(1) Kallu Singh, son of Mehr Singh, Chauhan Rajput of village Bat Tahera in Tehsil Jhajjar, District Rohtak, was the last male holder of the land now in dispute. He died sometime in 1920 and on his death Smt. Makhman, his widow succeeded to his estate. On 1st August, 1930 Shiv Nath Lambardar made a report to the Patwari that Smt. Makhman, widow of Kallu Singh, had died without leaving any issue and that Jiwan Singh, son of Shiv Singh, was in possession of the estate left by her. It was, in the circumstances, suggested that Jiwan Singh's name be entered in place of the lady. After making a reference to the pedigree table it was reported that no heirs of the deceased were traceable. The proceedings of 2nd September 1930 before the Revenue Officer show that Smt. Makhma had by means of interrogatories admitted Jiwan Singh to be her heir and raised no objection to her name being removed form the revenue papers.
The pedigree-table of the settlement of 1879 was then referred to and then mutation was ordered to be entered in favour of Shamilat Pana Gahtoli in proportion to Khewat money on account of her karewa marriage. I may here not that the original report by Shiv Nath Lambardar that Smt. Makhman had died was obviously incorrect and what was perhaps intended to be stated was that she had remarried.
(2) On 28th April 1944 Jiwan Singh attempted to have the mutation entered exclusively in his own name, but he did not succeed and on 14th September 1944 mutation in his personal favour of the entire estate was rejected. Smt. Man Bai, defendant No. 1--respondent in the present litigation, applied in 1945 for review of the mutation entry of 1930 on the ground that being the sister of Kallu Singh's estate. Her application for review was allowed by the Collector on 12th October 1945 and after protracted proceedings before the revenue authorities the mutation in her favour was sanctioned on 13th June 1947.
During the mutation proceedings Shivnath Singh raised the objection that his ancestors had given the land in question to Smt. Man Bai's grandfather and therefor, this property should revert to him. This plea was, however, not sustained by the authorities. It was also explained in these proceedings, that till then Smt. Man Bai had come to know about the mutation entry in favour of the properties of Pana Ghatoli, and since her brother's wife, Smt Makhman, was alive, she never came to this village and did not know as to what was happening with respect to the revenue entries.
It may also be stated here that in the course of the mutation proceedings the proprietors took up the plea that this lady was not Mohar Singh's daughter and, therefore, was not entitled to succeed as Kallu Singh's sister on remarriage of Smt. Mahkman. After investigating into the matter the Naib Tahsildar upheld Smt. Man Bai's claim on 2nd November 1949. It is worth nothing that in these proceedings Jiwan Singh expressly admitted that Smt. Man Bai was Mohar Singh's daughter and Kallu Singh's sister.
(3) The present suit was instituted on 31st August 1951 by Karori mal and Sewa Ram for a declaration that Smt. Man Bai had no right of succession or ownership in respect of the land left by Smt. Makhman deceased and that the plaintiffs and defendants Nos. 8 to 12 along with Jiwan Singh defendant No. 2 are the owners and possessors thereof in proportion to the shares of the Khewat money regarding Pana Ghatoli and that Smt. Man Bai had no right to interfere with their said right.
(4) The suit was resisted by Smt. Man Bai defendant No. 1 who denied that Smt. Makhman had contracted a karewa and pleaded that the entries in the revenue papers had been correctly made in her favour.
(5) On the pleadings of the parties the following issues were framed:--
1. Whether Smt. Man Bai, defendant No. 1, is a sister of Kallu?
2. If issue No. 1 is proved, is defendant No. 1 an heir of Kallu?
3. Whether the revenue authorities were not empowered to review the mutation order after such a long period and what is its effect?
4. Whether the land in dispute was obtained by Kallu without compensation, from Pana Ghatoli, and it reverts to the said Pana for that reason?
5. Whether the plaintiffs and defendants Nos. 8 to 12 are proprietors of Pana Ghatoli?
6. Whether the properties of Pana Ghatoli have acquired ownership of the land in suit by adverse possession for more than twelve years?
7. Whether the plaintiffs are in possession of the land in dispute?
(6) The trial Court dismissed the suit holding Smt. Man Bai defendant No.1 to be sister of Kallu Singh and the parties to be governed by Hindu Law. The contention on behalf of the plaintiffs, that according to the custom of District Rohtak a sister had no right of succession, was repelled by the court below on the ground that custom had not been specifically pleaded and proved on the present record with the result that the rights of the parties had to be determined according to their personal law. Under issue No. 3 the Court below held the plaintiffs had failed to show that the revenue authorities were not empowered to review the impugned mutation of 1930 merely because a long period had elapsed.
Issue No. 4 was also decided against the plaintiffs; under issue No. 5, however, the plaintiffs and defendants Nos. 8 to 12 were held to be the proprietors of Pana Ghatoli. Under issue No. 6 the trial Court repelled the contention that the proprietors of Pana Ghatoli had acquired ownership of the land in suit by adverse possession for more than twelve years. It has been expressly observed that defendant No. 1, being a female and resident of another village, could not have come to know of the change in the revenue entries and of the possession of the proprietary body. Defendant No. 1 being ignorant of the plaintiffs' possession of the land and denial of her rights of ownership, the necessary ingredients of adverse possession were held not to be established on the present record. Issue No. 7 was, however, decided in favour of the plaintiffs. With these findings, as already noticed, the plaintiffs' suit has been dismissed with no order as to costs.
(7) On appeal by Karori Mal and Sewa Ram, Mr. Shamair Chand has laid great stress on the plea of adverse possession. He had contended that when a stranger happens to be in possession, it must be assumed to be adverse unless the true owner shows that it was permissive. He has next contended that knowledge of the true owner about the adverse nature of the possession of a stranger is not necessary. In support of his contention he has cited the following authorities:--
(8) Allah Dad v. Fazl Dad, 46 Ind Cas 964: (AIR 1918 Lah 308 (1)) is a judgment by a Division Bench of the Punjab Chief Court the head-note of which lays down the 'the criterion of adverse possession is, whether a person possesses land, claiming it as his own; if he does, he must be held to be in adverse possession'. This case is hardly of any assistance because it did not deal with the question of knowledge of the true owner as such a question did not arise for consideration on the facts.
(9) In Ghulam Murtaza v. Nagina, ILR 11 Lah 410: (AIR 1930 Lah 991), the plaintiffs, who were malikan qabza in their village and as such not entitled to any share in the shamilat, somehow managed to take possession of portions of the shamilat before 1880 and continued to hold it for over forty years; on these facts it was held established that their possession was neither lawful nor permissive at its inception and, therefore, their title by adverse possession was fully proved. This authority again deals with entirely different facts and is of no avail to the appellants.
(10) Ramchandra Narayan v. Narayan Mahadev, ILR 11 Bom 216 is relied upon for the preposition that possession is general evidence of title and is primarily exclusive, and its if or him, who impugns this exclusive title, to show that the possession arose in some way which had preserved his own right. In this case the defendant had taken sole possession of a part of a house at the time of general partition about thirty-five years before the suit and was in exclusive enjoyment thereof. On those facts the adverse possession was held established.
(11) Secretary of State v. Venkatanarasimha Naidu, 58 Ind Cas 689: (AIR 920 Mad 295) deals with the case of riparian owners and is an authority for the proposition that where the true owner of land, having the opportunity to acquaint himself with all the facts and the law, and not being led into any error by the fraud of a party, sees that party openly enjoying the land and claiming it as owner, the true owner cannot, in order to arrest limitation, plead ignorance of the law which made him unaware of his right to possession. This proposition, if anything, goes against the appellants, because here the finding of the court below is that this lady had no opportunity to acquaint herself with all the facts.
(12) Raghubarprasad Ramgulam v. Ballo Sheocharan, AIR 19141 Nag 311 is an authority for the proposition that possession to be adverse need not be shown to have been brought to the knowledge of the person against whom it is claimed, and it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought if he exercises due vigilance to be aware of what is happening. Reliance for this dicta is placed on a decision of the Privy Council in Secretary of State v. Debendralal Khan, AIR 1934 PC 23.
(13) I need hardly refer to Chanar Singh Jai Ram v. Chanar Singh Jeet Singh, AIR 1935 All 265 and Sukadev Ram v. Kulamani Sen, AIR 1944 Pat 74 on which also reliance was placed by the learned counsel. These are Single Bench decisions and they merely apply the ratio of the Privy Council decision in Debdendralal Khan's case, AIR 1934 PC 23.
(14) The Judicial Committee has in Debendrlal Khan's case, AIR 1934 PC 23 authoritatively laid down that the nature of the requisite possession must necessarily vary with the nature of the subject possessed, and that the classical requirement namely nec vi nec clam nec precario must be established. The counsel submits that according to the authorities cited above Smt. Man Bai could with reasonable and due diligence have come to know of the change in the revenue entries and of the possession of the proprietors. In my view the counsel is nor right in his submission.
On the facts of this case it is obvious that a lady in the position of Smt. Man Bai, living in a different village and believing Mst. Makhman to be alive and in possession of property, could not have with due diligence come to know either of the change in the revenue entries or of the alleged exclusive and hostile possession of the plaintiffs and defendants Nos. 8 to 12. It is clear that the mutation proceedings of 1930 were kept secret from Smt. Man Bai and the entry in question was secured behind her back and without he knowledge. The trial Court has dealt with this matter at considerable length under issue No. 6 and I am also inclined to agree with its reasoning and conclusions.
The counsel for the appellants has not been able successfully to assail them. Smt. Man Bai is a cosharer, being also one of the proprietors and, therefore, exclusive possession of a larger share by the other co-shares cannot by itself be regarded as wrongful or adverse unless it amount to an open and hostile overt Act to the knowledge of the ousted co-owner; See Prem Singh v. Tej Singh, AIR 1950 EP 252, Ouster obviously implies denial of the right of the claimant to his or her knowledge, actual or presumed.
(15) The counsel then contended that the change in the mutation is by itself an overt Act and for this submission he has relied on Amar Singh v. Shiv Datt Kaur, AIR 1937 Lah 890 in which a learned Single Judge of the Lahore High Court has observed that removal of the name of the absence cosharer from the revenue records at the instance of other co-sharers in possession of the land is an overt act amounting to ouster, and commences adverse possession of the co-sharers in possession even if no notice of removal is sent to the absentee cosharer. The learned Judge did not follow the decision of another Single Judge of the Lahore High Court in Beli Ram v. Munshi, AIR 1934 Lah 456 in which on similar facts the possession of one cosharer was not held to amount to an overt act.
In the latter case it was observed that it was for the cosharer in possession, in order to defeat the title of the absentee cosharer, to prove that some overt act he constituted his possession into an adverse possession to the other co-sharers, an overt act of which such cosharer had knowledge. Although both these cases do not completely cover the one in hand, yet I am not, as at present advised, prepared to subscribe to the observations contained in Amar Singh's case, AIR 1937 Lah 890. The manner in which the mutation proceedings in the instant case were kept secret from Smt. Man Bai clearly shows that the conduct and the possession of the appellants was not sufficiently open and hostile so as to amount to adverse possession.
On the circumstances of the present case, therefore, the mere removal of name of Smt. Makhman from the revenue papers can by no means be construed to amount to an overt act. In this connection the fact that Smt. Makhman is still alive and the absence of independent evidence on this record as to when--if at all she had remarried and absence of a finding whether her marriage had the effect of forfeiture of her estate are also not without significance.
(16) It is indisputable that statutes of limitation are to be strictly construed and unless their provisions clearly and precisely apply to a particular case, no rightful owner can be deprived of his property at the instance of a wrong doer. The appellants have not succeeded in showing that the conclusion of the Court below on the plea of adverse possession is in my erroneous, unsustainable or unjust.
(17) For the reasons given above this appeal fails and is hereby dismissed with costs.
(18) Appeal dismissed.