RAM LAL AND OTHERS Vs. CHETU AND OTHERS

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by Chetu respondent on 18 -1 -1947 for possession of agricultural land measuring 24 bighas and 6 biswas on the basis of his title and alleging the defendants as mere trespassers. In the plaint it was further stated that Chetu plaintiff and one Telu owned one -half and one -fourth shares respectively in a joint Khata which lay in mortgage with Rajaram. On the death of Telu, Chetu acquired his rights as well and became owner of three fourth share in the land. On 4 -1 -1977, Daulat Ram and Narain Das sons of Raja Ram transferred their mortgagee -rights by a registered deed to Chhajju of Ambala. Since Chhajju was not a resident of the State, mutation in his favour was not sanctioned and in the revenue records, therefore, he and after his death his son Ram Chand (defendant 2) continued to be mentioned as tenant of the original mortgagee. On 7 -12 -1982. Chetu further mortgaged the land to Benarsi Das and others (defendants 3) giving them the right to redeem the prior mortgage. Thereafter Chetu himself paid off the first and second mortgagees and got the land redeemed from them. The land in the meantime was taken possession of by Ha mama father of Ramlal and others (defendants 1) who after the death of their father refused to deliver possession of it to the plaintiff. This gave rise to the present suit. The mortgagees (defendants 2 and 3) accepted the plaintiff's claim but the suit was resisted by Ramlal and others (defendants 1) on the ground that they were in fact the owners of the land and were in possession of it as such for more than 25 years. On these pleadings, the following two issues were framed:

(2.) WHETHER the suit is within limitation? O.P.

(3.) SHRI Lachhman Das the learned counsel for the respondents, has taken me through the entire evidence on record and contends that the defendants had not succeeded in proving that their possession was adverse even to the mortgagee or that they, by their long possession, had acquired the mortgagee rights. A perusal of the relevant entries in the revenue records makes it clear that possession of the defendants initially started somewhere in the year 1987 as tenants -at -will of Ram Chand son of Chhajju (defendant 2). As already observed, mutation of the mortgage in favour of Chhajju could not be sanctioned because he was not a resident of the State. He and after his death his son Ram Chand were, therefore, shown as occupying the land as tenants of the original mortgagees, Daulat Ram and Narain Das. The Jamabandi of 1987 shows that Harnama, father of defendants 1 cultivated the land as a tenant -at -will of Ram Chand and was liable to pay him the Batai. In the next Jamabandi of 1991, Harnama was again described as a tenant -at -will of one Deepa who himself was a tenant of Ram Chand. The entries further make it clear that Harnama paid a share of the produce to Dipa while the latter in his turn paid Rs. 45/ - as fixed yearly rent to Ram Chand. Disputes regarding payment of rent appear to have arisen some time after 1992 and mention of this fact was made for the first time in the Jamabandi of 1995. A similar entry that the tenant disputed his liability to pay any 'lagan' to the landlord is found to have been made in the next Jamabandi of 1999. It was for the rent of this period that Ram Chand brought a suit against the present appellants in the year 1997. That suit was dismissed by Tehsildar Patiala on 30 -8 -2001 on the ground that entries in the revenue records of the said period did not disclose that the defendants were holding the land as tenants -at -will under the plaintiff. The only conclusion that can be drawn from the documentary evidence brought on record by the parties is that possession of Harnama, father of defendants 1. started as a tenant in the year 1987. He continued paying rent to the mortgagee upto the year 1992. It was some time thereafter that he stopped paying anything by way of rent to the mortgagee and for that the latter had to bring a suit in the revenue Court. Its dismissal in 2001 can only prove that the relationship of landlord and tenant did not subsist during those years, but it cannot be regarded as proof of the fact that the possession of the defendants from the very start was adverse to the mortgagee or that no rent was ever paid by the defendants. For that we have still to depend upon the entries in the revenue records of that period. The possession of a tenant is permissive and unless he can prove that he had disclaimed the title of his landlord openly and to his knowledge for more than 12 years he could not claim adverse possession against the landlord. The mere fact that he stopped paying rent at some subsequent time would not be enough to show that he had started possessing adversely to his landlord. Even if their possession be regarded as adverse from the time the defendants stopped paying rent that would be short of the prescribed period. As already observed, the defendants appear to have stopped payment in the year 1993 and the present suit was brought in 2003. My own view, therefore is that the defendants had not succeeded in proving their adverse possession even against the mortgagees for the prescribed period and cannot thus be said to have acquired mortgagee -rights.