properties.

Learned Counsel for the Appellants places reliance on a judgment of the Supreme Court in Shambhu Prasad Singh Vs. Mst. Phool Kumari and Others, This judgment is relied upon by learned Counsel for two purposes. One, it has been held in that case, a family arrangement has to be considered as a whole for ascertaining whether it was made to allay disputes existing or apprehended, in the interest of harmony in the family or the preservation of property and the Courts should honour such family arrangement. As it has been found on facts of this case that there was no family arrangement, the decision will not help the Appellant.

Secondly in that case the question of adverse possession among co-sharers has been considered. It has been held by the Supreme Court that where a house belonging to co-sharers was in possession of one of them and the Anr. one residing outside the town occasionally used to visit the town and at that time reside in the house not as a guest but by asserting his title, as he used to reside in the house though the relations between the co sharers were not on friendly terms, the fact that Anr. co-sharer used to pay the. municipal taxes and repair charges and that his name was entered in the municipal demand register would not constitute adverse possession in his favour. The Court also observed that the plea of adverse possession was taken in the written statement in the suit for the first time and that the former co-sharer got rectified the municipal records immediately after he got the information and without any objection for the latter negative the plea of adverse possession, in the present case there was no such entry in the revenue records to support the claim of the Appellants. The ruling of Supreme Court far from helping the Appellants is against the contentions put forward by the learned Counsel for the Appellants.

My attention is drawn to the judgment of a Division Bench of Madras High Court in Ibramsa Rowther and Others Vs. Sk. Meerasa Rowther and Others, The Division Bench after pointing out that there is a distinction between adverse possession as between strangers and ouster and exclusion of co-owners observed that in the case of adverse possession as against the strangers it is sufficient that adverse possession is overt and without any attempt at concealment and that it is not necessary that adverse possession should be brought home to the knowledge of the owner. But the Division Bench pointed out that in the case of ouster of a co-owner the position is different and to constitute ouster, law requires something more than mere exclusive possession and exclusive receipt of income and that there must also be a hostile and open denial and an open repudiation of that co-owner''s right to the latter''s knowledge. The tests prescribed by the Division in that case are not satisfied in the present case and the ruling of the Madras High Court will not help the Appellants in this case.

Reference is made to a judgment of the Supreme Court in Kale and Others Vs. Deputy Director of Consolidation and Others, That is a case, which dealt with family settlement and the Court observed that family arrangement may be even oral in which case no registration is necessary. Again, the Court reiterated the position that generally the family arrangements should be honoured by the Courts. On the facts of this case that judgment also does not help the Appellants.

Reliance is placed upon a judgment of a Division Bench of this Court in Smt. Samundra Devi Vs. Chand Singh and Others, A Division Bench of this Court held that as between co-sharers there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. It is also observed by the Division Bench that in order to prove ouster it is not an invariable requirement of law that actual knowledge of the ouster should be conveyed to the co-owner, who is ousted in my respectful opinion, the proposition is too widely stated and to some extent goes against the principles laid down by the Supreme Court in Shambhu Prasad Singh Vs. Mst. Phool Kumari and Others, but it is not necessary for me to consider the case in detail in view of the factual finding already arrived at.

Thus, I have no doubt in this case that the Appellants have not established the case of perfection of titled by adverse possession or ouster. It is needless to point out that in S.M. Karim Vs. Mst. Bibi Sakina, the Court held that long possession is necessarily adverse possession.

What remains to be considered is only the question of validity of the sale in favour of the Plaintiff. The appellate Judge has rightly pointed out that at the time when the sale was effected, the provisions of Transfer of Property Act were not applicable and there could be an oral sale. Pursuant to the said oral sale, there were mutations Exts. P-33 and P-37. In the circumstances, the view expressed by the appellate Judge that the sale in favour of the Plaintiff was valid, is correct.

In the result, the second appeal fails and it is dismissed. There will be no order as to costs.