SEWA SINGH Vs. JOGINDER SINGH

JUDGEMENT

(1.) This is defendant's second appeal against whom suit for possession has been decreed by both the Courts below. It is the common case of the parties that both plaintiffs as well as the defendant are the heirs of common ancestor Sher Singh son of Sujan Singh. The family owned land in two villages known as village Nagri (Gobindpura) and village Nagra, which are adjacent to each other. Sher Singh had fours sons, Atra, Dhiana, Lal and Kahna. Plaintiffs are the heirs from Atra, whereas defendants are the heirs of Kahna. Plaintiff's father Mehar Singh died on 15th September, 1968. After his death mutation was sanctioned in favour of the plaintiffs on 31.7.1972, vide mutation order Exhibit P-2. The plaintiffs filed the present suit for possession in November, 1972, alleging that their father Mehar Singh was in possession of the suit land during his life time, after his death the defendants have taken forcible possession of the suit land and, therefore, on the basis of their title they are entitled to the possession thereof. In the written statement filed on behalf of the defendant-appellant it was pleaded that Mehar Singh was not the owner of the suit land as alleged. It was stated that forefathers of the parties had exchanged their land more than 60 years ago, as a result of which the land in dispute had fallen to the share of the defendant's predecessor-in-interest. It was pleaded in the alternative that in any case the defendant has become owner of the suit land through adverse possession. The plaintiffs never asserted their claim over the suit land nor their father Mehar Singh ever contested the same. The trial Court came to the conclusion that since the defendant has been shown in possession of the disputed land as 'Ghair Maurusi Bawaja Exchange' without any exchange deed having been executed between the parties and, therefore, no valid title could be passed to the defendant in the suit land through an oral exchange. It was further found that although the possession of the defendant is not forcible, but is still illegal and it is without a valid title. On the question of adverse possession, it was held that the defendant had never become owner of the land in dispute by way of adverse possession. In view of these findings the plaintiff's suit was decreed. In appeal, the learned Additional District Judge affirmed the said finding of the trial Court and thus maintained the decree passed in favour of plaintiffs. Dissatisfied with the same the defendant has filed the second appeal in this Court.

(2.) The main controversy between the parties to be determined by this Court is whether by virtue of the entries in the Jamabandis Exhibits D-14 to D-16, for the year 1959 to 1970 and Khasra Girdawari Exhibit D-19 from 1970 to 1973 the defendant-appellant can be presumed to be in adverse possession and this possession of his has ripened into ownership.

(3.) Learned counsel for the appellant contended that from the documentary evidence on the record it has been amply proved that the ancestors of the parties owned land in two villages, i.e., village Nagri (Gobindpura) and village Nagra. The defendant after the exchange had no land in village Nagri and in lieu thereof got the land in village Nagra and since then he is continuing in possession as such and the entries to that effect in the revenue record, i.e., 'Ghair Maurusi Bawaja Exchange' duly prove the contention of the defendant. These entries continue from the year 1959, whereas the suit was filed in November, 1972, i.e., more than 12 years thereafter and thus the defendant has acquired ownership by adverse possession as well. According to the learned counsel, in Punjab oral exchange was permissible as Section 118 of the Transfer of Property Act was not made applicable to the Punjab State as such. In support of this contention reference was made Hardit Singh v. Gulzara Singh and another, 1973 PunLJ 329 and Sardara Singh and another v. Harbhajan Singh and others, 1974 PunLJ 341. Thus, argued the learned counsel, the approach of the Courts below in this behalf was wrong, illegal and misconceived. It was also pointed out that from the entries in the revenue record except one Khasra number, i.e. 887 on the remaining land the defendant has been in possession without payment of any Lagan because of the exchange. Even the entries in the Khasra Girdawari Exhibit P-6 for the years 1959 to 63, wherein the cultivation was shown that of Mehar Singh, was not accepted by the Courts below in view of the entries in the Jamabandi for that period. In this way the defendant continued to be in possession of the suit land for more than twelve years and thus has become its owner by adverse possession. It was further contended that according to the plaintiffs they were dispossessed after the death of their father Mehar Singh, whereas there is no evidence on the record to show that Mehar Singh was ever in possession of the suit land or that he ever made any claim to the same.