(1) This is a plaintiff's appeal from the judgment of the Additional District Judge Gurgaon who reversing the decree of the trial Judge dismissed their suit for a declaration that they were owners of their suit land situated in village Deeghal in Jhaijar Tehsil.
(2) The plaintiffs who are six in number are the descendants of Bahala son of Mihan Ram to whom one-third of the land measuring 37 bighas and 6 biswas was donated by his collateral Hasti; the remaining two-third having been gifted to Ganga Ram Majla and Jug Ram whose descendants the defendants are.. The gift deed (Exhibit P. 1) is a registered document of 30th of May, 1893, and the recitals of this document shown that the donor who was a resident of village Deeghal effectuated his intention of donating the land measuring 37 bighas and 6 biswas together with a house to his four relatives who are the ancestors of the parties. It was stated in this gift deed that Hasti had no other relations apart from these donees. Toward the end it was mentioned that if the donees who were residing in village Bhupania did not settle in Deeghal they would not be entitle dot alienate the property which he was transferring by way of slaw or mortgage. It was further mentioned in the gift deed that the donees had been given possession over the property which had been transferred to them in pursuance of Exhibit.
A mutation transferring this land was sanctioned in favour of the transferees on the 10th of September, 1896, (Exhibit P. 2) in which it is stated that the donor Hasti made a statement before the revenue authorities that the that the transferees Bahals. Ganga Ram Majla and Jug Ram had come to reside in Deeghal and the land should be shown to be in their possession. On the death of Hasti in February, 1904, Ramji Lal son of Bahala made a statement that his father alone out of the donees had settled in Deeghal and the other transferees should be shown as absentee the other transferees should be shown as absentee landlords. This request however was not acceded to tanned all the donees were shown owners of the land which had been gifted to them by Hasti in the mutation Exhibit P. 3 of 27th of June, 1904,. On the basis of the statement made by Ramji Lal and the mortgages on the land having been redeemed by him and his successor Prithi it has been asserted by the plaintiffs that their ancestors alone having settled in village Deeghal are entitled to the exclusive possession of the land gifted to Bahala to the exclusion of the other donee-collaterals.
The precise grounds on which the declaration is sought are enumerated in the four clauses of paragraph 8 of the plaint these being:--
(a) the change of abode of there ancestors form Bhaupania to Deeghal and the continued residence of the defendants ancestors in Bhupania,
(b) the redemption of mortgages with which the gifted land had been encumbered by Ramji Lal son of Bahala from time to time. and the possession of these lands as full owners by the plaintiffs ancestors as evidence by payment of land revenue and other dues to the Government,
(c) the continued possession of the ancestors of the plaintiffs on the entire land gifted by Hasti having become adverse to the defendants rights being to their full knowledge and without their objection,
(d) Adverse possession having ripened into full ownership by efflux of time.
(3) These overt acts in the assertion of the plaintiffs constitute an ouster and entitle the plaintiffs to claim the land as proprietors. The plaintiffs furthers asserted that even the land of Hasti not gifted by him had also been redeemed by their ancestors even though the defendants had been shown to be the ancestors even thought the defendants had been shown to be the owners in the revenue records in accordance with the shares allocated in Exhibit P. 1. The immediate cause of action as stated in the plaint was the assertion of the defendants to obtain possession of their shares in consolidation proceedings which had been going on in village Deeghal for some years. The pleas raised in the plaint files on 29th of December, 1960, were traversed by the defendants and the following issues were struck by the trial Judge:--
'1. Whether the rights of the defendants have become extinct in the suit property of the reasons mentioned in paragraph No. 8 of the plaintiffs?
2. Whether the suit is not maintain able in the present form?
3. Whether the suit is time-barred?
(4) Issue No. 1 is of crucial importance and indeed the decision on the second and third issues was made dependent on it. On a consideration of file evidence the trial Judge decreed the suit of the plaintiffs the principal reasons being that the defendants had not contributed anything to get the lands redeemed from the mortgagees and their failure to have proved any receipts of batai or land revenue. That the property was redeemed by Ramji Lal is apparent from the mutations of 6 of June 1912(Exhibit P 4) 16th of May, 1914, (Exhibit P. 5) 18th of April, 1915 (Exhibit P. 6) 29th of May, 1915, (Exhibit P. 7) and of the 13th of June, 1917, (Exhibits P. 8, P. 9, P. 10 and P. 11). There is also documentary evidence to show that the mortgagee rights in certain khasra numbers were purchased by Ramji Lal. From the entries of the khasra girda waris from Kharif 1951 to Kharif 1960 it is also apparent that the plaintiffs had been in possession of these lands through their ancestors Ranmji Lal and Prithi.
The learned Judge as further influenced by the failure of the defendants to produce any evidence having received their share in the profits in the land at Deeghal or their having settled in Deeghal Ramji Lal's attempt to outset the defendants in the statements made after the death of Hasti in Exhibit P 3 us also used as a support to establish the acts of abandonment and ouster. The conclusion of the learned Judge can best be summarised in his own words thus:
'Under the circumstances and especially the long silence and in action on the part of the defendants or their ancestors and there intention of never settling at village Deeghal are evidence of abandonment of their rights in the property gifted in their favour also the is therefore held that the rights of the defendants have become extinct in the suit property for the reasons mentioned in para No. 8 of the plaint.'
(5) With regard to the question of limitation it was the view of the learned trial Judge that after redemption a co-mortgagor redeeming the mortgaged property becomes a charge holder and a suit by another co-mortgagor for possession of his share is governed by Art. 144, Limitation Act. Even if Ramji Lal's possession was not established to be adverse the learned Judge thought that the defendant's legal disability to recover any pertain of the land under the provisions of Art. 134 of the Limitation Act entitles the plaintiffs to claim the land in dispute as full owners.
(6) The various grounds on which the decree of the trial Judge was based have been fully discussed in the judgment of its reversal of the lower appellate Court. With regard to the failure of the defendants ancestors to settle in village Deeghal reliance has rightly been placed by the appellate Court on the statement of Hasti made in Exhibit P. 2 of 10th of September, 1896, in which the mutation was recorded in favour counsel for the plaintiffs appellants has very strenuously pressed upon me to accept his contention that the statement of Hasti was not in accordance with the realities and it must accordingly be held that the defendants having continued to remain in Bhupania their right in the mind that Hasti himself had made it clear in the deed of gift that possessions had been taken by the document. Moreover the failure of any of the donees to settle in village Deeghal did not entail of the donees to settle in village Deeghal did not entail a forfeiture of their rights to the land which was donated to them; it could only result in the loss of their right to sell or mortgage the property assuming that such a letter could reasonably be placed on alienee's rights.
Mr. Jain has strongly relied upon a statement in the pedigree table exhibit D. 3 to the effect that the plaintiff's ancestors had abandoned their right in village Bhupania. It is suggested by the learned counsel that the property of the plaintiffs in Bhupania had been handed over to the defendants who in turn gave up their right to the gifted property in Deeghal. This point was never pleaded in the plaint or the replication and no evidence could be led which travels beyond the scope of the pleadings. To satisfy myself, I inquired from the learned counsel about the area of the land in village Bhupania which was transferred to the defendants. On the showing of the plaintiffs themselves it is disproportionately small to the share of the defendants' land which they claim to have acquired tin village Deeghal. An opportunity was given to the parties to reconsider the matter in the light of this point made by Mr. Jain repudiated by the counsel for the respondent s at the Bar. A mutual exchange is denied and nothing further need be said about this matter.
(7) The approach of the lower appellate Court with regard to abandonment cannot be attacked as erroneous as contended for by Mr. Jain. The specific plea of abandonment has not been raised in para. 8 of the plaint and it may be reiterated that the relief was sought on the grounds specified in the paragraph No doubt the words 'ouster' and 'overt acts' are vaguely mentioned but abandonment as such a never pleaded. The circumstances that the plaintiffs' ancestors had redeemed a mortgaged portion of the gifted land and their continued possession of it since 1904 cannot raise the inference of abandonment. As held in Bench decision of this Court in Kanhiya v. Mohabata ILR (1960) 2 Punj 7070: (AIR 1960 Punj 404), abandonment means the act of intentionally and is not a mere surrender of property. Abandonment is an act whereby a person gives up his ownership without creating proprietary rights up his ownership without creating proprietary rights in another person. The intention to abandon and the external act by which effect is given to the intention must both concur before abandonment can be established. Adopting these tests I cannot hold that abandonment has been proved even if it may be assumed that it has been claimed as a ground of relief in the plaint.
(8) In my view the learned lower appellant court is also right in holding that realisation of rents or profits by one co-sharer to the exclusion of others is an indecisive factor in reaching a conclusion in favour of the plaintiffs in the matter of adverse possession. As was held in Narsingh Das v. Gokal Chand ILR 12 Lah 1010: (AIR 1931 Lah 339) by a Bench of Addition and Currie JJ., 'the absence of an open assertion of a hostile title by one to the knowledge of the others, 'cannot lead to an ouster and that 'non-participation in the profits by one and exclusive occupation by the other do not establish adverse possession.' The defendants like the plaintiffs have been consistently shown as owners of the disputed property in village Deeghal and being co-owners the various act and circumstances which have been set up in the plaint to constitute adverse possession cannot possibly lead to such an inference.
(9) Ramji Lal had tried unsuccessfully to oust the defendants' ancestors but the revenue records having shown the defendant's ancestors not as absentee landlords but as co-owners like the plaintiffs the interference of adverse possession cannot be legitimately drawn.
(10) Reliance is also placed by the appellants an entry in Exhibit P. 35 which is a jamabandi for the year 1946-47 in which under column 11 the plaintiff's possession is shown to the 'bila langan bawaje tabadla arazi mauzza Parnian.' For the reasons given by the learned District Judge I do not think that this entry could be construed to prove the plaintiff's this entry could be constructed to prove the plaintiff's case that they had acquired possession of the Deeghal lands as a result of the exchange made between the parties. The Deeghal lands had been shown to be 'Khud Kasht' and 'maqbuza malkan.' and as observed by the learned District Judge no plausible reason has been adduced by the plaintiffs brush aside these entries.
(11) Lastly there is the question of limitation Mr. Jain has very strongly pressed before me that the plaintiff having got the land redeemed and the defendants having failed to recover their possession the suit should have been decreed. Reliance is placed on a recent Full Bench decision of the Madras High Court (Ramachander Iyer C, J Jagadisan and Venkataraman JJ) in Valliamman Chapmpaka v. Sivathanu Pillai AIR 1964 Mad 269 (FB), where it was held that:
'So long as the right to contribution subsists in the redeeming co-mortgagor will have a corresponding right to pay up his share and get delivery of possession of his properties............ Thus there will be two period within which a non-redeeming mortgagor can obtain his property from his co-mortgagor can obtain his property from his co-mortgager who had redeemed the first is based on the rule of subrogation and the second is the correlative obligation in the redeeming co-mortgagor to give up the property belonging and the second is the correlative obligation in the redeeming co-mortgagor to give up the property belonging to his co-mortgagor on being paid the money due by him. In the former case where the mortgage is possessory the period of limitation will be governed by Art. 148 and the staring point for limitation will be the same as for the original mortgage redeemed. In the matter case the non-redeeming co-mortgagor will have a period of 12 years form the date of redemption of the original mortgagor will have a original mortgage by other co-mortgagor. It will be open to the non redeeming co-mortgagor to take advantage of any one of these periods whichever is to his advantage.'
(12) It is not necessary in my opinion to enter into the controversy whether the defendants could still retrieve the land which had been redeemed by the plaintiffs. The suit is merely for a declaration on the grounds mentioned in paragraph 8 of the plaint. The rights of co-owners and co-shares in the land are co-extensive and adverse possession not having been proved the question of the right of redemption between co-sharers will give rise to obligations which it is not necessary to be determined in this litigation Article 148 of the Indian Limitation Act like Art. 134 relates to suits filed against mortgages under these provisions are not germane for a determination of the question of the rights simpliciter of one co-owner to exclude the others on ground of their failure to get the land redeemed within the specified period of limitation. I do not wish to be under stood to say anything about the merits of the question whether or not the defendants have a right to claim their portions of the land by and all that is essential to emphasis is that a claim for adverse possession cannot be founded on the basis that non-redeeming mortgagor has failed to obtain relief within the period of limitation from a 'redeeming mortgagee (sic).'
(13) The findings of the Courts below on the points of dispute are essentially those of fact and in my opinion the decision of the lower appellant Court to withhold the discretionary relief of declaration cannot be interfered with in second appeal. This appeal is accordingly dismissed with costs.
(14) Appeal dismissed.