RSA No.4657 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4657 of 2002 Date of Decision: 29.10.2009 Smt. Gita and another .....Appellants Vs. Smt.Jetan ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Vinod Gupta, Advocate for the appellants. Mr. R.S. Tilak Redhu, Advocate for the respondent. .... RAJIVE BHALLA, J (Oral) The appellants challenge judgements and decrees dated 20.8.1992 and 30.3.1999, passed by the Sub Judge, Ist Class,Fatehabad and the Additional District Judge, Hisar, decreeing the suit filed by the respondent and dismissing the appeal filed by the appellants. The plaintiff/respondent filed a suit for possession of the suit land by alleging that Ram Kumar was the owner of the suit land. He died intestate and left behind his mother, the plaintiff, his wife appellant no.1 and his daughter appellant no.2. The defendants/appellants, however, got Mutation No.1870 dated 6.2.1976, sanctioned in their name alone, without informing the revenue authorities that the respondent is entitled to inherit 1/3 share. The defendants/appellants opposed the prayer in the suit by asserting that as the respondent is the step mother of Ram Kumar, she is not RSA No.4657 of 2002 2 entitled to succeed to his property. It is also pleaded that the suit is barred by limitation, as the mutation dated 6.2.1976 has been challenged in the year 1991. In the alternative, the appellants pleaded that they have become owners by adverse possession. On the basis of the pleadings, the learned trial court framed the following issues :- “1. Whether the plaintiff is owner of the suit land ? OPP. 2. If issue No.1 is proved, then whether the plaintiff is entitled to recover the possession from the defendants ? OPP. 3. Whether the plaintiff has no locus standi to file the present suit ? OPD. 4. Whether the suit is beyond limitation ? OPD. 5. Whether the suit is not maintainable in the present form ? OPD. 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ? OPD. 7. Whether the civil court has no jurisdiction to entertain and try the present suit ? OPD. 8. Whether the defendants have become the owners of the property in dispute on the basis of adverse possession ? OPD. 9. Whether the suit is not properly valued for the purpose of court fees and jurisdiction ? OPD. 10. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by holding that the appellants have failed to prove that Smt. Jetan is the step mother of Ram RSA No.4657 of 2002 3 Kumar or that they have become owners by adverse possession. It was also held that as succession does not remain in abeyance Smt.Jetan succeeded to the estate of Ram Kumar on his death. The suit cannot be said to be barred by time in view of Section 65 of the Limitation Act, 1963. Aggrieved by the aforementioned judgement and decree, the appellants filed an appeal. Vide judgement and decree dated 30.3.1999, the learned Additional District Judge, Hisar dismissed the appeal. Counsel for the appellants submits that the judgement and decree passed by the first appellate court is null and void. The first appellate court has failed to record separate findings on all issues. In fact the plea of adverse possession and the plea that the suit is barred by time have not been decided. It is prayed that in this view of the matter, the appeal be allowed and the matter be remitted to the first appellate court to decide the appeal afresh. In addition to these arguments, counsel for the appellants submits that the suit was filed in the year 1991, whereas the mutation was sanctioned in 1976. The suit, therefore, is clearly barred by time. The last argument is that as admittedly, the appellants are in possession after the death of Ram Kumar, they have perfected their title by adverse possession. It is submitted that in view of the errors committed by the courts below, the following substantial questions of law arise for adjudication :- “1. Whether the first appellate court was required to return findings on all issues ? 2. Whether the suit was barred by limitation ? 3. Whether the appellants have perfected their title by adverse possession ? RSA No.4657 of 2002 4 Counsel for the respondent, on the other hand, submits that findings of fact recorded by the courts below do not suffer from any error much less raise any substantial question of law. It is argued that the first appellate court has returned findings on the arguments that were addressed before it. The appellants did not raise any argument on limitation and adverse possession and, therefore, the first appellate court was not required to return any finding on these issues. It is submitted that the suit is within time as succession opened on the death of Ram Kumar. The respondent became a co-sharer in joint possession with the appellants. The suit based upon title, therefore, is not barred in view of the provisions of Section 65 of the Limitation Act. It is also submitted that the appellants cannot plead adverse possession, as they have failed to plead or prove its essential ingredients. It is argued that as the impugned judgements do not suffer from any error, the appeal should be dismissed. I have heard learned counsel for the parties, perused the impugned judgements, considered the questions of law framed but express my inability to hold that the impugned judgements suffer from any error of law, much less raise a substantial question of law. The plaintiff/respondent filed a suit claiming 1/3rd share in the estate of Ram Kumar, her son. The appellants pleaded that as Smt. Jetan is the step mother of Ram Kumar, she is not entitled to succeed to his estate. In addition, they asserted ownership by adverse possession and prayed for dismissal of the suit as barred by time. Both the trial court and the first appellate court have recorded concurrent opinions that as Smt. Jetan is the real mother of Ram Kumar, she has succeeded to his estate as owner in RSA No.4657 of 2002 5 joint possession of 1/3rd share. The courts below have based their findings upon the deposition of the respondent, her witnesses and documents Exs. P-8 to P-10. The documents Exs. P-8 to P-10 record Ram Kumar as the real brother of Ram Singh, Om Parkash and Subhash, who are admittedly the sons of the respondent. The appellants apart from their oral depositions and the depositions of their witnesses, have failed to produce any evidence that would even remotely suggest that Smt. Jetan is the step mother of Ram Kumar. The appellants could have named the real mother of Ram Kumar, produced evidence to establish when and how Ram Kumar's real mother passed away, etc. Unfortunately no such evidence is forthcoming. In the absence of any credible evidence, in support of the claim set up by the appellants, the findings recorded by the courts below that Smt.Jetan is the real mother of Ram Kumar, cannot be faulted. With respect to the questions of law raised by counsel for the appellants, it is true that a first appellate court is a final court of fact and should, therefore, have decided all issues in dispute. A perusal of the first appellate court's judgement reveals that it has not recorded any finding on the plea of ownership by adverse possession or on the plea of limitation. The appeal, therefore, should have been allowed and remanded to the first appellate court. However, taking into consideration the long drawn out litigation and the fact that remand would only delay the inevitable, I have heard learned counsel for the appellants on the issues of adverse possession and limitation, perused the judgement recorded by the trial court, considered the material on record and hold that the suit is neither barred by limitation and nor have the appellants been able to prove their ownership by adverse possession. RSA No.4657 of 2002 6 Adverse possession is a question of fact and like all questions of fact must be proved by relevant pleadings duly supported by cogent evidence so as to establish open, hostile possession to the knowledge and exclusion of the possessory and proprietary rights of the true owner for a continuous period of 12 years or more. A perusal of the pleadings, the evidence on record and the findings recorded by the trial court, leaves no manner of doubt that the plea of adverse possession is deficient not merely in material pleadings but also in relevant evidence. Mere possession, however, long, in the absence of intent to oust the possessory and proprietary rights of the true owner would not establish a plea of adverse ownership. The appellants, therefore, cannot be said to have perfected their ownership by adverse possession. With respect to the plea that the suit is time barred, suffice it to say that succession opened upon the demise of Ram Kumar, in the year 1973. The respondent became co-owner in joint possession of 1/3rd share of the suit land and the mere sanction of a mutation in favour of the appellants in the year 1976 would not oust her ownership. A mutation neither confers nor divest a person of his title and even otherwise, it was sanctioned without notice to the respondent. It would also be necessary to mention here that a plea for possession based upon prior title falls under Section 65 of the Limitation Act. The suit, therefore, cannot be said to be barred by limitation. In view of what has been stated herein above, the appeal is dismissed with no order as to costs. 29.10.2009 (RAJIVE BHALLA) GS JUDGE