RSA No.2676 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2676 of 1989 Date of Decision: 7.01.2009 Karnail Singh & Ors. ..Appellants Vs. Smt.Banto & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Grewal, Sr. Advocate, with Ms.Tanisha Peshawaria, Advocate, for the appellants. Mr.Sandeep Bansal, Advocate, for respondent No.1. --- Vinod K.Sharma,J. (Oral) This order shall dispose of RSA No.2676 and 2699 of 1989 both titled Karnail Singh & Ors. Vs. Smt.Banto & Ors., as common questions of law and facts are involved in both these appeals. For brevity the facts are taken from RSA No.2676 of 1989. This appeal is directed against the judgments and decrees dated RSA No.2676 of 1989 2 22.2.1985 and 21.8.1989 passed by the learned courts below decreeing the suit filed by plaintiff/respondent No.1 for joint possession and owner of 1/4th share of land situated in Lakhanpur Tehsil Kharar District Ropar Hadbast No.36 as per Jamabandi for the year 1978-79 and also the land situated in the revenue estate of village Bairampur, Hadbast No.38, Tehsil Kharar District Ropar vide Jamabandi for the year 1975-76 and three plots situated within the abadi deh of village Lakhanaur, Tehsil Kharar, District Ropar, as detailed in the head-note of the plaint. The plaintiff/respondent No.1 brought a suit on the pleadings that originally defendants Jiwa Singh, Ram Kishan, Bakhshi and Piara Singh and Ishar Singh sons of Jaimal Singh along with Hazara Singh son of Bir Singh were the owners of land and the plots in dispute. Hazara Singh was owner to the extent of 1/4th share and also owner of 3 plots and he was the sole owner of abadi plots as described in the head-note of the plaint. Piara Singh and Ishar Singh were said to have died and defendants Rulda Singh, Surmukh Singh and Ranjit Singh were said to be the legal representatives who inherited his estate and defendants Pritam Singh, Gurmail Siongh and Sewa Singh were the legal representatives of Ishar Singh who inherited his estate after his death. Hazara Singh died in the year 1952-53 at village Channauwala where he was serving as watchman. He was survived by his widow Smt. Harnam Kaur and plaintiff/respondent No.1 Smt.Banto wife of Surjit Singh. On the death of Hazara Singh his widow Smt. Harnam Kaur inherited the suit property as limited owner and with the coming into force RSA No.2676 of 1989 3 of Hindu Succession Act, 1956 she became the full owner thereof. Smt.Harnam Kaur died on 17.6.1981 at village Kotla Mehar Singh Wala Tehsil Moga and after her death the plaintiff became owner of the suit land to the extent of 1/4th share and exclusive owner of the plots. It is the case of the plaintiff that immediately prior to filing of the suit the defendants took exclusive possession of the suit property but their possession to the extent of 1/4th share was illegal and unauthorized and thus, the plaintiff claimed joint possession of 1/4th share in the suit property i.e. the landed property and claimed exclusive possession as owner of the three plots as described in the head-note of the plaint. It is the case of the plaintiff/respondent No.1 that defendants refused to admit her claim and thus, the suit was filed as cause of action accrued to her on the death of her mother on 17.6.1981. The suit was contested by the defendants by filing separate written statements. Defendants No.1, 3 to 8 and 9 in the joint written statement took a stand that the particulars of the land were not correctly given and khasra numbers were mentioned wrongly. It was also claimed that the pleadings of the plaintiff are vague and indefinite as no area of any khasra number or khata number has been given by the plaintiff. It was also the stand of the defendants referred to above that the land of village Bairampur was not under the ownership of Hazara Singh as owner in possession of 1/4th share as claimed. It was claimed that kharsa numbers of the land in village Lakhnaur were also mentioned wrongly. Ownership of Hazara Singh to plot No.1 and 2 was also denied and it was claimed that RSA No.2676 of 1989 4 plot No.1 is owned and possessed by Ram Kishan, Jiwa Singh, Rulda Singh, Ranjit Singh and Surmukh Singh whereas plot No.2 was owned and possessed by Bakshi son of Karam Singh and plot No.3 was owned by Bakshi son of Karam Singh who has constructed house thereon. It was claimed that description of plot No.3 was not correctly given. It was the case of the defendants that Hazara Singh died in December, 1952 and was not serving as watchman. It was claimed that said Hazara Singh was unmarried and Smt.Harnam Kaur was not the widow of Hazara Singh, neither the plaintiff was daughter of Hazara Singh. It was also claimed that Harnam Kaur never inherited the suit property as limited owner as she never visited the village. After the death of Hazara Singh mutation of inheritance was sanctioned in favour of the defendants and right from the date of death of Hazara Singh i.e. December, 1952 the defendants were in possession of the land left by Hazara Singh deceased. The defendants claimed that they were the only legal heirs of deceased, thus, succeeded to his estate in December, 1952. The defendants also claimed to be in possession of the land of share of the deceased Hazara Singh since December, 1952 and hence their long possession has matured into ownership. Plea of hostile possession was also raised. Thus, it was claimed that the defendants have become owners by adverse possession. It is also the case of the defendants that Smt.Harnam Kaur the alleged wife of Hazara Singh deceased never claimed the succession to the land of Hazara Singh right from December, 1952 till her death. The suit was RSA No.2676 of 1989 5 claimed to be time barred. The date of death of Harnam Kaur was also not admitted. It was asserted that the plaintiff did not become the owner of the suit property. It was also the case set up by the defendants that Smt. Harnam Kaur was not the mother of the plaintiff nor the plaintiff was, in any way, related to Hazara Singh and thus, she was not entitled to joint possession of the suit property nor to the exclusive ownership of the plots. It was also pleaded that the suit was not properly valued for the purposes of court fee and jurisdiction and the suit was said to be not maintainable in the present form. Locus standi of the plaintiff to file the suit was also questioned. On the similar lines written statement was filed by defendants No.2 and 7 and other defendants claiming that the plaintiff had no locus standi to file the present suit. In the replication the stand taken in the plaint was reiterated and case pleaded in the written statement was denied. On the pleadings of the parties the learned trial court was pleased to frame the following issues:- “1. Whether the plaintiff is entitled to the joint possession of 1/4th share out of the suit land, whether she is exclusive owner of three plots in suit? OPP 2. Whether Hazara Singh son of Bir Singh was the owner in possession of 1/4th share of the land in suit? OPP 3. Whether Smt.Harnam Kaur is the widow and Smt.Banto, daughter of Hazara Singh as alleged? OPP 4. Whether the suit has not been valued properly for the RSA No.2676 of 1989 6 purposes of court fee and jurisdiction? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has got no locus standi to file the present suit? OPD 7. Whether the suit is barred by time? OPD 8. Whether the plaintiff has knowingly filed a false and vexatious suit for harassing the defendants and as such, the defendants are entitled to special cost of Rs.10,000/-? OPD 8-A. Whether the defendants are the legal heirs of Hazara Singh deceased? If so its effect? OPD 8-B. Whether the defendants have become the owners of the suit property by way of adverse possession as alleged? OPD 8-C Whether the defendants have been in possession of the land of the share of decreased Hazara Singh since December, 1952 and whether their long possession has matured into their ownership? OPD 9. Relief.” The parties led evidence. On appreciation of evidence brought on record learned trial court decided issue No.1 in favour of plaintiff/respondent No.1 and held that the plaintiff/respondent No.1 was entitled to joint possession of 1/4th share out of the suit land and also that RSA No.2676 of 1989 7 she was exclusive owner of the three plots. On issue No.3 it was held that Harnam Kaur was the widow and the plaintiff/respondent No.1 was daughter of Hazara Singh. By relying on the copies of Jamabandis Ex.PH and Ex.PX the court decided issue No.2 also in favour of the plaintiff by holding that Hazara Singh son of Bir Singh was owner in possession of 1/4th share of the land in dispute. Issue No.4 was also decided in favour of the plaintiff and it was held that suit was properly valued for the purpose of court fee and jurisdiction. Issue No.5 was also decided in favour of the plaintiff and against the defendants. On Issue No.6 it was held that being the daughter of Hazara Singh, the plaintiff was entitled to have the locus standi to file the suit. Issue No.7 was also decided in favour of the plaintiff in view of the fact that after the death of Hazara Singh in December, 1952 Smt.Harnam Kaur had become the limited owner and her title was perfected in the year 1956. The learned court further held that as Harnam Kaur died on 17.6.1981, when, inheritance opened to the plaintiff on her death and thus, the suit was within limitation. It was also held that the possession of the defendants over the suit property was permissive and the suit was based on title. Issue No.8 was also decided against the defendants and it was held that the defendants were not entitled to special costs. Issues No.8-A, 8-B and 8-C were also decided in favour of the plaintiff and against the defendants. The suit was, thus, decreed by the learned trial court vide judgment and decree dated 22.2.1985. In the connected suit a finding was recorded that the land in Bairampur was not proved to be owned by Hazara Singh and thus, the suit RSA No.2676 of 1989 8 with respect to the land situated in village Bairampur was ordered to be dismissed. The appeal filed by respondent No.1 against the said findings was dismissed by the learned lower appellate court in view of the fact that the said finding was recorded on the concession of the learned counsel appearing on behalf of respondent No.1. The appellant/defendants challenged the findings on issues No.1 and 2 by claiming that Smt.Harnam Kaur was not proved to be the widow of Harnam Singh nor respondent No.1 was proved to be his daughter. However, learned lower appellate court observed that birth entry placed on record shows that Banto was daughter of Smt.Harnam Kaur from Hazara Singh. Said entry was exhibited as Ex.PB. Death certificate of Harnam Kaur was also looked into which was placed on record as Ex.PC where she was recorded as wife of Hazara Singh. Similarly voter list Ex.PX showed that Smt. Harnam Kaur was wife of Hazara Singh. Besides the documentary evidence there was statement of Ram Kishan, defendant who had admitted the factum of Smt. Harnam Kaur being the widow and plaintiff/respondent No.1 being the daughter of Hazara Singh. He further admitted that at the time of sanction of mutation Smt. Harnam Kaur was alive. Thus, learned lower appellate court in view of the documentary and oral evidence, affirmed the findings recorded by the learned trial court. Challenge was also made to the finding on issue No.7 which was said to be material issue wherein it was claimed that suit was barred by limitation as Hazara Singh had died in the year 1952 and mutation of his succession was sanctioned in the year 1953. It is also the case set up that as RSA No.2676 of 1989 9 succession never remains in abeyance, Smt. Harnam Kaur was entitled to possession of the suit land after the death of Hazara Singh. Smt. Harnam Kaur could file a suit within 12 years of taking actual possession by the appellants. It was also contended that after the attestation of mutation the defendant-appellants were in possession of the suit land since then and thus, the suit had become time barred. Even during the life time of Harnam Kaur she lost her title in the suit land and thus, the suit was barred by limitation. It was claimed that limitation to file a suit was 12 years which stood expired. It was also claimed that Article 65 of the Limitation Act applies to the suit for possession of immovable property based on title. However, this plea was contested by learned counsel appearing on behalf of plaintiff/respondent No.1 on the plea that possession of defendant-appellant never became adverse to the plaintiff as they had come in possession of the suit property as co-sharers and the possession of co-sharer does not become adverse to co-sharer as a co-sharer holds the possession of the property on behalf of all the co-sharers. It was also the case that mere possession, howsoever long, does not necessarily mean that it was adverse to the true owner. Possession has to be hostile and express and should amount to denial of title of true owner. Learned lower appellate court followed the settled principle that if the defendants fail to prove adverse possession over the suit property the suit has to be held to be within limitation as the limitation of 12 years has to start when the possession of the defendants becomes adverse. The learned lower appellate court also observed that plea of RSA No.2676 of 1989 10 adverse possession presupposes the plaintiff to be owner of the property. The learned court also observed that the statement of Ram Kishan defendant was sufficient to dislodge the plea taken by the appellants as there was admission by him that the defendants used to cultivate the land of Hazara Singh as his tenants. The other defendant Rulda Singh also admitted that they were cultivating the land with the consent of Hazara Singh and they used to pay Batai to Harnam Kaur after the death of Hazara Singh. The learned court observed that the defendant/appellants failed to prove as to when their possession became adverse to the plaintiff. The plea that there was no evidence with regard to the payment of rent to Smt. Harnam Kaur was rejected in view of the admission of the defendants that they were paying rent to Smt.Harnam Kaur. The learned court further observed that mere non- payment of rent does not lead to conclusion that the possession had become adverse. It was also the stand of the appellant/defendants that Harnam Kaur had succeeded as limited owner and when the Hindu Succession Act came into force she was not possessing any property and therefore, she could not become owner of the suit property. The contention of the learned counsel was that she could become owner only if she seeks possession of the property prior to coming into force the Hindu Succession Act. The plea was also raised that as the estate was lost by the widow the same could not be revived after the commencement of the Act. The case was that in view of the mutation sanctioned in the year 1953 in favour of the RSA No.2676 of 1989 11 appellant/defendants it has to be held that Smt.Harnam Kaur had lost estate. This plea of the appellants was rightly rejected by the learned lower appellate court by holding that the mutation does not create any title. The learned court also observed that at the time of mutation no notice was given to Smt.Harnam Kaur and thus, it could not be held that she had lost estate as was claimed. Appeal was also dismissed. Mr. G.S.Grewal, learned senior counsel appearing on behalf of the appellants rightly did not challenge the concurrent findings of fact recorded by the learned courts below holding that Smt.Harnam Kaur was widow of Hazara Singh and that Banto respondent No.1 was the daughter of Hazara Singh. Learned senior counsel appearing on behalf of the appellants contended that the following substantial questions of law arise for consideration in this appeal:- 1. Whether the case is governed by customary law of agriculturist as the original owner Hazara Singh died in the year 1952 and the succession opened in 1952, and the time of his death the Hindu Succession Act was not applicable? 2. That the finding recorded by the learned courts below holding Harnam Kaur to be widow is the outcome of misreading of the evidence brought on record as the same is alleged to be based on the mere statement of witnesses. 3. When Harnam Kaur never claimed right to maintenance RSA No.2676 of 1989 12 after the death of Hazara Singh and the property was not in her possession, thus she did not have any interest left in the property which could mature into ownership after coming into force of the Hindu Succession Act, 1956? In support of questions of law so raised learned senior counsel vehemently contended that the parties were governed by customary law of agriculturist in view of the fact, that Hazara Singh died in the year 1952. On the date of his death Smt.Harnam Kaur had no title or interest in the suit property which could mature into absolute ownership after coming into force of Hindu Succession act, 1956. The contention was based on the fact that there was no material on record to show that Smt.Harnam Kaur claimed right of maintenance from the property to have a limited interest in the agricultural land left by Hazara Singh. It was also the contention of the learned senior counsel for the appellants that at the time of coming into force of Hindu Succession Act Smt.Harnam Kaur was not in possession of any property of Hazara Singh as the possession was with the defendant-appellants. This plea of the learned senior counsel deserves to be rejected for more than one reasons – firstly no custom was pleaded before the learned courts below to claim that the parties were governed by customary law of agriculturist. It also cannot be said that Smt.Harnam Kaur was not in possession in view of the concurrent finding of fact recorded by the learned RSA No.2676 of 1989 13 courts below holding that the possession of the defendant/appellants was that of co-sharers, thus, they were holding the property on behalf of all the other co-sharers. It also cannot be said that Smt.Harnam Kaur did not claim any interest in the property as contended by the learned senior counsel appearing on behalf of the appellants as it was admitted case of the defendants that they were holding the property as tenants and that Batai was being paid to Smt.Harnam Kaur. The concurrent finding of fact in this regard is not open to challenge in regular second appeal. Mr.Sandeep Bansal, learned counsel appearing on behalf of the plaintiff/respondent No.1 contended that the plea of the learned senior counsel for the appellants cannot be accepted in view of the provisions of Hindu Women's Rights to property Act, 1937 which was enforced in the year 1937. Section 3 of the Hindu Women's Rights to property Act, 1937 reads as under:- “3. (1) When a Hindu governed by the Dayabhaga school of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow or if there is more than one widow, all his widows' together shall subject to the provisions of sub-S. (3), be entitled in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall RSA No.2676 of 1989 14 inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son, if there is surviving a son or son's son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. (2) When a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-S. (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest,, known as a Hindu women's estate, provided however that she shall have the same right of claiming partition to a male owner. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies.” It cannot be said that Smt.Harnam Kaur did not succeed to the property of Hazara Singh on his death being widow. RSA No.2676 of 1989 15 The substantial questions of law framed do not arise for consideration in this appeal as no such plea with regard to custom was raised before the learned trial court. Even otherwise, once it is held that Smt.Harnam Kaur had limited interest in the property, which got matured into absolute ownership, thus, the courts below rightly held plaintiff/respondent No.1 to be the owner by way of succession to 1/4th share of agricultural land belonging to Hazara Singh as well as the plots. The findings recorded by the learned courts below, deserve to be upheld and the substantial questions of law are answered against the appellant. Consequently, finding no merit in the present appeals the same are ordered to be dismissed but with no order as to costs. 7.01.2009 (Vinod K.Sharma) rp Judge