JAGIR SINGH Vs. RAM KAUR

JUDGEMENT

(1.) Can adverse possession be perfected into a title howsoever long it may be, if proceedings for restoration of possession by a true owner are pending for all the 12 years or major part thereof, is the only question that requires to be determined in this appeal filed by unsuccessful plaintiff.

(2.) Shorn of all unnecessary details, the facts which need to be noticed for adjudicating the question posed above would go to show that the plaintiff came into possession of the suit land in the year 1952 after the death of one Bishna. Mutation of inheritance in his favour was sanctioned on the basis of a Will and, admittedly, the said Will was successfully challenged by rightful owners culminating into judgment and decree passed by the Sub-Judge which was affirmed in appeal on 20th July, 1955. In execution of the decree aforesaid, symbolic possession of 1/3rd share of the total land, and which was the only share of the rightful owners, was delivered. Inasmuch as it was a decree of joint possession and actual possession could be sought only through partition proceedings, the co-owners did resort to said mode of recovery of possession on 27th November, 1957. Somehow or the other, the partition proceedings came to an end only on 12th January, 1972, when actual physical possession was delivered to the defendants.

(3.) The two fold contention of Mr. S. C. Kapoor, learned counsel for the appellant, that the defendants could well take physical possession instead of symbolic possession and that his client was not a party to the partition proceedings is factually incorrect. Once it is so held, the case law cited by the learned counsel would be of no use to his client. It is clear from firm findings of fact recorded by the Courts below that the suit filed by the respondents to secure possession could not entail delivery of physical possession for the reason that Bishna alone was not the owner and on the contrary, there were other co-sharers also, including the father of the plaintiff. The respondents in their suit, reference of which has been given above, could only pray for joint possession. However, even though initially the plaintiff was not arrayed as party to the partition proceedings, he was so impleaded later on after the demise of his father, vide order dated 27th February, 1968.