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Badan Bhagta Vs. Fateh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 672 of 1965
Judge
Reported inAIR1968P& H513
ActsLimitation Act, 1963 - Articles 64 and 65
AppellantBadan Bhagta
RespondentFateh and anr.
Appellant Advocate G.C. Mittal and; P.C. Jain, Advs.
Respondent Advocate U.D. Gaur, Adv.
DispositionAppeal dismissed
Cases ReferredGirish Chandra Pal v. Baikuntha Nath
Excerpt:
.....the land subsequent to the consolidation of land holdings in the village had to be ignored because they did so on the basis of a wrong order passed by the consolidation authorities and that the defendant's title in the land had matured by adverse possession extending over a period of more than 12 vears when the present suit was brought this argument was advanced before the first appellate court but failed to impress it......the following issues:1. is the suit barred by res judicata? 2 are the plaintiffs owners of the suit land? 3 is the suit within time? 4. have the plaintiffs abandoned the suit land? if so, when and its effect? 5. has the defendant become owner by adverse possession? 6. relief. issues 1 4 and 5 were decided against the defendant and issues 2 and 3 in favour of the plaintiffs. in the result the suit was decreed with costs. the defendant's appeal in the court of the learned senior subordinate judge failed.3. the facts found and not disputed before me are that the land described in para no. 1 of the plaint was jointly owned by bodan defendant and bhagwana father of the plaintiffs in equal shares. after the death of bhagwana the same was mutatel in favour of his two sons. as a result of.....
Judgment:

P.D. Sharma, J.

1. The facts giving rise to this second appeal against the judgment and decree of the learned Senior Subordinate Judge. Gurgaon briefly stated are as follows. Fateh Singh and Dharam Singh, sons of Bhag-wana. plaintiffs-respondents brought a suit for possession of 73 kanals and 2 marlas of land described in para No. 2 of the plaint which belonged to them and Bodan, defendant-appellant is said to have taken forcible possession of the same in Kharif 1956. The defendant resisted the suit on various grounds.

2. On the pleadings of the parties, the trial Judge framed the following issues:

1. Is the suit barred by res judicata?

2 Are the plaintiffs owners of the suit land?

3 Is the suit within time?

4. Have the plaintiffs abandoned the suit land? If so, when and its effect?

5. Has the defendant become owner by adverse possession?

6. Relief.

Issues 1 4 and 5 were decided against the defendant and issues 2 and 3 in favour of the plaintiffs. In the result the suit was decreed with costs. The defendant's appeal in the Court of the learned Senior Subordinate Judge failed.

3. The facts found and not disputed before me are that the land described in para No. 1 of the plaint was jointly owned by Bodan defendant and Bhagwana father of the plaintiffs in equal shares. After the death of Bhagwana the same was mutatel in favour of his two sons. As a result of the consolidation of land-holdings in the village, the joint Khata was partitioned and the land in dispute described in para No. 2 of the plaint was allotted to the plaintiffs. They remained in possession thereof till 1955-56. It may be stated here that the predecessors-in-interest of the plaintiffs almost 70 years back had left the village on account of scarcity conditions and came to live in another village of Hissar district but the land was continued to be shown as theirs along with the predecessors-in-interest of Bodan, defendant, in the revenue papers. In the year 1950 Bhagwana brought a suit for the recovery of Rs. 200 as rent of his share of the joint land against Bodan which was resisted by him on the ground that he was ir possession thereof as owner, vide Exhibit D. 2. After one year of the plaintiffs' possession of the land in dispute subsequent to the consolidation of land-holdings proceedings in the village, Bodan defendant approached the consolidation authorities for giving him possession of this land on the ground that he had been in occupation all through of the land forming the joint Khata. His plea found favour with the consolidation authorities as a result of which the plaintiffs were made to part with possession of the land somewhere in 1955-56 in favour of the defendant. The present suit was brought on 11th March, 1964. The learned counsel tor the defendant-appellant contended that beyond doubt the defendant openly asserted his hostile title over the land in 1950, that the period during which the plaintiff-respondents occupied the land subsequent to the consolidation of land holdings in the village had to be ignored because they did so on the basis of a wrong order passed by the consolidation authorities and that the defendant's title in the land had matured by adverse possession extending over a period of more than 12 vears when the present suit was brought This argument was advanced before the first appellate Court but failed to impress it. The defendant-appellant in order to establish his title over the land was required to prove that his posses-sion of the land had been open, hostile and continuous for a period of 12 years. There is no doubt that his adverse possession over the land which started somewhere in 1950 was interrupted in 1955-56 for a period of one year and as such it cannot be said that his title in the land had matured by adverse possession extending over a period of 12 years at the time of the institution of the suit. In law it cannot be said that the plaintiffs' possession over the land in the years 1955-56, may be on the basis of erroneous order passed by the consolidation authorities, should be considered as that of the defendant-appellant because the plaintiffs without any doubt were owners thereof. In this connection reference may be made to Girish Chandra Pal v. Baikuntha Nath, 81 Ind Cas 279 = (AIR 1925 Cal 270) which laid down:

'There can be no constructive possession of a wrong-doer during the time that he is not actually in possession and the possession of a true owner, no matter how that possession is obtained, must be considered as rightful possession in law and the period during which the true owner is in posses-sion will enure to his benefit and not to that of the trespasser.'

The defendant-appellant's title in the landhad not matured by adverse possession atthe time the plaintiffs got into possessionof the land subsequent to the consolidationof land-holdings proceedings in the village.Further, the defendant-appellant had alsonot been in adverse possession of theland for more than 12 years from thedate he was delivered back possession of theland by the consolidation authorities to thedate of the institution of the suit. The trialjudge was thus right in decreeing theplaintiffs' suit and the learned Senior Sub-ordinate Judge also correctly dismissed thedefendant's appeal. The present appeal thus fails and is dismissed with costs.


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