PARSINNI Vs. SUKHI

JUDGEMENT

(1.) The appellants/defendants appeal by special leave arises against the judgment and decree of the Punjab and Haryana High Court in Regular Second Appeal No. 1822 of 1973, dated Sept. 21, 1982. The respondents filed a suit for declaration of title to and for possession of 53 kanals 12 marlas from the appellants. The trial court in File No. 40 dismissed the suit. The Addl. District Judge, Barnala reversed the decree of the trial court and decreed the suit in Civil Appeal No. 121 of 1965 by judgment and decree dated November 28, 1973. The High Court confirmed the appellate decree. One Wazira Singh died surviving three sons Sukhi, Surjan and Sarwan through his first wife, Mania Singh son and Parsinni and Chinto two minor daughters through his second wife. Wazira had died on 5-11-1984 B. K. Parsinni is the 1st defendant and Chinto died leaving behind her children defendants Nos. 2 to 5. From the evidence it would be clear that after the death of Wazira, there was a division of the properties by metes and bounds and 53 kanals 12 marlas were left in the possession of Parsinni and Chinto for their enjoyment. The Mutation No. 1722 Ex. P-8 on 10-2-85 B. K. discloses that they shall remain in possession and enjoyment till their marriage or death whichever is earlier. Their marriage took place between 1990-91 to 1994-99 B. K. It is not in dispute that even thereafter for well over 30 years, the appellants continued to remain in possession and enjoyment as owners to the exclusion of the respondents Sukhi and other heirs asserted their title for the first time in 1963 by filing the suit for declaration that they are the owners of 135 kanals 6 marlas including 53 kanals 12 marlas, situated in Bihla village. We are concerned only with 53 kanals and 12 marlas in this appeal.

(2.) It is the case of the respondents that 53 kanals 12 marlas continued to remain in their possession and enjoyment. Parsinni and Chinto were never in possession and enjoyment. For the first time they came across, after a suit filed by them in the court of the Sub-Collector against the tenants for recovery of the rents and decree thereon was passed in their favour, that they are asserting their rights as owners of the property. Therefore, the above suit initially was filed for declaration of the title to and for injunction and later converted to relief of possession.

(3.) The trial court found that ever since the demise of Wazira the appellants remained in possession and enjoyment. After the suit they became separated. They remained in possession as owners and they perfected their title by prescription, after their marriage for having been in possession for more than 30 years. The suit was also held to have been barred by limitation. Accordingly it dismissed the suit. The appellate court reversed the decree holding that the revenue entries disclose that the appellants remained in possession as owners along with their brothers and no specific share was given. Therefore, they did not acquire any separate right. The respondents claimed possession and proprietary right therein and entries in revenue records do not disclose having been lost their title for more than 12 years. Therefore, they became owners of the land and remained to be owners and possession being not adverse the appellants did not acquire title by prescription. The High Court without adverting to the question of adverse possession, confirmed the appellate decree.