Jagjit Singh, J.
(1) This second appeal is against the judgment and decree of the District Judge, Ambala (camp Simla), dated June 22, 1964.
(2) The facts necessary to be stated for purposes of this appeal are very simple. Thakar Dass respondent was owner of one Bigha and five bids was of land comprised in Khasra No. 103-Min, (corresponding to the new Khasra No. 118) situate in village Dhar, Tehsil and District Simla. Out of that land 17 bids was of land had already been sold by him. The remaining b bids was of land was also sold by him, through a registered sale-deed, dated July 6, 1934 to Ram Chandra, father of Trilok Chand and Prem Chand. The sale-deed contained a recital that the possession of the land had been dilivered to the vendee Thereafter on April 30. 1963, the Respondent 1nstituted a suit against Shiv Singh Thapa and the sons of the vendee for permanent injunction or in the alternative for possession of 9 bids was of the land of Khasra No. 11 b, which had earlier been sold by him.
(3) It was averred in the plaint that the sale had nto been acted upon and the plaintilf had become owner of the land through adverse possession. After the death of Ram Chandra, Trilok Chand and Prem Chand were stated to have sold the land, through a deed dated December 26, 1962, to Shiv Singh Thapa. It was prayed that the defendants be restrained from interfering with the rights of the plaintiff in the land and that they should also be required to demolish a wall which had been constructed thereon. In the alternative the relief of possession of the land was claimed.
(4) The suit was contested by the defendants. The learned Senior Subordinate judge, Simla, on November 23, 1963, dismissed the suit with costs after holding that the plaintiff had faild to prove his adverse possession on the land for a period of more than 12 years and that the averment about the sale nto having been acted upon was nto established. An appeal was filed by the plaintiff to the District Judge, Ambala, who reversed the above referred to findings and decreed the suit for possession of the land, but left the parties to bear their own costs throughout.
(5) As stated above it was the respondent's own case that the land in dispute had been sold by him but according to him the possession was nto delivered and thereafter he again become its owner through adverse possession. In his statement the respondent mentioned that he had been selling the right to cut the glass every year and had been in possession for that reason. He further made it clear that he never cultivated the land after its sale in the year 1934. Two toher facts about which he deposed were that the land was attached by the Senior Subordinate Judge, Simla, as his property and that it was mortgaged by him, without possession, to one Sikandar Lal. Kanshi Ram was produced as a witness who stated that from the year 1931 he had been purchasing the right to cut grass from this land but without executing any document. It was added by him that he used to cut the grass during rainy season. He admitted that the house of the appellants was about 10 yards above the land in suit.
(6) From the appellant's side the oral evidence produced consisted of the statement of Hoshiar Singh and Shiv Singh who stated about their reming as tenants in the house of Trilok Chand and Prem Chand and to have grown vegetables in the land in dispute. The fact that Kanshi Ram used to cut grass was nto denied but it was mentioned that the grass was nto required by them. Trilok Chand as well stated that possession of the land had been delivered after the sale and that ground tax was being paid for the land by him from the year 1935 and the land being within the municipal limits, no land revenue was being realised. I he evidence of Shiv Singh Thapa was about purchasing the land from the toher defendants and that he was in its possession. He stated that a wall was constructed by him on the land.
(7) The learned District Judge relied upon the testimony of Kanshi Ram and held that he had been cutting grass with the permission of Thakar Dass. Shiv Singh and Hoshiar Singh, witnesses of the appellants, were nto considered to be reliable. From Khasra Girdawaris for the year 11-4546 and the year 1955-56 ( Exhibts P.8 and P.7)anda copy of an extract of Jamabandi for the year 1960-61 it was concluded that the respondent had been in continuous possession for over twelve years. Regarding the recital in the sale-deed about delivery of possession to the vendee the learned District Judge remarked that it was a very weak type of evidence and nto sufficient to rebut the presumption arising from the revenue records.
(8) A decision regarding a party's possession being adverse being an inference from facts, its correctness as a legal conclusion to be drawn or nto is one of law and can be considered in a second appeal. It was so held in Nawab Khan v. Abdulla Khan. Even accepting the finding of fact given by the learned District Judge that Kanshi Ram had been cutting grass which grew en the land in suit during rainy season, after obtaining permission of the respondent it is difficult to say that this fact alone could prove the possession, muchless the adverse possession, of the respondent. Three bids was of the land is Ghasni and the rest is Banjar Qadim. Ordinarily grass which grows wild during rainy season on land lying vacnt can be cut by any body unless the owner or the person in possession may object to such cutting of the grass. Shiv Singh (DW. 1) stated that the grass was nto required by them and no objection was, thereforee raised to its cutting by Kanshi Ram.
(9) Cutting of wild glass by Kanshi Ran) from the land in suit which was lying vacant possibly could net have given any indication to the real owner that the person cutting the grass was doing so with the permission of the previous owner. In Jahandad Khan and tohers v. Abdul Ghajur Khan their Lordships observed that there was special difficulty in establishing adverse possession in the case of uncultivated jungle land which has a seasonal crop of wild grass. In delivering the judgment of the Board in the case of Radhamoni Devi v. Collector of Khulna Lord Robertson remarked that the possession which was recuired to be proved 'must be adequate in contiruity, in publicity and in extent to show that it is possession adverse to the competitor.'
(10) There was no publicity regarding any permission that may have been given by the respondent to Kanshi Ram to cut wild seasonal grass growing on vacant land. That man had been cutting grass from that land even before the sale was made and his continuing to take permission even after the sale for cutting, of garss, without the knowledge of the vender, was nto such an act which could either show possession of the respondent or constitute adverse possession.
(11) The attachment of the land in connection with some decree against the respondent was said to have been affected on July 10, 1934. That attachment was nto an act of the respondent and no material was placed on the record to show that subsequent to the attachment any further proceedings were taken in respect of the land As such nto filing any objections by the vendee could nto show that possession had nto been delivered to him.
(12) Arecital in a sale-deed cannto be considered to be aweak piece of evidence so tar as the parties to the transaction are concerned. As already stated in the sale-dee executed by the respondent there was a recital that possession of the land had been delivered to the vendee. That was an admission of the respondent that possession had been delivered and unless it was positively established that the recital was wrong, the normal inference to be drawn was that possession had pasted on from the vendor to the vendee. In toherwords the sale made by the respondent had been acted upon.
(13) In the Jainabanai turn the year 1961, name of the respondent appears in the colum of owner and he is also shown to be in possession of the land. There is also an entry regarding simple mortgage of the land in favor of Sikandar Lal but the date on which the mortgage was aftected was nto indicated. This entry relating to the mortgage could nto be of much help to the respondent when it was nto proved as to when he had mortgaged the land or that the transaction of mortgage had taken place more than 12 years before the institution of the suit.
(14) The respondent had also produced a copy of Khasra Girdawar for Kharif 1958 and Rabi 1959. I his document goes against him and shows that Trilok Chand appellant was in possession without payment of rent on account of the sale. Similarly in Khasra Girdawarl for Kharif 1962 and Rabi 1963 the possession was shown to be of Trilok Chand and Prem Chand appellants.
(15) As no mutation was sanctioned in favor of the vendee the name of the original owner continued to appear as owner in the revenue record. From khasra girdawaris for the years 1945-46 and 1955-56 it could nto be said that the respondent was continuously in possession for over 12years. If his name appeared in the Janabandi for the year 1960-61, the name of the vendee's sons appeared in the khasra girdawari for the years 1658 59 and 1962 63. Thus even the revenue records did nto .show continuous possession of the respondent for a period of over 12 years after he had sold the land.
(16) Puran v. Kure was cited. In that case the plaintiff had taken possession of the land without the consent of the owners and he remained in possession without payment of rent and the owners took no steps to assert their rights as against him for a period of 15 years. The entries in the revenue record were 'Ghair maurusi tila lagan bawaja nawakfiyat'. It was held that these facts constituted adverse possession. In the present case the respondent cannto be considered to have either taken possession of the land after the sale or to have remained in its possession. The case relied upon by the learned counsel turn the respondent can be of no help to him.
(17) The inference drawn by the learned District Judge regarding the adverse possession of the respondent from the facts before him was altogether unjustiaed. The respondent nto only failed to show that possession was nto delivered to the vendee when the land was sold by him but also that he remained after the sale continuously in its possession for a period of 12 years. The land being vacant the possession could be considered to follow title.
(18) For the reasons given above, the appeal is accepted with costs throughout and the judgment and the decree of the District Judge are set aside and the decree of the Senior Subordinate Judge, Simla, dated November 23, 1963, is affilmed.