THOPPI Vs. PARA RAM

JUDGEMENT

(1.) The resp. Paras Ram sued the applts. for joint possession ofone -fourth share in 926 kanals and 8 marlas of land, alleged to belong to the parties as proprietors, and in15 kanals and 18 marlas as occupancy tenants. The applts. contested the resp's claim on two grounds, namely: (1) That the plff. -resp. is not the son of Mathra through whom he claims his title and (2) that the defts. -appllts. have been in adverse possession of the 1/4th share claimed by the plff. for more than 12 years and have perfected their title by prescription, the plff.resp's right having been extinguished in consequence. The plff's suit was decreed by the Ct. of first instance, Sub J., Udhampur, but on appeal by the defts. the Dist. J. of Jammu dismissed ifc as regards the proprietary part of the land in dispute. A second appeal by the plff, to the High Ct. was successful and the decree of the Ct. of first instance was restored. The defts. have appealed to His Highness, challenging the judgment and decree passed by the High Ct.

(2.) IT is common ground before the Board that the land in dispute belonged to four brothers, including Mathra, in equal shares. In 1983, Mathra died and the resp's. name was recorded in the revenue register as his heir and successor. It does not appear to have been then contended by the other co -sharers, as is now done, that the plff. was not the son of Mathra. All the Cts. have found in this case that the plff. -resp. is the son of Mathra and succeeded to the latter's 1/4th share in the property in dispute. This finding is nob impugned by the applts. who now contest the plff's claim on the sole ground of adverse possession.

(3.) THE learned advocate for the applt. reiterated before the Board the contention which had been repelled by the High Court. Reliance has been placed on Varada Pillai v. Jeevarathanammal, 43 Mad. 244; (46 Ind. App. 285); Maung Po Hiding v. Po Nyi, A. I. R. (2 8) 1941 Rang, 111 Sain, Gauhar Ali v. Khadim Hussan, 5 J. and K. L. R. 152. In the first of these cases their Lordships of the P. C. held that the recitals in in an invalid gift may be referred to as explaining the nature and character of the possession thenceforth held by the donee. The other two cases, referred to, merely follow the proposition laid down by the P. C. An examination of the judgment in Varda Pillai v. Jeevarathnammal, 43 Mad. 244, shows (at p. 249) that the donor had parted with actual possession of the property and the donee took possession thereof holding the same for more than twelve years on the assertion that he was its full and exclusive owner under the gift. In the present case, the circumstances are quite different. The plff. -resp., who is described by one of the deft's witnesses as a lad of 17 or 18 at the time of the gift (mentioned in the Stamp Vendor's endorsement as aged 20) put his thumb mark on the deed of gift being unable to sign his name. The deed was presented for registration by the donees. The donor does not appear to have ever presented himself before the Sub -Registrar. The donees too did nothing, after presentation, to obtain registration of the deed. Both parties treated it as as dead letter, as in fact ifc has remained since. The circumstances in which the donor's thumb impression was obtained on the deed of gift, have not been investigated. It should, however, be noted that the plff. has not pleaded either fraud or undue influence. The circumstances already refd. fco unmistakable point to the conclusion that the transaction of gift was not completed and the par ties to it abandoned all idea of the gift taking effect. In other words, they agreed to maintain the status quo. The assertion of adverse title by the deffcs. is clearly negatived by their conduct and the principle underlying the cases, above referred to, can have no application. The character of the defts' possession, therefore remained the same as it was before the contemplated gift. In this view the pltf. should be deemed to have been in constructive possession through his uncles and nothing has happened which could extinguish his title.