Judgment:
Ashutosh Mohunta, J.
1. The defendants have filed this appeal to challenge the judgment and decree dated 21.10.1982 passed by the Additional District Judge, Kurukshetra, whereby the suit for declaration filed by Smt. Kesar and Mst. Jehro, respondent Nos. 1 and 2, has been decreed by setting aside the judgment and decree dated 15.4.1981 passed by the Sub Judge, 1st Class, Kaithal.
2. Briefly, the facts of the case are that Smt. Kesar and Smt. Jehro filed a suit for declaration to the effect that they are owners in possession of the suit land left behind by their brother Duni Chand, who died issueless in the year 1951. According to them the defendants got the mutation entered in their favour in the year 1953 without notice to them, which fact came to their notice in the year 1972 when the defendants refused to pay the Batai to them. The suit was contested by the defendants who pleaded that the plaintiffs are not the sisters of Duni Chand deceased and that they being collaterals, the mutation was got entered in their name. They also pleaded that the suit was barred by time and that they had become owners by way of adverse possession. On the pleadings of the parties, the Sub Judge, 1st Class, Kaithal, framed a number of issues. However, the suit was dismissed on the ground of limitation and the uninterrupted and continuous adverse possession of the defendants since the year 1953. However, the plaintiffs were held to be the sisters of Duni Chand defendant and owners of the suit property being the only heirs of their deceased brother Duni Chand. The judgment passed by the trial Court was challenged in appeal. The Additional District Judge, Kurukshetra, vide the impugned judgment dated 21.10.1982 accepted the appeal and set aside the judgment and decree dated 15.1.1981 passed by the Sub Judge; 1st Class, Kaithal, by holding that the suit was within limitation and that the defendants being co-sharers had failed to prove their adverse possession of the suit property. Now the defendants have filed the present appeal to challenge the judgment and decree dated 21.10.1982 passed by the Additional District Judge, Kurukshetra.
3. The following substantial questions of law arise for determination by this Court in the present appeal :-
1. Whether a co-sharer can claim ownership on the basis of his long and uniterrupted possession for more than 20 years or not?
2. Whether the present suit was filed by the plaintiffs beyond the prescribed period of limitation?
4. It has been contended by Mr. H.S. Hooda, learned Senior Advocate, appearing for the defendant-appellants that mutation in favour of the appellants was sanctioned on 12.12.1953 and since then they remained in uninterrupted possession from any quarter whatsoever. He contends that even if the plaintiffs claim themselves to be the legal heir of Duni Chand deceased on the basis of their sanguinity with him even then their claim is of no use in the face of the adverse possession of the defendants, which is notice and uninterrupted ever since the mutation (Ex.D3) was sanctioned in their favour in the year 1953. The plaintiffs filed the suit in the year 1973, i.e. after about 20 years of the sanction of the mutation in favour of the defendants. He further contends that the Jamabandi for the year 1955-56 bears witness of the fact that the defendants had stepped into the shows of Duni Chand deceased. According to the learned counsel for the appellants, the version of the plaintiffs that 'he defendants used to give Batia in lieu of their cultivating possession over the suit land is without any basis. No document has been adduced in evidence to corroborate the version of the plaintiffs. In support of his contention Mr. Hooda has placed reliance on Bondar Singh v. Nihal Singh, 2003(2) R.C.R. (Civil) 222 (S.C.) and Parsinni (Dead) by LRs. v. Sukhi, 1993(3) R.R.R. 618 (S.C.). Further contention raised by Mr. Hooda is that the suit of the plaintiff was hopelessly barred by time. He contends that the defendants remained in possession of the suit land ever since the death of Duni Chand deceased. Anyhow, they legally perfected their adverse possession in the year 1953 when mutation was sanctioned in their favour. Since the year 1953, the plaintiffs kept silent and they filed the present suit only in the year 1973, which is barred by limitation.
5. The contentions raised by Mr. Hooda have been controverted by Mr. V.K.Jain, learned Senior Advocate, who put in appearance on behalf of the plaintiff-respondents. He contends that mere possession of the defendants does not mean that the same was adverse to the true owner i.e. the plaintiffs. He contends that the sanction of the mutation at the back of the plaintiffs, who were married in a different village and were residing there since their marriage, is of no meaning. He contends that the mutation (Ex.D3) was sanctioned in favour of the defendants without issuing any notice to them. In the absence of notice, the plaintiffs could not be deemed to have the knowledge about the mutation in favour of the defendants. His further contention is that the possession of a co-sharer cannot be considered adverse qua the other co-sharer. The mutation does not create title in favour of the defendant-appellants. On the point of limitation, it has been contended by Mr. Jain that in the present case the date of limitation is to be considered from the date of knowledge and not from the date of sanction of mutation in favour of the defendants as after their marriage the plaintiffs had been residing in their matrimonial home in a different village. In support of his contention, Mr. Jain has placed reliance on a plethora of authorities of the Supreme Court as well as of this Court.
6. I have heard the learned counsel for the parties and have gone through the evidence adduced on record as well the case law cited by the counsel for the parties.
7. In the present case, the defendants have claimed their ownership by way of alleged adverse possession since the year 1953, which remained uninterrupted and was to the knowledge of the plaintiffs and also on the ground that the suit filed by the plaintiffs was hopelessly beyond limitation. Even in his cross-examination Defendant No. 18 Mod has stated that Khata of Duni Chand was never joint with the defendants. However, in para No. 5 of the plaint, it was specifically alleged by the plaintiffs that he defendants and their predecessors-in-interest were co-sharers in some portion of the land left behind by Duni Chand deceased. After the death of Duni Chand, the defendants were given possession of the entire land of Duni Chand deceased by the plaintiffs for the purpose of cultivation and the defendants used to pay Batai to them. In the written statement filed by the defendants, the version of the plaintiffs has not specifically been denied. There is no specific denial on the part of the defendants that they or their predecessors-in interest were not co-sharers or that the plaintiffs never gave the entire suit land on Batai to them or that they never paid any Batai to the plaintiffs in lieu of the land cultivated by them. Smt. Kesar plaintiff in her statement as PW 4 had specifically stated that they had a joint Khata with the defendants as they were their collaterals from father's side. As there is no specific denial to the version of the plaintiffs that the defendants and their predecessors-in-interest were cosharers on some portion of the suit land with Duni Chand deceased, the same would be deemed to have been admitted by the defendants. Even during cross examination, it was not put to her that their Khata was not joint with the defendants. The only suggestion put to her was that the defendants were cultivating the suit land as owners without payment of Batai. Thus, since there is no specific denial on part of the defendants to the allegation of the plaintiffs, in these circumstances it would be presumed that the defendants or their predecessors-in-interest and Duni Chand deceased were cosharers on a part of the suit land. Merely on the statement of one of the defendants, namely, Moti, that the Khata of Duni Chand deceased was never joint with them, it cannot be held that Duni Chand deceased and the defendants were not co-sharers on a part of the suit land. Furthermore, a perusal of the Jamabandi (Ex.P2) relating to the year 1950-51 shows that on Khewat No. 273 Khatauni Nos.1133, 1134, 1136, 1137, 1138, 1139, 1140, Khasra Nos.2063, 2064, 2065, 2066, 2067, 2068, 2046, 2047, 2051 and 2059, the defendants or their predecessors-in-interest have been shown to be the co-sharers on the said land along with Duni Chand. Thus, there is enough documentary and oral evidence on the record to hold that Duni Chand deceased and the defendants or their predecessor-in-interest were co-sharers on some portion of the suit land. By now it is well settled that the possession of a co-sharer, cannot be taken as adverse to the ownership rights of the other co-sharer.
8. Still further, a perusal of the mutation (Ex.D3), on the basis of which the defendants claim their ownership, would show that it was got sanctioned on the basis of the oral pedigree table given by Nand Ram and Rai Sahib Ram Singh without issuing any notice to the plaintiffs. It was never brought to the notice of the authorities concerned that Smt. Kesar and Smt. Jehro were the sisters of Duni Chand deceased and were residing in their matrimonial home in some different village. In Mt. Bhago v. Deep Chand Harphul and Ors., A.I.R. 1964 Punjab 187, it was held by a Division Bench of this Court that if the possession has been obtained on a misrepresentation and the legal for malities relating to mutation proceedings have not been fully complied with on account of misrepresentation, then the law would not help the wrongdoer. It was further held by their Lordships that mere 'sanction of mutation at widow's back without any notice to her clearly cannot by itself establish that starting point of adverse possession.' Thus, the assertion of the defendant-appellants that they had become owners by adverse possession, the starting point of which is the date of mutation sanctioned in their favour in the year 1953 has no basis whatsoever. In that very authority it was also held by their Lordships of the Division Bench that 'mere possession, however long, does not necessarily mean that it is adverse to the true owner. Adverse possession really means a hostile possession which is expressly and impliedly in denial of the title of the true owners, and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner.' In the present case, as already mentioned above, plaintiffs were never given any notice and were never made aware of the sanction of the mutation in favour of the defendants or their predecessors-in-interest. Thus, it cannot be considered as adverse to the ownership rights of the plaintiff-respondents.
9. In Md. Mohammad Ali (Dead) by LRs v. Jagdish Kalia and Ors., 2004(1) Supreme Court Cases 271, it has been held by their Lordships of the Supreme Court that possession of property by a co-sharer shall be deemed to be possession on behalf of other co-sharers unless there is clear ouster by denying the title of the other co-sharers. Mere long and continuous possession by itself is not enough to prove the adverse possession. 'Plea of ouster has to be raised and proved.' In the present case there is no clear ouster of the plaintiffs on the part of the defendants or their predecessor-in-interest. It is admitted position that the plaintiffs were never given any notice before getting the mutation sanctioned in favour of the defendants or their predecessors-in-interest. It is the case of the plaintiffs that the defendants used to pay them the Batai in lieu of the suit land being cultivated by them on their behalf. The mutation (Ex.D3) came to their notice only when the defendants refused to pay them the Batai in the year 1972. Thus, I am of the considered opinion that the defendant-appellants have failed to prove their ownership by way of adverse possession. The facts of the authorities cited by the learned counsel appearing on behalf of the appellants are not applicable to the facts of the present case.
10. So as to the question of limitation is concerned, once it is held that the mutation (Ex.D3) came to the notice of the plaintiffs only in the year 1972, the starting point of counting limitation would be the date of knowledge of the plaintiff. In the present case as the mutation was got sanctioned by the defendants or their predecessors-in-interest in their favour in the absence of the plaintiffs and also without issuing any notice to them, the limitation for filing the suit would start only with effect from the year 1972 and not earlier to that. As the present suit was filed in the year 1973, it cannot be considered as barred by limitation by any stretch of imagination.
11. Last but not the least, C.M. No.l283-C of 2002 for substitution of the respondents has been filed in the present case. In that application it has been mentioned that Mangta and Churia Ram, sons of Dhanpat (deceased), defendant-appellant No. l, have purchased land measuring 135 Kanals 10 Marlas out of the suit land from the legal representatives of Smt. Kesar (deceased), plaintiff-respondent No.l, vide registered sale deed No. 1594 dated 1.1.2002. Though notice of the application was issued, but no reply to controvert the same has been filed. Consequently, the C.M. was allowed and the purchasers were impleaded as respondents in place of the legal representatives of Smt. Kesar, plaintiff-respondent. In this view of the matter, the Court can safely come to the conclusion that the defendants have virtually admitted the ownership of the plaintiffs over the suit property by purchasing a part of the same from the legal representatives of the plaintiffs.
Consequently, I do not find any infirmity in the well-reasoned judgment dated 21.10.1982 passed by the Additional District Judge, Kurukshetra, and I uphold the same.
Resultantly, there is no merit in this appeal. It is, accordingly, dismissed. However, there shall be no order as to costs. Stay granted by this Court vide order dated 25.7.1983 stands vacated.