Case: Gurbinder Singh And Another Vs. Lal Singh And Another

2. Mst. Raj Kaur was in possession of 851 kanals 18 marlas of land situate in village Dhaipai in the former State of Faridkot. Out of this land 481 kanals 7 marlas was in her possession as occupancy tenant, the landlord being the Raja of Faridkot while the remaining land was held by Smt. Raj Kaur as Adna Malik the Aala malik again being the said Raja of Faridkot. In Samvat 1953 (A.D. 1898) Smt. Raj Kaur who had two daughters Prem Kaur and Mahan Kaur, adopted, the farmers son Bakshi Singh and put him in possession of the whole of the land. Bakshi Singh transferred part of the land to Pratap Singh, second son of Mahan Kaur, who is respondent No. 2 in the appeal. Mahan Kaur had one more son Lal Singh and he is respondent No. 1 in this appeal3. In the year 1915 the Raja of Faridkot filed a suit against Bakshi Singh and Raj Kaur in the Court of Sub-Judge, Faridkot for a declaration that the adoption of Bakshi Singh was invalid. This suit was decreed on February 9, 1916. Raj Kaur died on August 14, 1930. On February 19, 1934 the Raja filed two suits against Bakshi Singh and Pratap Singh for possession of the aforementioned lands, one pertaining to the land of which Raj Kaur was occupancy tenant and the other for that of the land of which she was Adna malik. These suits were decreed on March 12, 1938 and in execution of the decrees obtained in these suits the Raja took possession of the entire land in October 1938. On April 7, 1948 he sold the entire land along with some other land to one Kehar Singh for Rs. 84,3575-0. Thereupon Gurbinder Singh and Balbinder Singh, who are the appellants before us, filed a suit for preemption of the land against Kehar Singh and obtained a decree in their favour. In execution of that decree they got possession of the land on June 22, 19504. On October 20, 1948 Mst. Prem Kaur instituted a suit for possession of the entire land on the ground that she was the legal heir of Raj Kaur against Kehar Singh and the Raja of Faridkot. Later she impleaded the appellants as defendants to that suit and discharged the Raja of Faridkot. On February 17, 1950, Lal Singh, respondent No. 1 filed a suit for possession of the entire land against the Raja of Faridkot and Kehar Singh. To that suit he joined Prem Kaur and Pratap Singh as defendants. Later, however, Pratap Singh was transposed as a plaintiff. Both the suits were consolidated and were tried together. The suit of Prem Kaur was dismissed by the trial Court but that of the respondents was decreed to the extent of half share in the property. Prem Kaur and the appellants preferred appeals before the District Court but that Court dismissed both the appeals. A second appeal was taken by the appellants as well as by Prem Kaur to the High Court and cross-objections were preferred by the respondents. The High Court dismissed these appeals as well as the cross objections.

Reasoning: 5. In the absence of any appeal by Prem Kaur against the decision of the High Court confirming the dismissal of her suit we have only to consider the claim of the respondents to half the property left by Raj KaurTherefore, it is more accurate to say that the possession of the Raja became adverse to Prem Kaur and to the respondents Lal Singh and Pratap Singh as from October, 1938. Kehar Singh who was a transferee from the Raja stood in the Rajas position and got the benefit of the Rajas adverse possession. Similarly the appellants who had pre-empted these lands under the decree obtained against Kehar Singh got advantage not only of the Rajas adverse possession but also of Kehar Singhs. The sum total of the adverse possession of these three persons at the date of the respondents suit would, however, be less than 12 years and so the respondents suit could not be said to be barred by Art. 144 if the starting point of limitation is taken to be some day in October, 1938From the facts of the case it will be clear that what was tacked on was not the possession of independent trespassers at all. In the case before us what is being sought to be tacked on to the possession of the Raja and those who claim through him is the possession of Bakshi Singh and Pratap Singh. The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers. As it has turned out, the possession of the Raja, though obtained under the decree of a civil Court, was in itself a trespass on the rights of the persons who were in law entitled to possession of property. Thus this is a case of one trespasser trespassing against another trespasser. There is no connection between the two and, therefore, in law their possession cannot be tacked, on to one another. As pointed out by Varadachariar, J., in Rajagopala Naidu v. Ramasubramania Ayyar, AIR 1935 Mad 449   :"Further the doctrine of independent trespassers will come in only, when the second man trespasses upon the possession of the first or the first man abandons possession."10. This view has not been departed from in any case. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S. 2 (4) of the Limitation Act thus :defendant includes any person from or through whom a defendant derives his liability to be sued"No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession. In our opinion, therefore, the respondents suit is within time and has been rightly decreed by the Courts below.