1. This is an appeal from a judgment and decree of the Court of Appeal, exercising original jurisdiction, dated 31st July 1948, whereby the plaintiffs suit was decreed with costs.
2. The plaintiffs brought the suit for a declaration of their title to sixteen bighas and odd of agricultural land in village Kumin on the allegation that they had perfected a title by prescription for a period of over twenty years. Out of 10 defendants, only a few contested and have resisted the suit on various grounds. The principal grounds were two :
'(1) That the plaintiffs' adverse possession did not have all the qualities of adequacy, continuity and exclusiveness, which should qualify such adverse possession. (2) That the plaintiffs' adverse possession was founded on benami transaction and therefore, according to law of Mandi, the benami transaction being void, the adverse possession can have no legal basis.'
3. The facts of the case are that the disputed land belonged to one Gadru, who, on 19-10-1980, had transferred it for Rs. 1000 in favour of one Guju, predecessor-in-title of the present plaintiffs. At the time of the sale, Guju was a 'Kuthiala' or store-keeper of the plaintiffs.
4. One and only one issue was framed by the learned Judge. It was an omnibus issue--
'Whether the plaintiffs have been in adverse possession of the land in suit for more than twenty years and whether they have acquired title thereto by prescription?'
5. The plaintiffs examined themselves and some witnesses, who deposed that the produce of the disputed land was being paid to the plaintiffs for a long time. The plaintiffs also produced Roznamchas or daily diaries, beginning from 1981 Sambat upto 1986 and again from 1989 to 2003B., wherein the entries made in the handwriting of Guju himself showed that the produce was being appropriated by the plaintiffs.
6. The learned trial Judge decreed the suit on the ground that these entries were in the hands of Guju himself and proved, beyond all reasonable doubt, that the plaintiffs had been in possession of the land since 1981 till 2003B., thus completing more than the requisite period required by the Mandi law. The learned trial Judge did not think it necessary to enquire into the question of Benami transaction. He further did not think that the three years' gap, namely, absence of Roznamchas constituted any serious dispossession to break the continuity. He finally decreed the suit.
7. The learned counsel for the defendants in this appeal has drawn my attention first to this lacuna, the absence of three years' Roznamchas. He has also drawn my attention to the ruling cited by the learned Judge, namely, Secretary of State v. Debendra Lal Khan, A.I.R. (21) 1934 p. Order 23 : (61 Gal. 262). Instead of the ruling of the Privy Council being against him, he draws attention to the passages in that ruling in his favour. It is not necessary to establish adverse possession with the proof of acts of possession, that it should cover every moment of the requisite period. Upon this the learned trial Judge relied while dismissing the contention of the absence of three years Roznamchas. But their Lordships of the Privy Council went on to say that,
'the nature of the requisite possession must necessarily vary with the nature of the subject possessed. The possession must be the kind of possession of which the particular subject is susceptible.'
When so many Roznamchas, from year to year, have been produced, by the plaintiffs in order to show every year's possession, there must be some strong cogent reasons on the record wherefrom the Court might infer in favour of the plaintiffs the absence of three years' Roznamchas. On the record, there is no evidence satisfactorily explaining this gap or lacuna. I agree with the contention of the learned counsel that if the Roznamchas of these years were produced they should have gone against the plaintiffs. The plaintiffs have been trying to account for their possession every year but they have failed to account for three years. There being a break, the starting point will be from 1989 S. and the possession cannot ripen to prescription.
8. Next, from the evidence of the plaintiffs' own witnesses, it cannot be said that an unequivocal hostile title has been proved. The plaintiffs' witnesses 5 and 1, Pira and Mst. Kasturu, state that the produce was taken by Guju 'Kuthiala'. This is interpreted by the learned counsel for the plaintiffs to mean that the Guju Kuthiala received the produce on behalf of the plaintiffs. But it is not so. From the evidence, it is proved that the cultivating tenants gave the produce of the land sometimes to Guju, sometimes to his brother, Thaokar. The statement of these witnesses leave no room for doubt that Guju and Thaokar, predecessors-in-title of the present defendants, were exercising, during the currency of the title of the plaintiffs, various act of possession. The quality of these acts even though they might have failed to constitute satisfactory proof of their actual ownerships yet they may be considered sufficient to destroy that legal adequacy and exclusiveness of possession and continuity and may amount to interruption of possession claimed by the trespasser, See Kuthali Moothavar v. Kunharan Kutty, A.I.R. (9) 1922 P. C. 181 at p. 184 : (44 Mad. 883). In my view, the defendants have been able to prove that their predecessors-in-title, Guju and Thaokar, were exercising, for howsoever short a period, during the currency of the title of the plaintiffs various acts of possession which must have divested that possession of the trespasser and revested it in the owner.
9. I have taken the question of Benami as a defence at the conclusion of this judgment, There should have been an issue on this point. In their written statement the defendants took this point,
10. As regards this Benami, the learned Judge of the Court of Appeal, observed, 'In the present case the plaintiffs neither contend that the transaction was 'Benami' nor do they seek to enforce any such transaction.' It is the. defendants who contended 'Benami' and the defence was that in view of the clear statement which Lala Keshab Ram, plaintiff 2, made before the Revenue Authorities before the institution of the suit, the transaction cannot but be a 'Benami' between the plaintiffs and Guju, their storekeeper. In that statement, he admitted that he had advanced Rs. 1,000 to Guju, who was only an ostensible owner of the disputed land. Om Chand, plaintiff 4, supported the statement of Lala Keshab Ram before the Revenue Authorities. But in this suit, Lala Keshab Ram repudiated his former admissions. But he cannot do so without satisfactory reasons. Moreover, there are sufficient materials on record from which it can safely be inferred that the plaintiffs' original statements were true. Guju was Kuthiala of the plaintiffs. He was making entries in Roznamchas that the produce of his land was being paid to the plaintiffs. Guju could not do so unless he was the ostensible owner and the real owners were the plaintiffs. Benami transaction having been established and declared by law of land illegal and void, the plaintiffs cannot count on the period of these Roznamchas as a basis of the suit on adverse possession.
11. I am unable to agree with the reasonings of the trial Judge that the plaintiffs proved their adverse possession for twenty years or more as required by the Mandi law. In my opinion, the plaintiffs' suit ought to have been dismissed with costs.
12. I would advise the Chief Commissioner to set aside the judgment and decree of the Court of Appeal, and dismiss the plaintiffs' suit with costs here and in the Court below.