Preet Ram v. Mange & Ors.

This is plaintiff/appellant's regular second appeal, against the judgment and decree dated 28.8.1984, passed by the learned courts below dismissing the suit filed by the plaintiff/appellant for possession of RSA No.890 of 1985 2 agricultural land. The facts leading to the filing of the suit by the plaintiff was, that one Brahma was the owner of the suit land, who died on 5.2.1977. At the time of his death, he left behind his widow Smt.Bhullan. The plaintiff/appellant was grand son of this couple, through their only alleged daughter Smt.Dhanno. It was the case set up by the plaintiff that after the death of Brahma, suit land was mutated in the name of his widow Bhullan vide mutation No.1263 dated 26.3.1927 to the exclusion of his alleged daughter Dhanno. Smt.Bhullan, thereafter by way of registered gift deed transferred the land in favour of the plaintiff/appellant. It was the case of the plaintiff, that possession was also handed over to him at the time of execution of the gift deed. Mutation in his favour was sanctioned on

7.5.1936. It was, thus, claimed by the plaintiff, that after the gift deed he came into possession of the suit land through tenants. The land measuring 21 Bighas 5 Biswas comprised in Khewat No.446, Khatauni No.1323 was leased out to Ram Sarup, father of defendants No.31 to 34, and one Nanha, father of defendant No.20. Some of the land was Banjar and plaintiff claimed that this land remained in possession of Brahma, and after the death of Brahma in possession of Bhullan and thereafter in possession of the plaintiff/appellant. It was the pleaded case of the plaintiff, that predecessors-in- interest of defendants were inducted as tenants-at-will. Remaining land which was in possession of the plaintiff, was forcibly taken away by the defendants about 3-4 years prior to filing of the suit. It was also pleaded that RSA No.890 of 1985 3 the agreement to sell dated 6.6.1975, was executed in favour of the defendants. On the pleaded facts, it was claimed that the defendants were estopped from denying the title of the land in dispute. Plaintiff claimed possession on the ground, that as the defendants denied his title, therefore, they were liable to be evicted. Written statement was filed, wherein it was pleaded, that after the death of Brahma land had gone to Bhullan as her life estate. Bhullan entered in Kareva marriage with Ram Sarup, a collateral of Brahma. This way Bhullan relinquished her rights, of life estate, in the land owned by Brahma. This land was divided into 8 shares of collaterals of Brahma. They claimed, that since then these collaterals either themselves, or through their predecessors-in-interest were in possession as owners. Execution of the gift deed, was denied and it was pleaded that Smt.Bhullan had no right to gift the property. It was pleaded by the defendants, that agreement dated 6.6.1975 was executed on the misrepresentation of the plaintiff. In the alternative, defendants claimed to have become owners by way of adverse possession. The learned trial court on appreciation of evidence held that gift deed in favour of the plaintiff/appellant, was null and void as Smt.Bhullan had no right to gift the property, as she was only a limited owner. However, learned trial court decided issue of adverse possession in favour of the defendant/respondents by recording as under:- “21. Now comes up the question of the nature of their possession. The evidence and the circumstances on record RSA No.890 of 1985 4 show that their possession was that of owners. Their ownership is based on two factors. One factor has already been discussed under issues No.1, 5 and 6. They were reversioners of Brahma. After the death of Brahma, Smt.Bhullan had acquired life estate in this land. After Smt.Bhullan entered into kareva marriage with Ram Sarup, she forfeited her life estate in the land and this land had to go to the reversioners. The present defendants and their predecessor-in-interest being collateral of Brahma were reversioners. They acquired reversionary rights. They became owners on the basis of their this reversionary rights.

22. The second point which forms the basis of their ownership is their adverse possession. This is pleaded in the alternative. The defendant have also been able to prove that they have been in adverse possession for over 30 years. Certain points which have been argued upon to prove the adverse possession, are discussed as under:- (i) The plaintiff has claimed that he had been getting batai from the defendants. But he has failed to bring on record any evidence to show that he ever got any batai. No witness from village Ballah where the land is situated, has been examined by the plaintiff. Plaintiff has not been able to state as to for how much period he continued getting and at what shares though he has RSA No.890 of 1985 5 stated that he used to get 1/4th share, then 1/3rd share and then ½ share. (ii) It appears that the plaintiff had not even seen this land, much less than to be ever in possession thereof. He was asked specifically about the “warebandi” regarding of out outlet and about the boundaries i.e. whose land is situated around this land in dispute. He has not been able to give any satisfactory reply to these questions. (iii) The consolation of holdings took place and the old land was exchanged with the new land. In the natural course of things, the plaintiff should have had in his possession the copy of that record of consolidation, he replied in the negative. He was expected to pay the subscription for the consolidation. He has stated that he did not pay the fees to the consolidation authorities, but paid it to the defendants who might have made the payment onward to the authorities. This way the statement of the plaintiff appears to be a lie on the face of it. (iv) The land revenue is being paid by the defendants. The plaintiff was asked if he ever paid the land revenue. He has stated that he used to pay it to the defendants and then the defendants used to pay to the State. Here also, he has stated such a lie which is apparent on the face of RSA No.890 of 1985 6 it. (v) Admittedly, some of the land was under mortgage. Admittedly it is the defendant who got that land redeemed. Had the plaintiff been left with any interest in this land, then the land would have been got redeemed by the plaintiff and not by the defendants.

23. All these things show that the defendants have been cultivating and using the land as owners openly, adversely and without any disturbance and in the knowledge of the plaintiff. Hence, they have become owners by way of adverse possession.

24. Since the plea of the defendants to the effect that they acquired the title by way of adverse possession has been upheld, the suit of the plaintiff is beyond limitation. All these issues are therefore, decided in favour of the defendants and against the plaintiff.” Suit was dismissed. In appeal, findings recorded by the learned trial court were affirmed, and the appeal was dismissed. Mr.J.L.Malhotra, learned counsel for the appellant, contends that this appeal raises the following substantial questions of law for consideration by this court:

1. Whether in view of the findings recorded by the learned RSA No.890 of 1985 7 courts below holding the gift deed to be invalid, the property was liable to revert back to Smt. Bhullan as life estate which matured into full ownership right after coming into force Hindu Succession Act?

2. Whether the marriage after the death of her husband, Brahma deprived her of right to inherit the property of her husband? In support of the substantial questions of law, referred to above, learned counsel appearing on behalf of the appellant, vehemently contended, that once it was proved that Smt. Bhullan had inherited the property as life estate and gifted it to the plaintiff/appellant. On gift deed being declared illegal, null and void, the property was to be revert back to Smt. Bhullan, and keeping in view the fact that she continued to live after coming into force Hindu Succession Act, she became absolute owner of the property. Therefore, defendants had no reversionary right or interest left in the suit property. It was also the contention of the learned counsel for the appellant, that in the present case learned courts below completely ignored the fact, that no evidence was led to prove remarriage of Smt.Bhullan by Kareva. There is no custom in the Brahmins accepting Kareva marriage. The contention of the learned counsel for the appellant, therefore, was that the learned courts below wrongly held, that Smt.Bhullan ceased to have any interest in the property which was to revert back to reversioners. The RSA No.890 of 1985 8 judgment and decree being perverse was liable to be set aside. On consideration, I find no force in these contentions, as the substantial questions of law framed are merely academic in nature and do not arise for consideration in this appeal. Reading of the finding of the learned courts below, referred to above, would show that the plaintiff/appellant was non suited in view of the fact that the defendant/respondents had perfected their title by way of adverse possession. In view of concurrent findings of fact, the substantial questions of law do not arise in this case. Learned courts below on appreciation of evidence have recorded a concurrent finding of fact, that the defendant/respondents proved their possession to be adverse and hostile over the land in suit, for more than 30 years. It cannot be said that the findings recorded, are not based on evidence or are result of misreading of evidence. Learned courts below have given good reasons to hold that the defendants had perfected their title by way of adverse possession. The learned counsel for the appellant was unable to challenge the concurrent finding of fact. Concurrent findings of fact recorded, on appreciation of evidence, are not open to challenge in the exercise of jurisdiction under section 100 of the Code of Civil Procedure. No merit. Dismissed.

2.03.2010 (Vinod K.Sharma) Judge