1. A suit filed by the plaintiff-appellants for a declaration of title or in the alternative for possession of the land in dispute was dismissed by the trial court and the first appeal filed by the plaintiffs had also remained unsuccessful. The plaintiffs have therefore, come to this Court in second appeal under Section 100 of the code of the Civil Procedure.
2. Dharam Singh, the first cousin of the plaintiff-appellants was a joint owner with the appellants, of the land in dispute. He owned a half share while the other half share belonged to the appellants. Dharam Singh died on August 28, 1944 and the mutation of succession, copy Exhibit P-7 was attested in favour of Smt. Ram Kaur defendant-respondent who was described as the widow the deceased during those mutation proceedings. The mutation order had been duly attested in favour of the defendant-respondent in an open gathering of the village on December 19, 1946 and there is a note in the register of mutations that the appellants had filed an appeal against that mutation of succession and that this appeal had been dismissed on December 18, 1947.
3. The dispute about succession to Dharam Singh's half share in the land was not agitated in any Court for a period of more than twelve years until the present suit was filed by the plaintiff-appellants in October, 1960. It was alleged that Ram Kaur respondent was not the lawfully wedded wife of the deceased and that she had no right to succeed to Dharam Singh's half share in the land. The plaintiffs claimed to be in possession and sought a declaration that they were owners of the entire land. In the alternative a decree of possession of the deceased's half share in the land in dispute had been prayed for.
4. The parties joined issues on about half a dozen points. The plaintiff-appellants' relationship with the deceased was also made a point in controversy even though the defendant-respondent had admitted that the appellants were the first cousins of her deceased husband. The learned trial court had actually found on the basis of an accidental omission in a certified copy of the shajra nasab. Exhibit P-1 that the plaintiff-appellants were not proved to be collateral of Dharam Singh deceased. The learned lower appellate Court has upset this finding of the trial Court as also the finding that Ram Kaur was proved to be the lawfully wedded wife of the deceased. The reason given was that Ram Kaur could not have lawfully remarried Dharam Singh during the life-time of her first husband. The parties are tarkhans who are shudras and are as such admittedly not included in the twice born classes of Hindus. It is also in evidence that the tarikhans own and cultivate lands and are in such matters governed by custom. The strict principles of Hindu Law would not, therefore, be applicable to these agriculturists of tarkhan caste who are not high caste Hindus. As early as in 1913 the Punjab Chief Court had found in Ishar Singh v. Mt. Budhi. (1913) 19 Ind Cas 460 (Lah) that amongst Sikh Jats of tehsil Shakargarh of district Gurdaspur, the custom of divorcing a woman by repudiation was in existence and that the repudiated woman was free to remarry in the lifetime of her first husband. The marriage was legally valid even in the absence of proof of any ceremony of marriage is karewa or chadar andazi form. Reference could also be made in this connection to a Single Bench decision of this Court to Mt. Angrez Kaur v. Gurdit Singh, (1962) 64 Pun LR 1179. Question and answer No. 20 of the Riwaj-i-am of Ferozepore district to which area the parties belong was brought to the notice of the Court. It records that among the Jats and other Hindus, divorce is normally impossible but that the custom of a man turning out his wife was well recognised and that she was at liberty to remarry. The institution of divorce by repudiation was found to be widely recognised in the neighbouring districts of Ferozepore, Jullundur, Ludhiana and Ambala etc. The Single Bench decision in Angrez Kaur's case was affirmed on appeal by the Supreme Court in Gurdit Singh v. Mst. Angrez Kaur, AIR 1968 SC 142. It was observed by the Hon'ble Judge that a custom existed amongst the Hindu Jats of Jullundur district which permitted a dissolution of the marriage by a husband divorcing his wife by turning her out of the house and that the divorced wife could enter into a valid marriage with another person even in the life time of her first husband, while dealing with the record of customs in the Riwa-i-am of Jullundur district the Hon'ble Judges of the Supreme Court were pleased to observe as follows:--
'It is well-settled that though the entries in the Riwai-i-am are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom as recorded, is in accord with the general custom the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case.
If the Riwaj-i-am is a reliable and trustworthy document, has been carefully prepared, does not contain within its four corners contradictory statements of custom, and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be in those circumstances the Riwaj-i-am would be a presumptive piece of evidence in proof of the special custom set up therein. If, on the other hand, the Riwaj-i-am is not a document of the kind indicated above, then such Riwaj-i-am would have no value at all as a presumptive piece of evidence.
Held, in the light of the above principles that the Riwaj-i-am of the Jullundur district was unreliable and could not prove that there was no custom of divorce among the Hindu Jats of this district.'
5. In the present case, there was overwhelming evidence that Smt. Ram Kaur and Dharam Singh had been living together as husband and wife for a number of years and that they were being taken as such by the world at large. Dharam Singh had transferred mortgagee rights in certain parcels of land in favour of Smt. Ram Kaur in the years 1942 and 1945 as may be evident from the mutation orders, copies Exhibits D-1 and D-2. The lady is described in these mutation entries as the wife of the transferor. The mutation of succession was attested in her favour in an open gathering in the village after the death of Dharam Singh. The appellants had not raised any objection to the validity of her marriage before the mutation officer and an appeal filed by them against the mutation order had been dismissed in the year 1947. The mutation entry in favour of the widow was not challenged thereafter by the appellants for a period of about thirteen or fourteen years. It had been openly stated before the mutation officer that Smt. Ram Kaur had been living with the deceased as his wife for a period of about 25 years. This evidence of marriage by habit and repute was legally admissible and was sufficient to discharge the onus placed on Smt. Ram Kaur of proving the marriage. The plaintiff-appellants' own conduct over a long period of many years may also corroborate the finding. The deceased had acknowledged the respondent as his wife during his lifetime in a number of documents like Exhibits D-1 and D-2 as also in the entry in the register of marriages, Exhibit D-8.
6. I, therefore, find that the lower appellate Court had given erroneous reasons for upsetting the finding of the trial courts on the issue with regard to the validity of the marriage between Smt. Ram Kaur and the deceased.
7. In any case, the entry which had been made in the register of mutations to the knowledge of the plaintiff-appellants in 1946, had given them notice that the widow was setting up hostile title. The period of limitation for filing a suit for possession or for declaration had, therefore, started running against the appellants with the attestation of the mutation entries in December, 1946. The appellants had not filed any suit for declaration or for possession for a period of more than twelve years after that mutation order. The revenue records show that Smt. Ram Kaur was shown as a co-owner with the appellants of a half share in the land and that she was in possession through some tenants from whom she was realising a share of the produce as rent. If the appellants accept that entry about Smt. Ram Kaur being a co-sharer with them of a half share in the land then it would imply that the appellants concede Smt. Ram Kaur's right to succeed to Dharam Singh as his widow. If they deny Smt. Ram Kaur's marriage with the deceased, then they only seek to treat the respondents as trespasser and it is not open to them to try to take advantage of the rulings which lay down that the possession of one co-sharer cannot be adverse to the other co-sharers. Smt. Ram Kaur is not claiming anything more than the deceased's half share in the land and there is no question of her setting up any adverse possession against the appellants in respect of their own half share in the land. If Smt. Ram Kaur's title to the other half share in the land is denied then it would imply that she was not in possession of any part of the land as a co-sharer and that her possession was hostile and adverse to the knowledge of the appellants. The appellants cannot have it both ways. If they want to treat Smt. Ram Kaur's possession to be that of a co-sharer they must accept her as the lawfully wedded wife of Dharam Singh as such entitled to succeed to his share; or the other alternative is that Smt. Ram Kaur's possession may be treated to be as that of a mere trespasser and the suit having been filed more than twelve years after hostile title had been set up to the appellants' knowledge, it was rightly found by the two Courts below to be time barred.
8. I, therefore, find that by custom prevailing amongst the parties, Smt. Ram Kaur could re-marry Dharam Singh during the lifetime of her first husband who had repudiated the marriage by turning her out of his house and that she had actually remarried Dharam Singh in Karewa form a number f years before his death and that the plaintiff appellants' suit filed in 1960 was hopelessly time barred, whether it be taken to be for a declaration of title or for possession of land. The mutation entry made to the appellants' knowledge in 1946-47 was tantamount to the setting up of a hostile title by the widow and this had given a start to the running of the period of limitation against the appellants, irrespective of whether they wanted to file a suit for declaration of title or for possession over the land.
9. The appeal has no force and is, therefore, dismissed. Shri Puri, the learned Counsel for the respondent, does not press for costs.
10. Appeal dismissed.