T.U. Mehta, C.J.
1. This Letters Patent Appeal arises out of the second appeal No. 145 of 1967 which has been decided by a Single Judge of the High Court of Delhi, Himachal Pradesh Bench, (1972) 2 Sim LJ 366 (Delhi) (H.P. Bench) against the present appellant Smt. Sumendra Devi. The appeal is filed on a certificate of fitness having been given by the learned Single Judge who has decided the second appeal.
2. The facts of the case are that the appellant Sumendra Devi filed a civil suit in the Court of Sub Judge, Nurpur on 14-8-1963 for a decree of joint possession of the disputed land claiming one-half share in the land as owner. Her name as co-owner wag entered in the jamabandi after the death of her father Larjoo. The appellant's case is that soon after her marriage the had gone to reside at her husband's house In another village and for some years the respondents and their predecessors went on giving her share in the produce from the land, but thereafter they stopped the same. According to the appellant, she came to know in the year 1963 by reference to Jamabandi for the year 1956-57 that her name as the co-owner of the land was removed from the jamabandi and the land stood mutated only in the name of the respondents Nos. 1 and 2. She also came to know that some time before 1956-57 a portion of the land was transferred by the respondents 1 and 2 in favour of the respondent No. 3. It is on these allegations that she has filed the present suit for the joint possession of the land claiming one-half share in the land which is mutated in the names of respondents Nos. 1 and 2.
3. The pedigree which is proved in the case shows that there was one Ram Chander who was the original ancestor. This Ram Chander had two sons named Budhu and Parsa. Budhu's line became extinct with the death of his grand-son Dattu. We are in this matter concerned with the line of Parsa, the second son of Ram Chander. This Parsa had two sons named Tara & Tika. Tara's son was Larjoo who was the father of the present appellant Sumendra Devi. Tika, the other son of Parsa had three sons named Inder, Govind and Damodar. The respondents Nos. 1 and 2 are the sons of Damodar'g daughter. The evidence reveals that Damodar had two wives, named Malto and Makno.
4. It is found from the evidence recorded In the case that after the death of the appellant's father, Larjoo, the appellant's name was mutated in the revenue, record as co-owner of the land. Thereafter the appellant married and left the village at a very young age. Up to 1930 A. D. her whereabouts were not known. Therefore, Malto and Makno, the two widows of Damodar applied to the revenue authorities that the whereabouts of the present appellant were not known for more than seven years and, therefore, her name should be struck off from the revenue record. It transpires from the appellant's own evidence that thereafter proclamation were issued in the village and some enquiry was made as a result of which the concerned revenue officer came to the conclusion that whereabouts of the appellant were not known for more than the last seven yean. She was therefore, presumed to havedied and her name was struck off from the revenue record. Thus since 1930 A. D. the disputed land stands in the name of Malto and Makno. the two widows of Damodar, and thereafter in the names of respondents Nos. 1 and 2 who, as stated above, are daughter's sons of Damodar.
5. The respondents have challenged the claim of the appellant-plaintiff that she is the daughter of Larjoo. They have also resisted the plaintiff's suit on the ground of limitation claiming that since last more than 30 yean before the institution of the suit they have been enjoying the possession of the land as owners adversely to the present appellant. It is contended that during the course of these more than 30 years the appellant-plaintiff has not claimed any share in the produce derived from the land and the adverse possession of the respondents NOB. 1 and 2 has been continuous, open and peaceful.
6. The learned trial Judge came to the conclusion that the appellant was proved to be the daughter of Larjoo, that she had no notice or knowledge about the mutation which took place in favour of the respondents Nos. 1 and 2 in the year 1930 and that therefore, there could be no ouster of the appellant from the joint ownership of the land. The learned trial Judge, therefore, granted the decree in favour of the appellant as prayed for by her.
7. When the appeal was taken before the Senior Sub Judge, the only question which was contended before him was about the limitation. The learned Senior Sub Judge held that mutation which took place in the year 1930 was sufficient evidence of ouster of the present appellant and since the evidence established that during the more than 30 years' period before the institution of the suit, the appellant Sumendra Devi has neither enjoyed nor claimed any share in the produce, her suit was barred by limitation. He accordingly set aside the decree passed by the trial court and allowed the appeal.
8. Against this, the present appellant preferred second appeal No. 145 of 1967 in the High Court, The appeal has been disposed of by Ansari, J. of Delhi High Court, Himachal Bench, on 13-3-1970. (1972) 2 Sim LJ 366 (Delhi) (Him. Pra. Bench)It is evident from the judgment recorded by the learned Single Judge that at the time of hearing, following points were not disputed :--
(1) that the appellant was Larjoo's daughter and that originally she was entitled to a joint one-half share in the suit land and that her name was also entered in the revenue records in the jamabandi for the year 1917-18 as co-sharer in respect of the suit land;
(2) that the appellant left the village at the age of 18 years i.e. in about the year 1912 and did not return to the village at any time till 1960 (tic 1963), the year in which she actually filed the suit;
(3) that the appellant's name was removed from the revenue records in 1930 as a co-sharer and the name of the predecessor-in-title of the respondents was entered as the sole owner of the suit land; and
(4) that the appellant did not participate in the profits of the land for more than 30 years prior to the filing of the suit by her.
The judgment of the learned Single Judge shows that it was on these undisputed facts that the question which arose for his consideration was whether the appellant's claim to a joint possession of the suit land was barred by limitation. The learned Single Judge has come to the conclusion that it was barred by limitation inasmuch as the change in the mutation which took place in the year 1930 was made openly and after there was a proclamation in the village. Therefore, there was an open adverse possession of title ever since the year 1930, and since the respondents Not. 1 and 2 were found to be in adverse possession and enjoyment of the land in question, and since at no time from the year 1930 up to the time of the institution of the suit the present appellant has asserted her right to the suit land, there is a complete evidence of ouster. The learned Single Judge rejected the appellant's contention that there would not be any ouster inasmuch as the appellant's name was deleted from the revenue record on the ground that she was not heard of for last seven years. It is against this judgment that this Letters Patent Appeal is preferred.
9. Mrs. P. Malhotra, who appeared on behalf of the appellant, strenuously urged that in case of a joint owner it is always presumed that the other joint owners are possessing and enjoying the land on his behalf and, therefore, the mere fact that the appellant has not participated in the profits of the land for a number of years would not confer any title to the ether co-owners by adverse possession and, therefore, there would be no question of limitation in such cases. By referring to the decision given by the Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, reported in AJR 1957 SC 314, she emphasised that so long as the person who pleads adverse possession does not prove that the other joint owners against whom the adverse possession is claimed had actual knowledge about the assertion of hostile title, the title by adverse possession cannot be said to have been completed because, in such cases, there is no ouster. It was pointed out that since the respondent's case was that the appellant was not heard of since last more than seven years in the year 1930, they have not made any attempt to assert their hostile title, and, therefore, it cannot be held that there was any satisfactory evidence of ouster.
10. In view of these contentions, it is first necessary to consider whether in law, when a person claims title by adverse possession, it is absolutely necessary that the person against whom the adverse possession is claimed must have actual knowledge of the assertion of a hostile title. Now the requirements' of law in cases where adverse possession is; claimed, are that the possession must be adequate in continuity, in publicity, and in the extent to show that it is adverse to competitor. This position in law is so well established that it need not be reinforced by citations. It is true that in several decisions it has been observed that the adverse possession should be to the knowledge of the person against whom the hostile title is asserted. For instance, a Full Bench of the Punjab High Court has observed in Ganda Singh v. Ram Narain, reported in ATR 1959 Punj 147 (FB), that a person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession continued.
In Mohomed Baqar v. Naim-un-Nisa Bibi, reported in AIR 1956 SC 548, the Supreme Court has observed with regard to Article 144 of the Limitation Act, 1908, but the possession of a co-sharer is the possession of all the co-sharers and, therefore, it cannot be adverse to the co-sharers unless there is denial of their rights to their knowledge by the person in possession and exclusion and ouster following thereon for the statutory period. Even in the decision of P. Lakshmi Reddy (supra), on which reliance is placed by the learned Advocate of the appellant, the Supreme Court has observed that it is settled rule of law that as between co-sharers there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.
11. Relying upon these decisions, it was pointed out that, unless it is proved by the respondents, that the change in mutation of the disputed land exclusively in favour of respondents Nos. 1 and 2 and their predecessors. was brought to the knowledge of the appellant, it cannot be believed that the appellant, who was co-owner, was ousted from the land.
12. On perusal of the relevant decisions on the point, we find that though knowledgeof the ousted co-owner would be the best evidence of assertion of the hostile title openly and publicly, the law on the subject does not require that there should be the conveyance of the actual knowledge that hostile title is asserted. What the law requires is that the hostile title should be asserted openly and publicly in such a manner that the co-owner affected can know such hostile assertion if he cares to know the same. In other words, it is the capability of the hostile assertion being known which is contemplated by law. This is the position accepted even by the Supreme Court as we shall presently see.
13. Before touching the observations made by the Supreme Court on this point, it would be first necessary to refer to an early decision of the Privy Council on this subject. This is the decision given in Secretary of State v. Debendra Lal reported in AIR 1934 PC 23 where the limitation was claimed, with reference to certain land, against the State, and on behalf of the Crown a contention, which was exactly the same as raised on behalf of the present appellant in the appeal before us was raised. It was contended before the Privy Council that adverse possession should be shown to have been brought to the knowledge of the Crown. Dealing with this contention the Privy Council has observed as under:--
'The classical requirement is that the possession should be nec vi nec clam nec precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge or the Crown, but in their Lordships' opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice.'
14. This decision of the Privy Council has been referred to by the Supreme Court in the above referred case of P. Lakshmi Reddy (AIR 1957 SC 314) and has been approved. While talking of the legal requirement of adverse possession, the Supreme Court in this case has no doubt referred to the knowledge of the person against whom the adverse title is asserted for the purpose of constituting the ouster, but these observations do not mean that this knowledge should be actual. This would be clear from the following observations made by the Supreme Court in context with its observations as regards knowledge. The necessity of the knowledge does not, says the Supreme Court, 'necessarily mean thatthere must be an express demand by one and denial by the other'.
'There are cases' proceeds the Supreme Court 'which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continue in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title'. The Supreme Court has further observed in this case that 'whether that line of cases is right or wrong need not be considered, but it would be sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevanithnammal, AIR 1919 PC 44 at p. 47 quotes, apparently with the approval, a passage from Culley v. Doe d. Taylerson, (1840) 3 Per & Dav 539 which indicates that such a situation may well lead to an inference of ouster if other circumstances concur.' These observations of the Supreme Court, therefore, made it clear that in order to prove ouster it is not an invariable requirement of law that actual knowledge of the ouster should be conveyed to the co-owner who is ousted.
15. This question has been pointedly considered by a Full Bench off Madras High Court in Palania Pillai v. Amjath Ibrahim, reported in AIR 1942 Mad 622. In this Madras case the question arose whether the possession of a mortgagee becomes adverse to the other members of the family from the moment of his entry into possession or from the date of the ouster to the knowledge of other members of the family. It appears that there were divergent views on this question taken by different Judges of the Madras High Court and, therefore, the following question was referred to a Full Bench of that Court :--
'Where some co-owners usufructuarily mortgage specific items of property held by the members of a Mohomedan family and the mortgagee enters into possession of the mortgaged item under his mortgage deed, is a suit to recover the share therein by other members of the same family barred by Article 144, Limitation Act, at the end of 12 years of such possession or does adverse possession begin as against the other member only from the date of ouster to their knowledge ?'
The opinion of the Full Bench was expressed by teach, C.J. of that High Court who after considering a number of authorities on the subject, observed that for establishing ouster it was sufficient that the possession was overt and without any attempt at concealment so that the person against whom time was running ought, if he exercised due vigilance, to be aware of what was happening. These observations were based on the above referred Privy Council case of Secretary of State v. Debendra Lal (AIR 1934 PC 23). Following are the pertinent observations of the Court in that case in disposing of the reference:--
'When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for hit own benefit the other co-sharers must, unless they deliberately close their eyes, know of what is going on, but if they are 10 regardless of their own interests they must take the consequences.'
In view of these observations the Full Bench answered the first part of the question in the affirmative and the latter part in the negative. Practically the same view is taken by the Full Bench of the Bombay High Court in Bhavrao v. Rakhmin, reported in (1899) ILR 23 Bom 137.
16. In the foregoing portion of this judgment we have preferred to the view taken by the Punjab High Court in Ganda Singh v. Ram Narain (AIR 1959 Punj 147) (FB) (supra) wherein they have referred to the necessity of knowledge to the ousted co-owner about the assertion of hostile title. A Division Bench of Punjab High Court has considered these observations in Mst. Bhago v. Deep Chand, reported in AIR 1964 Punj 187. Dua, I. speaking for the Court has considered the question about the necessity of the accrual of knowledge on the part of the ousted co-owner and has observed as under with regard to the above referred observations of that Court in that Full Bench Decision given in Ganda Singh's case (at p. 192 of AIR 1964 Punj) :--
'May be that reference to knowledge of the possession on the part of the legal claimants has been somewhat loosely or imprecisely stated and what was really meant was that The legal claimants should by due diligence be able to know of the open hostile claim and not that their knowledge must positively be proved. The true ratio of the Full Bench is of course binding on the Bench and must he followed. It is, however, unnecessary in this case to pursue this aspect, for, on either hypothesis this appeal deserves to prevail.' While discussing the question of adverse possession this Division Bench of Punjab High Court has made the following observations which are very pertinent to the contention which is under our consideration (at p. 191): '.......... and in order to constitute adverse possession, the possession proved mast be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and con-tinuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the former's hostile action.'
17. The same view is taken in the Nagpur case of Muraduddin v. Mt. Umraobi, reported in ATR 1933 Nag 27 wherein on the death of a Mohammadan, his sons partitioned the property and entered into the possession of the land inherited from the father to the exclusion of the female heirs. Contention was raised that the female heir, who filed the suit, did not know of her exclusion from her share and that the presumption was that the possession by the sons of the deceased was on behalf of all the co-owners. The Court held that even if the plaintiff did not know of her exclusion, it is quite sufficient that assertion of title by the sons at the time of partition was quite open and hence the presumption above referred to was sufficiently rebutted. The Court further observed that it is sufficient if adverse possession is adequate, continuous and exclusive, that the true owner must be vigilant and that it does not prevent time from running if the true owner could have obtained, but did not actually obtain, knowledge of the adverse possession.
18. Thus on consideration of the case law on the subject we do not find ourselves in a position to accept the contention raised by Mrs. Malhotra on behalf of the appellant that the appellant should have actually known that the respondents Nos. 1 and 2 had asserted their hostile title. Considering the facts of the case we find that before the mutation was changed in the year 1930, it was not changed secretly or in a clandestine manner. The learned single Judge has rightly observed in his judgment that it is in the evidence of (sic) the appellant's name from the revenue record as co-sharer in respect of the suit land, there was a proclamation in the village (sic). The issuance of this proclamation, and the nature of the enquiry which is recorded at the time of the change in mutation in the year 1930, carry sufficient evidence to show that the assertion of hostile title was not secret, but was quite open. Therefore, if the appellant was vigilant enough to visit her village she could have always known that the predecessors of the respondents Nos. 1 and 2, were asserting a title hostile to her. Under the circumstances, it is not possible to say that the assertion of the hostile title by the respondents was secret, and if that be so, even though the predecessors of the respondents Nos. 1 and 2 were co-owners, they can besaid to have ousted the appellant from the year 1930 onwards. The facts, which were not disputed and which are enumerated by the learned single Judge in his judgment, show that right from the year 1930 up to the year 1963 the appellant has not claimed any share in the produce from the disputed land. She is not proved to have paid any land revenue with regard to this land, and she has not received a single farthing from the respondents as her share from the produce of the land. This long period of non-participation in the profits of the land would be a circumstance which would go to establish adverse possession as held in the Bombay case of Gangadhar v. Parashram, reported in (1905) TLR 29 Bom 300 where it is observed that sole possession by one of the tenants in common continuously for a long period without any claim or demand by any person claiming under the other tenants in common, is evidence from which an actual ouster of the other tenant in common may be presumed. In fact, this was the view taken in the English decision in Culley v. Doe d Taylerson, (1840) 3 Per & Dav 539, to which the Supreme Court has made reference in P. Lakshmi Reddy's case (AIR 1957 SC 314) (supra).
19. Mrs. Malhotra referred to decisions given by the Punjab High Court for showing that an ex parte change in the mutation entries without the knowledge of the ousted co-owner would not constitute any evidence of ouster. For this proposition she has mainly put reliance upon Kirori Mal v. Man Bai, reported in 62 Pun LR 499: (AIR I960 Punj 485) and Mst. Bai v. Gurdip Singh, reported in (1976) 78 Pun LR 461. It appears by reference to these decisions that the earlier view taken by Lahore High Court in Amar Singh v. Shiv Datt Kaur, reported in AIR 1937 Lah 890 to the effect that changed entry in mutation is itself evidence of ouster, is rejected. However, we find by reference to these Punjab decisions, upon which reliance is placed, that the High Court of Puniab has taken the view that if change in mutation is obtained in clandestine or surreptitious manner, or by practising fraud, it would not amount to an ouster or an assertion of open hostile title. We find that this principle, even if accepted, would have no application to the facts of the present case, because, the recorded evidence shows that the respondents and their pre-decessors in title have made the assertion of their hostile title quite openly, and have not played any fraud because it is an admitted fact that for more than 30 years before the institution of the suit whereabouts of the plaintiff were not known.
20. We find that the contention of the appellant, that the deletion of the name of theappellant from the revenue record on the ground that she was not known for more than seven years cannot amount to an assertion of hostile title, is rightly rejected by the learned single Judge because even if the name of the appellant was deleted from the revenue record on the ground that she was not heard of foe more than seven years, the fact remains that the predecessors in title of the respondents Nos. 1 and 2 had in fact asserted their hostile title. The grounds on which the hostile title is asserted are not relevant because what is relevant is the fact that the hostile title was actually asserted, and the said assertion was made publicly and openly.
21. Under the circumstances, we find that the learned Single Judge has rightly held that the suit suffers from the bar of limitation. This appeal, therefore, fails and the same is dismissed with costs.