R.S.A.No. 402 of 2011(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 402 of 2011(O&M) Date of decision: 30.3.3011 Gurdial Singh and another ......Appellants Versus Kesro @ Shanti and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Kuldip Sanwal, Advocate, for the appellants. **** SABINA, J. The plaintiffs have filed a suit for declaration to the effect that they were co-owners in possession of the suit land to the extent of 1/12th share and challenged the mutation No.1667 dated 31.10.1949 and mutation No.348 dated 23.8.1966. The case of the plaintiffs, in brief, was that the suit land was owned by Khazanu. The pedigree table, as shown in para 2 of the judgment of the trial Court, is as under:- R.S.A.No. 402 of 2011(O&M) 2 Lehru | | | | Khazanu Beli Hari Singh (died) Faquir | -------------------------------- | | Ranjit Singh Kuldip Singh Karnail Singh Vakilo (died) deft. No.3 deft.No.4 deft.No.5 --------------------------------------------- Gurdial Singh (deft.No.1) Bhagwanti (deft.No.2) | | -------------------------------------------------------------------------------------------------------- | | | | Kesro @ Shanti Bua Wati @ Maya Kaushalya (died) Bhakko (died) (died) | | -------------------------------------- | Kishore Singh Balbir Singh | Hans Raj (plff.No.2) Plff.No.4 Plff.No.3 | Harbans Singh | --------------------------------- | | Madan Singh Kewal Singh Plff.No.5 Plff.No.6 | ----------------------------- Asha Rani Plff.No.2 (i) Jyoti Rani Rajesh Kumar Naresh Kumar Wd/o Plff.No.2(ii) Plff.No.2(iii) Plff.No.2(iv) Khazanu died on 15.4.1949 and was succeeded by his daughters. At that time except Kesro, all the other daughters of Khazanu were married. Vakilo, father of defendants No.1 and 2 and Hari Singh, father of defendants No.3 to 5 were first cousins of the daughters of Khazanu and started helping them in cultivating the suit land. Except Kesro, all the other daughters of Khazanu had since died and were succeeded by their children who were plaintiffs No.2 to 6 and defendants No.7 and 8. Defendants No.1 to 5 were the legal heirs of deceased Vakilo and Hari Singh. The daughters of Khazanu had been misled by Vakilo and Hari Singh and subsequently by their children. A Gazette notification dated 1.2.1993 was issued under Section 4 of the Land Acquisition Act, 1894, whereby the suit land was sought to be acquired. Thereafter, the plaintiffs came to know R.S.A.No. 402 of 2011(O&M) 3 that their names were not mentioned in the revenue record. On enquiry it revealed that mutation No.1667 dated 31.10.1949 and mutation No.384 dated 23.6.1966 had been sanctioned in favour of the defendants. In mutation No.1667 it had been recorded that Khazanu had died un-married and issueless, whereas, in mutation No.348, there was no mention qua death of Vakilo. Some other women had been produced as daughters of Khazanu at the time of sanction of mutation. Khazanu had not executed any Will in favour of Hari Singh or Vakilo. The plaintiffs gave up their relief against defendants No.6 to 16. Defendants No.3 to 5, in their written statement, admitted the claim of the plaintiffs. Defendants No.1 and 2 denied the contentions in the plaint. It was averred that Khazanu was not the father of plaintiff Nos.1 to 6 and grand father of defendants No.2 to 6. It was averred that Khazanu had died leaving behind no male issue and widow. All his daughters were already married and were living in their matrimonial homes. Vakilo and Hari Singh were in exclusive possession of the suit property. In the alternative, it was prayed that the answering defendants had become owner in possession of the suit land on the basis of their adverse possession. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled to declaration prayed for? OPP. 2. Whether the plaintiffs are entitled to permanent injunction prayed for? OPP R.S.A.No. 402 of 2011(O&M) 4 3. Whether the suit is not maintainable for declaration and injunction simpliciter ? OPD 4.Whether the suit is within limitation? OPP 5. Whether the defendants are entitled to compensatory costs? OPD 6. Whether the suit is bad for non-joinder of necessary parties ? OPD 7. Whether the suit is within time by newly added plaintiffs? OPD 8. Whether the suit is not maintainable for corpus of land having already extinguished? OPD 9. Whether the plaintiffs have no cause of action to file the present suit ? OPD 10. Relief.” Civil Judge (Jr.Divn.) vide judgment and decree dated 26.3.2003 decreed the suit of the plaintiffs and declared them co- owners in possession of the suit property to the extent of 1/12th share. Aggrieved by the said judgment and decree, defendants No.1 and 2 preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 24.2.2010. Hence, the present appeal by defendants No.1 and 2. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, the dispute relates to the property owned by Khazanu. Admittedly, Khazanu was not survived by any male child. Khazanu died in the year 1949 and mutations were R.S.A.No. 402 of 2011(O&M) 5 sanctioned in favour of the defendants qua his inheritance. Admittedly, Khazanu left behind four daughters namely Kesro @ Shanti, Bua Wati @ Mayo, Kaushalya and Bhakko. Admittedly wife of Khazanu had pre-deceased him. In the present case, although it was pleaded in the plaint that Kesro , daughter of Khazanu was un- married at the time of his death but it came on record that Kesro was married at the time of death of Khazanu. In this regard, Narotam Singh DW-1, Clerk of SMSD Rajput Senior Secondary School, Sujanpur was examined to prove the date of birth of Ajit Singh, son of Kesro. As per the said witness, the date of birth of Ajit Singh was 11.4.1947 according to their record. Thus, Kesro was already married and was having a child when Khazanu died on 15.4.1949. In these circumstances, all the daughters of Khazanu were liable to inherit the property of their father. Succession never remains in abeyance and after the death of Khazanu, all his daughters inherited his property in equal shares. Thus, the daughters of Khazanu became co-owners/ co-sharers in the suit property, which was jointly held by Khazanu with other co-sharers. The impugned mutations were apparently got sanctioned by Hari Singh and Gurdial Singh in their favour by misrepresenting the facts. In mutation Ex.PY, no mention was made qua the existence of daughters of Khazanu. In mutation Ex.P-4, the presence of daughters of Khazanu was reflected but their signatures or thumb impressions were not obtained to substantiate their presence. In these circumstances, the Courts below rightly held that the impugned mutations were liable to be set aside. The plea of the appellants that they had become owners by way of adverse possession was also rightly rejected by the Courts R.S.A.No. 402 of 2011(O&M) 6 below as a co-sharer in possession is deemed to be in possession of the land on his behalf and on behalf other co-sharers. Hence, the possession of the appellants could not be said to be adverse possession. Since the suit filed by the plaintiffs was based on inheritance, the suit of the plaintiffs could not be said to be barred by limitation. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE March 30, 2011 anita