Punjab-Haryana High Court
Hakam Singh And Ors vs Beela Singh on 25 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:060251
RSA No.2191 of 1990 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2191 of 1990 (O&M)
Reserved on: 09.04.2024
Date of Order:25.04.2024
Hakam Singh and others
.Appellants
Versus
Beela Singh (since deceased) through LRs
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Kanwaljeet Singh Brar, Advocate and
Mr. J.S.Brar, Advocate
for the appellants.
Dr. Anmol Rattan Sidhu, Sr. Advocate, with
Mr. Gursher Singh Dhillon, Advocate
for the respondent.
ANIL KSHETARPAL, J
1. This is the defendants' regular second appeal against the
judgment and decree passed by the First Appellate Court which in turn has
reversed the judgment and decree passed by the trial court resulting in
decreeing the plaintiff's suit for the grant of decree of declaration that he has
become owner by way of adverse possession of land measuirng 237 kanals
and 15 marlas and the defendants are not entitled to get possession of the
property pursuant to instrument of partition.
2. In order to comprehend the issues involved in the present case,
the relevant facts, in brief, are required to be noticed.
3. Smt. Sham Kaur was owner of 1/3rd share in the joint land
measuring 715 kanals and 12 marlas. She sold her share in favour of Sh.
Karam Singh vide registered sale deed dated 13.05.1959. Sh. Karam Singh
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filed an application on 01.08.1960, before the revenue Court for partition of
the joint land. The same was contested by the plaintiff on the ground that
Smt. Sham Kaur was not a co-sharer and she had no right to execute the sale
deed. He also stated that he had been in possession of the entire land for the
past 50 years adversely to everyone. In fact, there had been a family
partition in which the entire land, including the land in dispute had fallen to
his share. In the beginning, the Assistant Collector Ist Grade dismissed the
application for partition vide his order dated 10.11.1961 on the ground that
the question of title has been raised which could be settled only in a civil
suit. However, in appeal, the order was reversed. Eventually, the revenue
court ordered partition of the land on 31.07.1973 which was executable with
effect from the Kharif crop of the year 1974. During the pendency of the
aforesaid partition proceedings, Sh. Karam Singh, the purchaser, was
murdered on 25.09.1969, by the plaintiff's son, who was convicted and
sentenced to life imprisonment. On 01.05.1974, the appellants, who are
successor-in-interest of Sh. Karam Singh filed an application seeking
delivery of possession in execution of the order of partition. Warrants of
possession dated 07.05.1974 were issued, however, defendants were not
available in the village to take delivery of possession because of murder of
Sh. Karam Singh. As many as three attempts were made. Ultimately, the
Assistant Collector Ist Grade consigned the file to the records in default. In
the year 1984, the defendants filed the second application for delivery of
possession which was rejected by the revenue officer on 19.02.1985. In
between, the plaintiff filed suit on 25.07.1984, which was withdrawn on
06.08.1985 , in view of dismissal of the second execution petition. The
defendants then filed the third application for delivery of possession. The
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Assistant Collector sought permission to review the previous order which
was granted by the Collector. The revision petition filed by the plaintiff was
dismissed by the Commissioner on 03.01.1989, which was again upheld by
the Financial Commissioner vide order dated 02.06.1989. In between, the
plaintiff (respondent herein ) filed the civil suit on 13.01.1987. In
substance, the plaintiff has prayed for the several reliefs:-
(i) That declaration to the effect that he had become
owner of the land in dispute by adverse possession and
any title vesting in the defendants stood extinguished by
lapse of time and they were not entitled to obtain
possession from revenue authorities in execution of order
of partition dated 31.7.1973.
(ii) That order dated 23.12.1986 of Collector, Bathinda,
allowing the Assistant Collector First Grade to review
the order dated 19.2.1985 was illegal and in-effective,
and
(iii) for permanent injunction restraining the defendants
from getting possession of the disputed land by virtue of
Sanad Taksim and the order of the Assistant Collector,
The plaintiff pleaded that the defendant's first application
having been finally disposed of on 9-7-1975, no further
application was competent after the lapse of period of
three years under section 122 Land Revenue Act. Thus,
any order of review was illegal, secondly, the procedure
followed by the Assistant Collector First Grade,
Talwandi Sabo and the Collector, Bathinda, was illegal
since the review was permissible only within a period of
90 days. Thirdly, there was no valid ground for the
review of the order dated 19-2-1985. The plea of adverse
possession was also pressed into service. It was pleaded
that the plaintiff was in exclusive, continuous possession
of the entire land for the past more than 50 years. Karam
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Singh, father of the defendants, never came into
possession of any part of the land and after his death
also, the defendants never came into possession, His
possession on the remaining land was adverse, open,
hostile, notorious, uninterrupted and to the knowledge of
all including Karem Singh and thereafter the defendants
for a period of more than 12 years. He never paid any
share of the produce, Chakota etc, to them even after the
passing of the partition order dated 31.7.1973, he had
been in continuous possession adversely, openly, in a
hostile manner, to the knowledge of the defendants till the
date of filing of the suit. On account of adverse
possession, any right or title vesting in the defendants
was rendered extinguished. The plaintiff had sown the
wheat and sarson crops.
4. The defendants (appellants) contested the suit claiming that the
possession of the plaintiff was noway adverse and the litigation was pending
throughout.
5. The trial court dismissed the suit which as already noticed, has
been reversed by the First Appellate Court.
6. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book along
with the requisitioned record. The written note of submissions has also been
filed by the learned counsel representing the parties. The appellants' written
note read as under:-
"That vide order dated 3.4.2024 subsequent
purchasers are substituted in place of original
appellants/defendants Hakam Singh and others and
hence notes containing the gist of their arguments as to
the issues which require adjudication from the Hon'ble
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Court are as under:-
(i). Karam Singh (father of defendants Hakam Singh
and others) purchased 1/3rd share of Sham Kaur original
co-sharer out of 715 Kanal12 Marla and on 1.8.1960 he
moved application for partition of land for separating his
share. In reply to this application plaintiff Beehla Singh
claimed his possession over the land firstly under oral
family partition and not adverse, hostile under the colour
of title to the knowledge of Karam Singh co-sharer for
continuous period of 12 years. He only in the alternative
averred that in case his possession under family partition
was not accepted, then it be treated as hostile.
(ii). Plea of getting the disputed land in family partition
and in the alternative on the basis of adverse possession
are mutually inconsistent and the latter does not begin to
operate until the former is renounced. It is not pleaded or
proved when plea of family partition was renounced and
of adverse possession was claimed by Beehla Singh. It is
inherent in the plea of adverse possession that defendants
are the owners.
(iii). Plaintiff has not pleaded ouster in the plaint.
Whereas he was in possession as a co sharer, he cannot
simply claim adverse possession without pleading and
proving ouster. It is a case of Co-owners and no element
of either adversity or hostility between them is pleaded
and proved as per law. Animus possidendi is not
demonstrated. It was not shown to be existing at the
commencement of the possession. In dispute of such
nature where both parties are related to each other,
possession of one is regarded to be possession of other
unless acts show otherwise. Possession of property by a
co-sharer is deemed to be possession on behalf of other
co- sharers unless there is a clear ouster by denying title
of the other co- sharers. Possession of plaintiff not
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started with a wrongful dispossession of true owners and
in this case it is not exclusive, hostile and continued over
the statutory period.
(iv). No specific mention of factum of mortgage by
plaintiff was made in the plaint so aspect of mortgage of
more than share cannot be invoked to claim ouster in the
absence of this plea.
(v). No specific acts and circumstances constituting
adverse possession are pleaded and proved. Even no
date, month or year as to when adverse possession of
plaintiff started against defendants Hakam Singh and
others is averred in plaint. Plaintiff failed to plead and
prove that his possession is open, undisturbed and
continuous to the knowledge of defendants. Plaintiff did
not plead and establish when he came into possession.
(vi). Mere possession, howsoever long it may be, does
not necessarily mean that it is adverse to true owner. In
para no.7 of replication plaintiff averred that after
partition, his possession became adverse and forcible
and not that of co-sharer.
vii). In revenue record possession of Beehla Singh is
recorded only as co-sharer and not adverse against
defendants, EX. P-1 Khasra Girdawari Harri 1975 to
Sauni 1979, Ex.P-2 Khasra Girdawari Harri 1980 to
Sauni 1984, Ex. P-3 Khasra Girdawari Harri 1985 to
Sauni 1989, Ex. P- 18 Jamabandi for the year 1969-70,
Ex. P-19 Jamabandi for the year 1974- 75, Ex. P-13
Jamabandi for the year 1979-80, Ex. P-20 Jamabandi for
the year 1984-85 depict possession of Beehla Singh on
major portion of suit land as co-owner and on the other
possession of his mortgagees.
(viii) In instrument of partition Ex.P-11 (which was
never challenged by the plaintiff before revenue
authority) it was specified Harri 74 as the date from
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which the partition is to take effect. Therefore till that
date plaintiff could not claim himself to be in adverse
possession.
(ix). Under section 122 of the Punjab Land Revenue Act
defendants could at any time within 3 years from the date
when partition was to take effect were to apply for taking
possession of the land before the revenue officer. Those 3
years were to expire in June 1977 when Harri crop was
to be harvested. From that date till filing of the present
suit possession of plaintiff over the suit land did not ripen
into full ownership as suit was bought by him on
13.1.1987 before expiry of 12 years. Defendants i.e.
owners have not abandoned the property to the plaintiff.
(x). Appellants admittedly were moving applications to
take possession since 1.5.1974 and on their applications
warrant of possession was issued thrice firstly 7.5.1974
Ex, P-9 secondly for 22.9.1974 Ex.P-26 and thirdly for
1.7.1975 Ex. P-10 but it remained unexecuted due to
murder of their father at the hands of son of plaintiff. (xi).
Adverse possession cannot be perfected into a title
howsoever long it may be, when proceedings for
restoration of possession by a true owners i.e. defendants
were pending for all the 12 years or major part thereof.
Adverse possession ripens into title only if said
possession is hostile, uninterrupted and without any
protest by true owners. Due to murder of Karam Singh
father of original appellants by the son of Plaintiff who is
the Nambardar of the village, Plaintiff tried to hold on to
his unauthorized possession during this period and such
possession if over a period of 12 years cannot confer any
title whatsoever. (xii). Plea of adverse possession was
already rejected in partition proceedings and instrument
of partition was ordered to be prepared by the revenue
officer. (xiii). Jurisdiction of civil court to challenge the
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orders passed by the revenue authorities is barred as per
Section 158 of the Punjab Land Revenue Act. (xiv). On
5.5.1989 revenue authorities delivered Possession to
appellants. Hence Ld. Trial Court was justified in not
declaring plaintiff as owner by virtue of adverse
possession."
7. The defendant's written notes read as under:-
Question of ownership by adverse possession of the
Respondent/ Plaintiff has been rightly decided by the Ld.
First Appellate Court as the Respondent/Plaintiff was in
continuous, uninterrupted, Hostile and known adverse
possession of the land in dispute since about 50 years
prior to the filing of the suit, the Respondent/Plaintiff
never paid any rent to anyone, moreover there was
complete ouster of the Appellants as the
Respondent/Plaintiff was mortgaging and selling parts of
the land and enjoying the income whereas the Appellants
were completely ousted and were admittedly not in
possession. And in his reply before the AC Grade-I in
partition proceedings in 1960 the Respondent/Plaintiff
claimed to be owner in possession of the land in dispute
therefore showing the knowledge of the Appellants about
the adverse possession of the Respondent/Plaintiff from
1960.
2. Once the order of Partition was passed the Joint
status of the Parties came to an end and the possession of
the Respondent/Plaintiff over the portion of the Appellant
would be seen as adverse in nature, therefore as the
order of partition was passed on 31.07.1973 the period of
12 years, even if counted from that date, elapsed before
the filing of the suit in1987 therefore the adverse
possession of the Respondent/plaintiff had ripened into
ownership at the time of filing of the suit as even during
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this period the possession of the Respondent/plaintiff was
uninterrupted and continuous which is also evident from
the fact that the Appellants were trying to get possession
by filing multiple applications before AC Grade-l but
were unsuccessful, meaning thereby the
Respondent/plaintiff was in uninterrupted and continuous
adverse possession as has been rightly observed by the
Ld. First Appellate Court (finding at internal page 13,
Para 11 AC Judgement)
3. The order dated 23.12.1996 of Collector, Bathinda
allowing the AC Grade- 1 to review the order dated
19.02.1985 is illegal as the Appellants first application
stood finally disposed on 09.07.1975 and thereafter any
further application cannot be entertained as it would fall
outside the period of 3 years as prescribed under Section
122 of the Land Revenue Act, the Appellants tried to
illegally extend the limitation by portraying subsequent
application as being a continuation of the previous
proceedings which has not been accepted by the Ld. First
Appellate Court (finding at internal page 19, Para 19 AC
Judgement)
4. Order dated 19.02.1985 passed by AC Grade-l
rejecting the subsequent application for possession of the
Appellants was valid and on sound reasoning of delay,
there was no ground for AC Grade-l to seek review of
this Order on the ground that the proceedings could not
be completed initially as the Appellants were not
available in the village in 1974/75 due to murder of their
father in 1969, this ground cannot be used to exercise
jurisdiction of review under Section15 Land Revenue Act.
(finding at internal page 22, Para 20 of AC Judgement).
5. Finding of the Ld. Trial Court that Possession was
delivered to the Appellants on 05.05.1989 is completely
erroneous and unsustainable and has been rightly
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rejected by Ld. First Appellate Court as firstly even if it is
presumed that possession was delivered it would be
during the Pendency of the Suit and the same would have
no legal effect, secondly as rightly observed by the Ld.
First Appellate Court possession was never actually
delivered to the Appellants and the same was only a
paper transaction as the major chunk of the land in
dispute was mortgaged to several mortgagees, they were
neither party to the Partition proceedings and nor were
they present at the time of delivering possession therefore
the order of partition could not effect their rights and it is
highly improbable that physical possession of the entire
land was handed over to the appellants and despite being
allegedly informed not a single mortgagee came present.
Further allegedly even the Respondent/plaintiff allegedly
did not come present. Moreover various depositions
including DW-1 Bant Singh, DW-4 Gurdev Singh show
that out of the entire village the only two persons present
were collaterals of Appellant Hakam Sing and sarpanch
Gurjit Singh who was allegedly present did not append
his signatures on the report and while appearing as PW-
6 he states that he was never present. Further there are
various evidences to show major lapses which prove that
no possession was delivered to the Appellants in 1989
and the same was a paper transaction. (finding at
internal page 25, Para 22 of AC Judgement)
Issues to be decided by this Hon'ble Court
1. Whether the finding of the Ld. First Appellate Court
regarding continuous, uninterrupted and hostile, adverse
possession of the Respondent/plaintiff over the land in
dispute is correct and did the Respondent/plaintiff
become owner in possession of the land in dispute
through adverse possession?
2. Whether after the Partition order was passed, the
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Respondent/Plaintiff and Appellants would continue to be
co-sharers and whether after passing of the Partition
order in 1973, the Respondent/Plaintiff was in continuous
and uninterrupted adverse possession of the portion of
the Appellant before filing of the suit in 1987?
3. Whether the order dated 23.12.1996 of Collector,
Bathinda allowing the AC Grade- I to review the order
dated 19.02.1985 is illegal and the subsequent
application for possession of the Appellants in 1984 was
barred by limitation as prescribed under Section 122 of
the Land Revenue Act.
4. Whether review of order dated 19.02.1985 could be
sought while exercising jurisdiction of review under
Section 15 Land Revenue Act only on that the
proceedings could not be completed initially as the
Appellants were not available in the village in 1974/75
due to murder of their father?
5. Whether possession was actually delivered to the
Appellants on 05.05.1989 or the finding of the Ld. First
Appellate Court is correct that it was merely a paper
transaction?"
8. At this stage, it would be appropriate to examine the correctness
of first appellate court's reasons while accepting the appeal.
9. The first reason is that Sh. Beehla Singh was in continuous
possession of the land. It is well settled that mere long possession does not
necessarily lead to conclusion that the possession is adverse unless animus
possidendi is proved on the date when they entered into possession. It is
evident that Smt. Shyam Kaur and Sh. Beehla Singh are related through their
extended family. While filing the reply to the partition application, Sh.
Beehla Singh claimed that he is in possession on account of family
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settlement. Thus, his possession was permissive. In any case, his
possession was as a co-sharer. By legal fiction, every co-sharer is assumed
to be in possession of every part of the land.
10. The second reason that Sh. Beehla Singh had mortgaged major
part of the land resulted it ouster of Smt. Sham Kaur and thereafter, Sh.
Karam Singh is also wrong because mortgaging a major part of the suit land
was by a co-sharer. Additionally, Sh. Beehla Singh was a co-owner of the
property. Hence, it would not amount of ouster.
11. Reason no.3 recorded by the First Appellate Court to the effect
that after 31.07.1973, when partition was ordered, the period of 12 years has
elapsed and therefore, Sh. Beehla Singh's possession has ripened into title.
The calculation of period of 12 years is factually incorrect particularly in
view of the fact that the defendants have been making efforts to get the
possession of the land by filing three successive applications, the first filed
on 01.05.1974, the second filed in the year 1985 and the third one filed in
the year 1985. Those applications remained pending before the authorities
upto 02.06.1989 i.e. much after the filing of the present suit. Hence, the
First Appellate Court has erred in calculating the period of 12 years from
31.07.1973, particularly when efforts were being made by the defendants to
take possession through court of law.
12. The fourth reason of the First Appellate Court to the effect that
the possession was never interrupted also lacks substance because
possession was interrupted when efforts were made to take possession of
the property by instituting partition proceedings in the year 1971.
Thereafter, repeatedly, by filing successive applications to take over the
possession, ultimately the possession was delivered in the year 1989.
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Hence, the First Appellate Court has erred.
13. The finding recorded by the First Appellate Court that Sh.
Beehla Singh's adverse possession can be assumed from 01.11.1960 on the
day he filed the reply the partition petition is also incorrect because the
severance of status between the parties as co-sharer would come into effect
only with effect from crop 'Kharif 1974'. In May, 1974, the first application
for delivery of possession was filed. Hence, Sh. Beehla Singh's possession
cannot be adverse from 01.11.1960. Furthermore, the First Appellate Court
has also erred in observing that there is a period of three years for delivery of
possession from the revenue authorities and thereafter the defendants are
required to file a suit within a period of next nine years as three years period
has already elapsed. The First Appellate Court has overlooked that
proceedings for delivery of possession remained pending continuously from
01.05.1974. There was some gap of nearly 8/9 years between filing of the
first application and the second application. However, that would not
mature into ownership by way of adverse possession. There was no
occasion for the First Appellate Court to calculate the period of 9 years
while including the period when proceedings for delivery of possession was
pending continuous for a period of 15 years.
14. The First Appellate Court has also erred in observing that
subsequent review by the Assistant Collector was beyond the period of 90
days. The First Appellate Court has observed that the review could be made
within a period of 3 years from the date of partition order. It may be noted
here that the second application filed by the defendants for delivery of
possession was rejected by the revenue officer on 19.02.1985, however,
subsequently suo moto the permission to review the order was sought from
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the Collector which was allowed in the year 1986. Moreover in this case the
suo moto review was sought. Hence, there was no error in reviewing the
previous order. The validity of the review was upheld by the Collector in
appeal and Commissioner in the revision petition and Financial
Commissioner in the second revision petition. Hence, there is no occasion to
hold that the subsequent review was illegal.
15. The First Appellate Court has also erred in observing that
proceedings for delivery of possession during the pendency of the suit in the
year 1989 was a paper transaction. Rapat Roznamcha evidencing delivery
of possession by the revenue court officials prove that the possession was
delivered. Even if the land was in possession of a large number of
mortgagees, still symbolic possession could be delivered to the defendants,
who had become entitled to the property pursuant to the date of partition.
The First Appellate Court has also erred in observing that the defendants
were not residing in the village, therefore, delivery of actual physical
possession was not possible. It may be noted here that defendants have been
continuously making efforts to take over possession in accordance with law.
Ultimately, the possession was delivered to the defendants on 05.05.1989.
Hence, the First Appellate Court has erred in declaring that the proceedings
for delivery of possession was a mere paper transaction. Reliance placed by
the First Appellate Court on oral evidence in preference to documentary
evidence including daily diary report was not appropriate. The possession of
the mortgagees will be on behalf of the defendants after the delivery of
possession.
16. While analyzing the submissions of the learned counsel
representing the respondents, it may be noted that mere possession of 50
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years during the pendency of the partition proceedings and thereafter in this
suit would not result in uninterrupted possession which is the requirement of
claiming title by way of adverse possession. Similarly, there is no substance
in the second argument because even after there was severance of joint
status between the parties from 'Kharif' crop of the year 1974, still the
proceedings for delivery of possession remained pending during all this
period except break of 8/9 years before the revenue authorities. These
proceedings continued after the present suit was instituted. Hence,
severance of status as co-owners between the parties would not permit the
plaintiff to claim adverse possession from 31.07.1973.
17. The next contention of the learned counsel representing the
respondents is also factually incorrect because the Collector's order
permitting the Assistant Collector Ist Grade to review was passed in the year
1986 and not on 23.12.1996. A perusal of the record proves that the
Collector granted permission to the Assistant Collector to review its
previous order vide order passed on 23.12.1996 (Ex.P16).
18. The next contention of the learned counsel of the appellant is
also without substance because the defendants were only required to file an
application within a period of 3 years. The time taken during the pendency
of the petition would not make the proceedings illegal. Still further, the
second application filed for review can be treated as an application for
restoration of the first application for first execution petition. Moreover, the
proceedings under the 1967 Act are not strictly governed by the Code of
Civil Procedure, 1908. After the partition order was passed, it was the
responsibility of the revenue officer to put the respective parties in
possession of the land which fell to their respective share after partition.
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19. With regard to the 5th submission, the matter has already been
examined in detail and needs to further elaboration. The issues as proposed
by the learned counsel representing the respondents have already been
answered and need no repetition. All the five issues pointed out by the
learned counsel representing the respondent (plaintiff) have elaborately been
examined and answered.
20. Keeping in view the aforesaid facts and discussion, the result is
inevitable. The appeal filed by the defendants is allowed while setting aside
the judgment of the First Appellate Court while restoring the judgment of
the trial court.
21. All the pending miscellaneous applications, if any, are also
disposed of.
25th April, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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