R.F.A. No. 2059 of 1984 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) R.F.A. No. 2059 of 1984 Date of decision: September 05, 2008 Mangtu deceased through L.Rs. .. Appellants. v. Than Singh deceased through L.Rs. and others .. Respondents. (2) R.F.A. No. 2125 of 1984 Sumera and others .. Appellants. v. Than Singh deceased through L.Rs. and others .. Respondents. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. C. B. Goel, Advocate for the appellants. Mr. M. S. Khaira, Senior Advocate with Mr. Jaswant Jain, Advocate for the respondents. Rajesh Bindal J. This order will dispose of the above mentioned two appeals, as the same arise out of common order of learned Additional District Judge (II), Narnaul. However, the facts have been extracted from R.F.A. No. 2125 of 1984. The appellants are before this Court aggrieved against the order passed by the learned Court below in proceedings under Section 30 of the Land Acquisition Act, 1894 (for short, `the Act'), whereby apportionment of the compensation is in dispute. Briefly, the facts are that in April, 1979, the State of Haryana acquired 69.69 acres of land in Village Mukandpur Bassai, Tehsil Rewari, District Mahendergarh for the purpose of construction of left embankment of Massani Barrage by the the Irrigation Department. As per the statement on Form 19, prepared by the Land Acquisition Collector (for short, `the Collector'), the particulars of the owners of the land acquired to whom the R.F.A. No. 2059 of 1984 [2] compensation was to be granted were available. The dispute arose before the Collector at the time of disbursement thereof when Nain Sukh and others, residents of Village Mukandpur Bassai, claimed entire compensation amount including the compensation assessed qua the shares of Ram Sarup and Kanhiya sons of Nandan son of Tota Ram, who had been recorded as owners to the extent of 1/3rd share as gair bazran. It is the successors-in- interest of Ram Sarup and Kanhiya who claimed the compensation to the extent of their shares. After examining the matter in detail, the learned Court below opined that the claim petition filed by Nain Sukh, Chandgi and others was misconceived and the parties to the dispute were entitled to share of compensation on account of the acquired land according to the quantum of land owned by them. Learned counsel for the appellants submitted that as per the revenue record, Ram Sarup and Kanhiya were shown to be gair bazran. The entire land was in possession of Nain Sukh and others. Once whereabouts of Ram Sarup and Kanhiya sons of Nandan son of Tota Ram were not known, their successors-in-interest were not entitled to any compensation whatsoever. However, he did not dispute the fact that in the revenue record, Ram Sarup and Kanhiya have been shown to be the co-sharers to the extent of 1/3rd with the appellants. On the other hand, learned counsel for the respondents submitted that the stand of the appellants in the objection petition filed before the Court below was altogether different than the issue on which they led evidence which cannot be considered at all as the same was beyond pleadings. Once Ram Sarup and Kanhiya had been shown to be co-sharers in the big chunk of land with the appellants, the appellants cannot claim themselves to be in exclusive possession or even the ownership thereof as any co-sharer remains in possession of the land on behalf of all others even if any one of them has exclusive possession of a part of the land. There is no question of adverse possession, abandonment or relinquishment of rights by one co-owner in favour of the other co-owner even after the land was not being cultivated by him. Reliance has been placed upon Kanhiya Shanker and others v. Mohabata Sedhu and others, AIR 1960 Punjab 494; Gram Panchayat Sidhbari, Tehsil Kangra v. Sukh Ram Dass, (1963) 65 P.L.R. 1043; Govindammal v. R. Perumal Chettiar & others, AIR 2007 SC 204 and R.F.A. No. 2059 of 1984 [3] P.T. Munichikkanna Reddy and others v. Revamma and others, AIR 2007 SC 1753. Heard learned counsel for the parties and perused the record. The details on Form No. 19 regarding amount of compensation payable to the owners of the land, as prepared on the basis of revenue record and as is noticed in the judgment of the Court, is extracted as under: “Name of the owner Land acquired Net compensation Ram Sarup, Kanhiya Khewat/Khatauni 46289-91-51 paise ss/o Nand s/o Tota Ram No. 2/4 1/3 share gair bazran. Khasra No. 41 5/2, 6/1, 7/1/1 0-6 6-10 0-7 Nain Sukh s/o Gribu Khasra No. 42 Ram Sarup Kanhiya s/o Jivraj 1/6 sharer 8, 9, 10 1/6 1/6 Paras Ram s/o Nodan 3-16,8-0, 8-0 6614-91 7714-91 s/o Gribu 11/48 share, 11/1, 12 Nain Sukh Paras Ram Balwant, Ishwar, Kanwar 2-9, 6-18 1/6 11/48 Singh ss/o Gribu 7714-92 10608-02 43/16 share, Hari Ram, Total land Balwant Ishwar Lila, partner, Phul Singh measuring 1/16 1/16 ss/o Sehaj Ram s/o Jai 34 K 17 M 2893-09 2893-09 Kishan 1/12 share. Chahi Kanwar Singh Hari Ram 1/16 1/48 2893-09 964-97 Lila Partap 1/48 1/48 964-37 964-37 Phul Singh 1/48 964-37 L.A. Case No. 61 of 1981 (Nain Sukh Vs. Than Singh) Ram Sarup, Kanhiya, 2/4 46289-51 sons of Nandan son Khasra No. 41 of Tota 1/3 share 5/2 6/1 gair Hazran 0-6, 6-1 Nain Sukh s/o Gribu, 7/1/1, 42/8 son of Jivraj, Chotta 0-7 3-16 1/6 share Paras Ram son of 9 10 Bodam s/o Gribu 11/48 8-0, 8-0 Balwant, Ishwar, 11/1, 18 7714-91, 7714-91 Kanwar Singh ss/o 2-9 5-18 Ram Sarup 1/6 Kanhiya 1/6 Nain Sukh s/o Gribu 8/16 share total land 7714-92 10608-02 measuring 34K Nain Sukh 1/6 Paras Ram 11/48 37 marla Chahi 2893-09 2893-09 Balwant 1/16 Ishwar 1/16 2893-09 964-37 Kanwar Singh Hari 1/16 1/48 Lila 1/48, Partap 1/48, Phul Singh 1/48 964-37 964-37 964-37 R.F.A. No. 2059 of 1984 [4] L.A. Case No. 62 of 1981 (Chander etc. vs. Than Singh etc.) Ram Sarup, Kanhiya 7/26 110842-46 ss/o Nandan s/o Tota 30/1, 28 1/3 share gair 0-1, 13/2/16 Hazran 8-0 Chandgi, Surta 17 Mukhram 8-0 Zile, Ram Kala, Jit Ram, 18/1, 23/2, 24, 25 ss/o 1/16 share 3-4 5-4 8-0 8-0 15/220 Smt. Mihali, Pharto Mehro, Roshani, Dharam 29/20, 21/3/2, 4, 5 Kaur, Ram Rati, Rattani 6-0, 7-05, 8-0 7-5 1/21 share Ram Chander s/o Siboo 6 7 18473-74 18473-75 d/o Bansi 1/168 share, 5-8, 8-0 Ram Sarup 1/6 Kanhiya 1/6 Chhoti widow of Harnu 9896-94 9896-65 s/o Bansi 1/12 share, Chandgi 5, Surja 5 Vasi Deh Neej Kabzan 56 5-56 Hissa Gair Hazran total land measuring 9896-65 9896-65 83K 9 M chahi Kukhram 5/56 Zile 5/56 9896-65 9896-65 Ram Kala 5/56 Jitram 5/56 659-77 659-77 Nihali 1/168 Pharto 1/168 169-77 659-78 Mehro 1/168 Roshani 1/168 659-78 659-78 Dharamkaur 1/168 Ram Rati 1/168 Rattani 1/168 659-78 659-78 Ram Chander 1/168 9236-87 1/12.” A perusal of the details, as noticed above, shows that Ram Sarup and Kanhiya have been shown to be the co-sharers in the land to the extent of 1/3rd share, whereas rest of the land is owned by other co-sharers. The contention of learned counsel for the appellants that an absentee co- sharer in fact, does not remain owner of the land is totally misconceived. No judgment taking a view to that effect has been cited. The settled principle is that any co-sharer even in exclusive possession of the land holds the same on behalf of all the co-sharers. The plea set up by the appellants that in fact, the other co- sharers had abandoned or relinquished their rights in favour of the appellants cannot be accepted as such. Even the plea of adverse possession against the other co-sharers also cannot be accepted. As held by Hon'ble the Supreme Court in R. Perumal Chettiar's case (supra), a simple long R.F.A. No. 2059 of 1984 [5] possession is not effective to oust a co-sharer from the title of the property but something more positive is required to be done. There must be a hostile open possession denial and repudiation of the rights of other co-owners and this denial or repudiation must bring home to the co-owners. In the present case, there is no such action on the part of the appellants in this direction. In Md. Mohammad Ali (dead) by LRs v. Jagdish Kalita & others, (2004) 1 SCC 271, Hon'ble the Supreme Court examined a series of decisions on the question of adverse possession and after extracting the legal propositions from various decisions, their Lordships concluded that long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-sharer and the right of a person or his predecessors-in-interest is deemed to have been protected by the trustees. In Vidya Devi alias Vidyavati (dead) by LRs v. Prem Parkash and others, (1995) 4 SCC 496, Hon'ble the Supreme Court held that when no period of limitation is fixed for filing a suit for partition by a co- bhumidhar against his other co-bhumidhars in respect of a joint holding, the question of the other co-bhumidhar acquiring his title to such holding by adverse possession for over 12 years can never arise. For the reasons mentioned above, I do not find any merit in these appeals. Accordingly, the same are dismissed. (Rajesh Bindal) Judge September 05, 2008 mk