Punjab-Haryana High Court
(O&M) Maktulo vs Ram Parkash on 12 November, 2025
Author: Pankaj Jain
Bench: Pankaj Jain
RSA-1279-1991 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 31st of October, 2025
Pronounced on 12th of November, 2025
Uploaded on 12th of November, 2025
RSA-1279-1991 (O&M)
Maktulo (Deceased) through LRs and others ....Appellants
Versus
Ram Parkash (deceased) through LRs and another ....Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Vijay K. Jindal, Sr. Advocate with
Mr. Abhishek Shukla, Advocate
for the appellants.
Mr. Ashish Aggarwal, Sr. Advocate with
Mr. Anmol Rattan Singh Dhillon, Advocate,
Mr. Vishal Pundir, Advocate
for respondent No.1.
Mr. Ashwani K. Chopra, Sr. Advocate with
Mr. Harminder Singh, Advocate and
Ms. Ridhima Khindria, Advocate
for respondent No.2.
PANKAJ JAIN, J.
Plaintiffs are in appeal. For convenience and to avoid
confusion, the parties hereinafter are referred to as by their original position
before the Court of the First Instance, i.e., the appellants as 'plaintiffs' and
the respondents as 'defendants'.
2. The plaintiffs filed suit seeking decree of declaration to the
effect that they are owners in possession of a land measuring 69 Kanals and
17 Marlas as detailed out in the headnote of the plaint and that order of
partition dated 24.05.1984 qua suit land is bad, illegal and does not affect
the rights of the plaintiffs.
3. Plaintiffs claim to be in cultivating possession of land
measuring 69 Kanals 17 Marlas prior to the year 1941-42 and claim that they
have become owners of the said land as their possession has always
remained open, adverse and hostile. The defendants went behind their back
without their knowledge and sought partition of the suit land. Assistant
Collector, 1st Grade, Pathankot vide order dated 24.05.1984 partitioned the
land without impleading plaintiffs as party. Plaintiffs still continue to be in
actual physical possession of the suit land. The order regarding delivery of
symbolic possession of the suit land to the defendants is illegal and not
binding upon the rights of the plaintiffs. Plaintiffs cannot be dispossessed
from the suit land under the garb of the partition.
4. Suit was contested by the defendants. Defendants denied that
the plaintiffs have become owners of the land in question by way of adverse
possession. Defendants claimed that the suit land was a joint-holding of the
defendants along with custodian. The defendants have 1/3rd share in the total
land. The same was so recognized by the statutory authorities vide order
dated 06.04.1953. Prior to order of partition, dated 24.05.1984, the
defendants were in possession as co-sharers and after partition they are in
possession of their share.
5. Defendants also preferred counter-claim claiming possession
from the plaintiffs. As per counter-claim, the defendants claimed that
plaintiffs trespassed over the suit land and the defendants being owners
thereof, are entitled to possession. The suit was decreed on 19.05.1986 by
Sub Judge, 1st Class, Pathankot. In the appeal preferred by the defendants,
the judgment and decree, dated 19.05.1986 passed by the Court of the First
Instance were set aside. The matter was remanded back vide order dated
20.05.1988 by the Appellate Court framing additional issues for re-trial.
6. The suit was again tried on following issues:
1. Whether the plaintiffs are the owners in possession of the
suit land being in adverse possession of the suit land for
more than 40 years? OPP
2. Whether the plaintiffs are entitled to declaration and
consequential relief of permanent injunction prayed for?
OPP
2a. Whether the suit is barred by time? OPD
2b. Whether the counter claim filed by the defendants is not
maintainable? OPP.
2c. Whether the defendants are entitled to possession of the
disputed land on the basis of the counter-claim? OPD.
3. Whether the plaint has been properly valued for the
purpose of Court fee and jurisdiction? OPP.
4. Whether the jurisdiction of this Court is barred u/S 158 of
the Punjab Land Revenue Act? OPD
5. Whether the suit is not maintainable? OPD
6. Whether the suit is bad for mis-joinder and non-joinder of
parties? OPD
and issues as follows framed by the Appellate Court:-
6a. Whether the land in suit formed part of Khewat No.266 of
jamabandi for the year 1977-78 measuring 1490 Kanals 4
Marlas entered as Shamlat Deh and the defendants and the
Custodian are the co-sharers in that. If so, to what effect?
OPD.
6b. Whether the order of partition dated 24.5.84 passed by
Assistant Collector Ist Grade, Pathankot is illegal, null and
void? OPP.
7. Relief.
7. While answering Issue No.1, the Trial Court found that as per
revenue record, it stands proved that the plaintiffs and their predecessors-in-
interest have continued to be in possession of the suit land. Their possession
had remained long and continuous without interruption. The Court found
that the defendants instituted suit for partition in the year 1963 after getting
their rights declared from Custodian (Judicial) in the year 1953. The
plaintiffs were arraigned as defendants in earlier suit. In the written
statement filed in the earlier suit filed on 03.02.1964 they asserted their title
as owners. Vide order dated 25.07.1964, Exhibit P-16, the suit was
withdrawn with liberty to file the fresh suit on the same cause of action after
impleading custodian as a necessary party. Thus, it stands proved on record
that the possession of the plaintiffs is adverse, hostile and continuous at least
from the date of filing of the written statement in the earlier suit i.e. from
February, 1964. Once, it stands proved that the plaintiffs are in possession
of the suit land for last more than 12 years and their possession is adverse,
hostile and continuous, they are entitled to decree of declaration to the effect
that they have become owners of the suit land by way of adverse possession.
Issue No.1 was decided in favour of plaintiffs by the Trial Court.
8. On Issue No.6-A, the Court of the First Instance found that after
the pleadings were amended, the plaintiffs relinquished their claim w.r.t. the
land allotted to the custodian in the partition proceedings and is now suing in
respect of land measuring 69 Kanals 17 Marlas allotted to the defendants.
Thus, the non-impleadment of the custodian being co-sharer in the joint
Khata shall have no effect on the present suit as the defendants are claiming
exclusive claim over the suit land after partition order. The Court of the
First Instance accordingly found that the Issue not being germane to the
adjudication, has no bearing on the final judgment. The Court accordingly
decreed the suit filed by the plaintiffs. The counter-claim preferred by the
defendants was dismissed.
9. Dissatisfied with the judgment and decree passed by the Court
of the First Instance, defendants preferred appeal.
10. The Lower Appellate Court held that the possession of the
plaintiffs remained undisturbed and continuous after the year 1941-1942.
However, mere continuous possession does not become adverse. By the dint
of Section 8 of the Administration of Evacuee Property Act, 1950
(hereinafter referred to as 'the 1950 Act'), custodian assumed co-ownership
in the joint land w.e.f. the year 1950. Even if the defendants never remained
in possession of the land in dispute, their joint owner i.e., custodian is
deemed to be in possession on behalf of all the co-owners. The
plaintiffs/respondents cannot claim their possession to be adverse without
impleading all the co-owners including custodian, as defendants. In view of
Section 8(4) of the 1950 Act, the plaintiffs cannot claim their possession
adverse against custodian. The Lower Appellate Court, accordingly,
reversed the findings on Issue No.1 holding that the plaintiffs are not entitled
to decree of declaration that they are owners in possession of the suit land
and dismissed the suit filed by the plaintiffs. Counter-claim preferred by the
defendants was also dismissed granting liberty to the defendants to file a
separate suit for possession of the suit land against plaintiffs/respondents.
11. Ld. Senior Counsel appearing for the appellants/plaintiffs has
assailed the findings recorded by the Lower Appellate Court. He submits
that the finding regarding plaintiffs being in possession of the suit land
continuously from the year 1941-1942 as Gair Dakhil Daran is concurrent.
Both the Courts below have held the plaintiffs to be in continuous
possession of the suit land. In the year 1963, the defendants preferred suit
for possession. Copy of the plaint, is Exhibit P-1. In the written statement
filed on 03.02.1964, Exhibit P-2, the plaintiffs, in the present suit,
specifically claimed that they were in adverse possession of the suit land for
more than 12 years and thus have become owners by way of prescription.
The present suit has been instituted by the plaintiffs in the year 1984. In the
last 20 years, no effort was made by defendants to disrupt the hostile and
continuous possession of plaintiffs. All the ingredients of adverse possession
having been satisfied and proven, the Trial Court rightly decreed the suit
filed by the plaintiffs which has been wrongly reversed by the Lower
Appellate Court.
12. He submits that the limitation even if taken to run from the date
of filing of the written statement i.e., 03.02.1964, the defendants have lost
their right to seek possession and thus the judgment & decree passed by the
Lower Appellate Court, need to be reversed and the judgment & decree
passed by the Trial Court need to be restored. Counsel relies upon ratio of
law laid down in Rameshwar Prasad vs. Municipal Corporation Sagar,
1992 MPLJ 764 and Smt. Hussain Begam and others vs. Rafique Khan
and others, Second Appeal No.97 of 2000 D/d 14.02.2018.
13. Per contra, Ld. Senior Counsels representing the respondents
have drawn attention of this Court to the order dated 06.04.1953, Exhibit
DW-1/A to submit that the defendants are not allottees of the evacuee
property. The land in question is a Shamlat Deh. The same vested in the
proprietors of the village. 2/3rd land vested in Muslim proprietors. 1/3rd of
Shamlat land vested in the defendants being proprietors. After Muslims
migrated on partition to newly carved out country of Pakistan, the land was
declared evacuee property. The defendants filed claim before the custodian.
The same was accepted vide order dated 06.04.1953. Right of the
defendants of being co-owners to the extent of 1/3 share was accepted.
14. In the year 1963, suit was filed by Ram Parkash for himself and
on behalf of defendant No.2, acting as his next friend. The same was
withdrawn with liberty to file fresh one with better particulars as custodian
was not impleaded as a party to the lis. It has been contended that by virtue
of Section 8(4) of 1950 Act, custodian became co-owner in possession of the
suit land and continued to be so up to the year 1984 when the order of
partition was passed. Till that date, custodian remained co-owner in
possession of the suit property. Trite it is that possession of a co-owner is
deemed to be possession of all the co-owners. The defendants remained in
possession of the part of the suit land.
15. In the present suit, the plaintiffs initially claimed adverse
possession over the entire land. However, later on relinquished their rights
against custodian by amending their pleadings on 24.08.1988. Thus, the
plaintiffs cannot claim ouster of the defendants prior to the date of order of
partition. The Lower Appellate Court thus has rightly reversed the findings
recorded by the Trial Court and dismissed the suit filed by the plaintiffs.
Reliance is being placed upon ratio of law laid down in the case of P.R.
Nayak vs. Bejen Dadiba Bharucha, 1951 AIR (Bombay) 406, Budhi
Singh vs. Sewa Singh, 1971 AIR (Himachal Pradesh) 29, Maqsood Alam
vs. Mossamat Bibi Husna and another, 1971 AIR (Patna) 31, Sayed
Salahuddin Ahmad vs. Janki Mahton and others, 1957 AIR (Patna) 549,
Ram Chander vs. Bhim Singh and others, 2008(3) R.C.R.(Civil) 685,
Mallikarjunaiah vs. Nanjaiah and others, 2019(3) R.C.R.(Civil)12,
Nagabhushanammal (D) by LRs. vs. C. Chandikeswaralingam, 2016(2)
R.C.R.(Civil) 469, Shri Uttam Chand (D) Through Lrs vs. Nathu Ram
(D) Through Lrs. & others, (2020) 11 SCC 263, Chettan Kaur and
others vs. Mohan Dass and others, 1966 PLJ 237, M. Radheshyamlal vs.
V. Sandhya and another, 2024(2) R.C.R.(Civil) 351, Bhartu vs. Ram
Sarup, 1981 P.L.J. 2004, Ram Chander vs. Bhim Singh and others,
2008(3) R.C.R.(Civil) 685, Banta Singh vs. Hakam Singh, 1994 P.L.J.
360, Gurdeep Singh vs. Rachhpal Singh, 1993 P.L.J. 98, Karcha Singh
alias Gurbaksh Singh vs. Dewan Singh, R.S.A No.1961 of 1985 D/d.
19.02.1985 and Custodian-General, Evacuee Property, and others vs.
Shanti Sarup, 1961 AIR Punjab and Haryana 497.
16. I have heard counsel for the parties and have carefully gone
through records of the case.
17. The issues that arise for consideration of this Court are:
(i) Whether the custodian being co-owner of the joint
land, has bearing on the final result of the present
lis?
(ii) Whether the defendants being co-owners with the
custodian, are deemed to be in possession of the
suit land in the light of Section 8(4) of the 1950
Act? and
(iii) Whether the plaintiffs/appellants can claim
ownership by way of adverse possession, claiming
that the plaintiffs declared their possession
to be adverse by filing written statement in
February, 1964 in the earlier suit?
18. During the course of arguments, this Court specifically asked
Mr. Jindal, Senior Advocate regarding any dispute w.r.t. the land being
evacuee property. He answered in negative and admitted that the suit land is
evacuee property. Land was joint till order of partition dated 24.05.1984.
The land in question is a shamlat land. The same vested in the proprietors of
the village. Some of the proprietors of the village were Muslims who
migrated on partition of the country in the year 1947. The land was declared
evacuee property. It has come on record that the defendants preferred Claim
No.429 before Assistant Custodian (Judicial), Gurdaspur on 05.07.1950 qua
1/3rd share in the land. The same was accepted vide order dated 06.04.1953
Exhibit DW1/A. In view of the acceptance of the claim of the defendants
qua 1/3rd share in the suit land, they became co-owners to the extent of 1/3
share in the joint land along with the custodian.
19. Sections 8 and 9 of the 1950 Act, read as under:
"8. Vesting of evacuee property in the Custodians.-
(1) Any property declared to be evacuee property
under section 7 shall be deemed to have vested in the
Custodian for the State.--
(a) in the case of the property of an evacuee as
defined in sub-clause (i) of clause (d) of
section 2, from the date on which he leaves
or left any place in a State for any place
outside the territories now forming part of
India ;
(b) in the case of the property of an evacuee as
defined in sub-clause (ii) of clause (d) of
section 2, from the 15th day of August, 1947;
and
(c) in the case of any other property, from the
date of the notice given under sub-section (1)
of section 7 in respect thereof.
(2) Where immediately before the commencement of this
Act, any property in a State had vested as evacuee property
in any person exercising that powers of Custodian under
any law repealed hereby, the property shall, on the
commencement of this Act, be deemed to be evacuee
property declared as such within the meaning of this Act
and shall be deemed to have vested in the Custodian
appointed or deemed to have been appointed for the State
under this Act, and shall continue to so vest :
Provided that where at the commencement of this
Act there is pending before the High Court the Custodian or
any other authority for or in any State any proceeding under
section 8 or section 30 of the Administration of Evacuee
Property Ordinance, 1949 (XII of 1949), or under any other
corresponding law repealed by the Administration of
Evacuee Property Ordinance, 1949, (XXVII of 1949), then
notwithstanding anything contained in this Act or in any
other law for the time being in force, such proceeding shall
be disposed of as if the definitions of 'evacuee property' and
'evacuee' contained in section 2 of this Act had become
applicable thereto.
(3) Where any property in a State belonging to a
joint stock company had vested in any person exercising the
powers of a Custodian under any law previously in force,
then nothing contained in clause (f) of section 2 shall affect
the operation of sub-section (2), but the State Government
may, by notification in the Official Gazette, direct that the
Custodian shall be divested of any such property in such
manner and after such period as may be specified in the
notification.
(4) Where after any evacuee property has vested
in the Custodian any person is in possession thereof, he
shall be deemed to be holding on behalf of the Custodian
and shall on demand surrender possession of it to the
Custodian or to any other person duly authorised by him in
this behalf.
9. Power of Custodian to take possession of evacuee
property vested in him.- If any person in possession of any
evacuee property refuses or fails on demand to surrender
possession thereof to the Custodian may use or cause to be
used such force as may be necessary for taking possession
of such property and may, for this purpose, after giving
reasonable warning and facility to any woman not
appearing in public to withdraw, remove or break open any
lock, bolt or any door or do any other act necessary for the
said purpose."
(emphasis supplied)
20. Accordingly, in terms of Section 8(4), since the property vested
in custodian, the plaintiffs who were in possession, were deemed to be
holding possession thereof on behalf of the custodian. They were liable to
surrender possession to the custodian on demand. The land remained joint.
Since the possession qua share of the land is deemed to be possession under
custodian, the other co-sharers including defendants are deemed to be in
possession thereof. Reference can be made to law laid down by Division
Bench of this Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram,
AIR 1961 Punjab 528 which stands approved by Full Bench in the case of
Bhartu vs. Ram Sarup, 1981 PLJ 204, observing as under:
"4. The inter se rights and liabilities of the co-sharers were
settled by a Division Bench of this Court in a very detailed
judgment in Sant Ram Nagina Ram v. Daya Ram Nagina Ram,
AIR 1961 Pb. 528, and the following propositions, inter alia, were
settled :-
(1) A co-owner has an interest in the whole property and
also in every parcel of it.
(2) Possession of joint property by one co-owner, is in the
eye of law, possession of all even if all but one are actually
out of possession.
(3) A mere occupation of a larger portion or even of an
entire joint property does not necessarily amount to ouster
as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is
ouster of a co-owner by another. But in order to negative
the presumption of joint possession on behalf of all, on the
ground of ouster, the possession of a co-owner must not
only be exclusive but also hostile to the knowledge of the
other as, when a co-owner openly asserts his own title and
denies that of the other.
(5) Passage of time does not extinguish the right of the co-
owner who has been out of possession of the joint property
except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a
husband like manner not inconsistent with similar rights of
other co-owners.
(7) Where a co-owner is in possession of separate parcels
under an arrangement consented by the other co-owners, it
is not open to any body to disturb the arrangement without
the consent of others except by filing a suit for partition."
(emphasis supplied)
21. The said relationship of co-ownership was snapped only in the
year 1984. Till the date of partition, the possession of custodian is deemed
to be possession on behalf of all the co-sharers. The plaintiff gave up his
claim against the custodian. In view thereof, this Court finds that the answer
to question No.1 as culled out in the afore-going para, is answered in
affirmative. Thus, the finding recorded by the Court of the First Instance on
Issue No.6-A, is unsustainable. It is held that the defendants along with
custodian are co-owners of the suit land and they continued to be so till the
date of order of partition. It cannot be said that after the plaintiffs gave up
their rights against custodian, the issue has been rendered redundant.
22. The Issue No.2 being fully covered by ratio of law laid down by
Full Bench of this Court in Bhartu's case (supra), the same is answered in
favour of respondents/defendants.
23. The plaintiffs have claimed their ownership over the suit land
by way of adverse possession. Trite it is that one who claims adverse
possession is required to prove that his possession is not only continuous but
hostile, exclusive and adverse to the true owner. In order to claim adverse
possession under a co-sharer, possessee needs to prove ouster of the other
co-owner. Admittedly, custodian always remained in possession of the suit
land by virtue of Section 8(4) of 1950 Act. The possession of the custodian
is deemed to be possession of all the co-owners including the defendants.
The plaintiffs failed to prove ouster of the defendants. Passage of time does
not extinguish right of co-sharers until their ouster is proved. Continuous
possession of plaintiffs thus has been rightly held to be not enough to prove
their possession to be adverse.
24. In view of above, this Court finds no reason to interfere in the
well reasoned findings recorded by the Lower Appellate Court. Resultantly,
finding no merit in the present appeal, the same is ordered to be dismissed.
25. Pending application, if any, shall also stands disposed off.
November 12, 2025 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes
Whether reportable : Yes
