1. This is an appeal from a judgment of the Chief Judicial Officer, Simla Hill States at Kasumpti, dated 31st July 1948, reversing a judgment and decree of the District Judge, Theog State, dated 31st July 1947, and thereby dismissing the suit.
2. This is a dispute between three proprietors holding estates respectively in villages, Shariana and Batog in Theog State and Moond in Sirmur State, now comprised in Himachal Pradesh. Each of the landed proprietors of Shariana and Moond maintained that he was the absolute owner to the exclusion of the rest. But the proprietors of Batog estate, save a solitary exception, maintained that all these three estates were joint property. Bali Ram of village Batog defendant 11 claimed that the Batog estate had fallen to the share of defendants 4 to 11 and have been mutually partitioned amongst them without any reference to the plaintiff or to defendants 1 to 3.
3. The case of the plaintiff wag, in substance, that he was the owner of the Shariana estate, covering an area of about twenty-seven bighas and seventeen biswas; that there was a partition between the ancestors of the parties long ago. The ancestors had divided their landed properties in three villages, Shariana, Batog and Moond, into three shares. The ancestor of defendants 1 to 3 took the Moond estate in Sirmur and those of defendants 4 to 11 became owner of Batog estate. Accordingly, each branch has remained in possession of its share since the partition. The plaintiff and his father before him have been paying the land revenue of the Shariana property that fell to their share. The case of the plaintiff further was that the revenue papers had long remained uncorrected and showed shares of the other defendants. Upon the basis of the entry of the revenue papers relating to Shariana land, the defendants commenced a proceeding before the revenue authorities for partition. An objection being raised by the plaintiff, the revenue authorities referred him to the civil Court. Hence, this suit for a declaration that the entries in the revenue record were incorrect and that he was the owner of the Shariana estate and that the defendants had no right, title or interest in it.
4. The respondents are distant kinsmen of the appellant.
5. The case was tried by the District Judge, Theog, who framed three issues, out of which, two alone are material, (1) Had there been any partition of the land amongst the ancestors of the parties? If so, did the land in suit fall to the share of the plaintiffs? (2) If issue 1 is held in the negative, is the plaintiff in adverse possession of the land in suit?
6. In deciding the case, the learned District Judge found issue 1 in favour of the plaintiff and therefore, did not consider it necessary to give a separate finding on issue 2, which he left undecided. He decreed the plaintiff's suit.
7. An appeal was taken to the Court of the Chief Judicial Officer. He disagreed with the finding on issue 1 by the trial Judge. Further, he himself, upon the evidence on record, decided issue 2 against the plaintiff. Finally, he gave verdict for the defendants and dismissed the plaintiff's suit with costs throughout.
8 The point for determination is whether the plaintiff has been able to overcome the presumption of the correctness of the entries in the revenue record or in other words, whether the evidential value attached to such entries has been successfully refuted by a finding in favour of the alleged partition or by a finding establishing exclusive possession for the requisite period amounting to an 'ouster.'
9 There is no documentary evidence regarding the alleged partition. The oral testimony of all the witnesses for the plaintiff is to the effect that they have been seeing the disputed property in possession of the plaintiff's father, Bugohu, and after him his son, the present plaintiff. They have not seen any of the defendants demanding any share of the rent and profits of the land. They have not seen the plaintiff and the defendants joint in food, worship or estate. These witnesses are men of the village Shariana, who have lands adjoining to the plaintiff's or who are his near neighbours. They are ancient men, the average age being between sixty and seventy years.
10. It is not disputed that the plaintiff and before him, his father, have been paying the land revenue for a long time. The plaintiff's witness, Budhi Singh, who is a lambardar, states that for a long time the land revenue has been paid by the plaintiff or by his father.
11. According to the plaintiff's evidence, he was in as complete possession as the subject-matter of the suit admitted of. Among other acts of ownership, there is evidence on record that the land record that the land in Batog had been partitioned amongst defendants 4 to 10 without any reference either to him or to the defendants 1 to 3. Defendant 11, Bali Bam, states that he has mortgaged a portion of his share, which fell to him on partition, to defendant 7, Labdhu. Labdhu has also admitted this.
12. Further, Bhindru, defendant 1, was examined in the trial Court. His evidence is that the estate at Moond in Sirmur State, in the possession of himself and defendants 2 and 3, is separately acquired and they are the absolute owners of this estate. Save and except the bare statement of this witness, there is nothing on record to show from whom the Moond estate was purchased or who purchased it and how it came to be in possession of defendants 1 to 3.
13. lu his cross-examination, Bhindru admits that the Moond estate was purchased by his ancestor. He, further, admits that he was born in Moond and his father also died there. His witness, Sita Bam, states that Bhindru occasionally visited Shariana but the witness has never seen him demanding or claiming any share of the produce of the Shariana estate in possession of the plaintiff. His other witness, Sadhu, states the same thing. Bhindru is, no doubt, supported in his evidence that he took share of the produce of the disputed land by the evidence of Gadri, D. W. 4. But the evidence that would have been important in this case, that of defendants 2 and 3, has not been recorded. These two defendants, would have been in a better position to throw some light, if the Moond estate is actually separate from the, rest of the property. They should have further thrown light upon the participation of the profits and also upon the jointness of the other property, which is known as Batog estate.
14. This is, in substance, the evidence of the parties.
15. The plaintiff or rather those under whom he claims were put in possession of the Shariana lands as a result of partition or mutual separation in food, worship and estate. It is not known when there was a partition or separation. But there is evidence to show that these three proprietors were treating their respective estates at Shariana, Batod and at Moond as owners. Each proprietor has been acting and dealing with his estate in his possession as if he is the sole owner. It was held by their Lordships of the Privy Council in Harikishan Singh v. Partap Singh, A.I.R. (26) 1938 P.C. 189: (32 S. L. R. 798), that it is not the statement of the parties but their actings and dealings with the estate which furnish a true guide to the determination of jointness or otherwise of a family. In my opinion, evidence relating to devolution of properties in separate shares, the plaintiff from his father and the defendants from their ancestors and the holding and management of the properties in separate shares in three distinct villages are the most important evidence in this case on the question of separation. I agree that this evidence by itself is not enough to establish the case of separation set up but it requires explanation. No explanation is forthcoming how these three branches should be holding properties at three different places. The ceseers of commensality is an element which may properly be considered in determining the question whether there was a partition but it is not conclusive. (See Mt. Anundee Koonwur v Khedoo Lal, 14 M. I. A. 412 : (18 W. R. 69 P.C.) and Ganesh Dutt v. Mt. Jewach, 31 L. A. 10 : (31 Cal. 262, P. C.).
16. After a considerable lapse of time, the testimony of the precise terms on which a separation or partition was effected will, in most cases, be wanting. The presumption is that the old state of things continued. This presumption is stronger in the case of brothers than in the case of cousins and further one goes from the founder of the family, the presumption becomes weaker and weaker. The evidence in this case has to be reviewed in the light of this presumption. Mt. Inder Kuer v. Mt. Prithipal Kuer, A. I. R. (32) 1945 P. C. 128 : (I. L. R. (1945) Kar. P. C. 276). Where, therefore, it is found, (the parties (?)) are descendants in three branches from a common ancestor, the presumption in favour of continued union becomes very slender. If it is met by evidence of long continued exclusive possession of parcels of original family estate, of independent dealings with them, of a total separation in food, worship and residence, it cannot prevail against the inference which such acts suggest. Long continued separation in food and worship can seldom exist without separation in enjoyment of property or income.
17. In order to show separation, it may not be necessary to prove a formal partition for it may be, a formal partition was never effected and if effected, it cannot be proved. In such a case the only means of proving partition is by proof of separate enjoyment for a sufficiently long time so as to overcome the presumption of jointness.
18. Their Lordships of the Privy Council in Abdul Wahib v. Tilakdhari, 46 C.L. J. 237 : (A.i.b. (14) 1927 P. C. 208), 'held where the parties are found to have been in possession of separate lands, enjoying their produce or collecting their rents, the Court felt justified in presuming a separation.' In such and similar circumstances, separate appropriation would be very good evidence of a tacit agreement amongst the members or amongst their ancestors to hold that property according to their separate shares. (See Murari v. Mukund, 16 Bom. 201).
19. Several authorities have been referred to by counsel for the defendants. I need refer only to those which have some bearing upon the question.
20. The authority of Hardit Singh v. Gurmukh, A. I. R. (5) 1918 P. C. 1 : (64 P. R. 1918),has no application to the facts and circumstances of the present case. There, the parties were the members of a joint family. Lord Buckmaster, in delivering the judgment of the Board observes, 'if by exclusive possession of joint estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family.'
21. In the present case it is not claimed that the parties are members of a joint family. It is not also claimed that this is the only estate which the parties possess. Three different branches possess separate estates. Defendants 1 to 3 assert that the Moond estate is their separate and absolute property. Here, the parties are related as kinsmen. In my judgment, the principle laid down by the Privy Council supports the contention that mere exclusive possession cannot afford evidence of exclusion but the exclusive possession enjoyed by three branches are elements for consideration whether the proprietors of them intended that they should possess estates as separate an absolute owner thereof.
22. I refer next to the case of Harihar v. Hit Lal, A. I. R. (27) 1940 Pat, 617 : (192 I. C. 502), upon which the learned counsel for the defendants relies. In that case the parties were brothers, five sons of one Chintaman forming a joint family. Owing to the rule of primogeniture which obtained in that family, the eldest son received the bulk of the estate and certain villages were given to the younger sons by way of maintenance over which the dispute arose. The suit related to these villages. In my opinion, the facts and circumstances of the present case are distinguishable from those of the decision cited.
23. The next case is Meharwan Jehangir V. Dhunbhai, A. I. R. (27) 1940 Mad. 786 : (1940-1 M. L. J. 913). The suit was brought by a sister, to recover under the will of her father, certain items of property from her brother and brother's son and also certain legacies. The judgment was based on the ruling of the Privy Council in Corea v. Apuhamy, (1912) A. C. 230 : (81 L. J. P. C. 151) and it was found that the lady had no knowledge of the provision in the will that she was a legatee. It was held that a mere secret intention on the part of a co-sharer to hold the property as his own cannot rob another co-owner, unaware of that intention. This case is also distinguishable from the present case.
24. Counsel for defendants strenuously argued that the adverse possession should be shown to have been brought to the knowledge of the party against whom it is claimed. He further contended that there should be open assertion of title. In my opinion, the question whether certain admitted facts constitute an open assertion of title is a question which a Court should decide. Moreover, the rule that adverse possession should be shown to have been brought to the knowledge of the person against whom it is claimed is not applicable to a person who is a complete stranger. In this case the plaintiff is a kinsman and the nature of the overt act or assertion of hossile title varies with the nature of the subject possessed. It is sufficient that the possession should be overt and without any attempt at concealment. The principle has been laid down, in Sris Chandra v. Baijnath, A. I. R. (22) 1935 P.C. 36 : 62 I. A. 40 by their Lordships, as follows, 'the possession required, in order to constitute adverse possession, must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. The classical requirement is that possession should be nec vi nee clam nee precario. It is sufficient that the possession should 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. It is not necessary that it should be shown to be brought to the knowledge of the party against whom adverse possession is claimed.'
25. It is shown from the evidence that the defendant Bhindru and his predecessors, by exercising due vigilance ought to have been aware of what was happening in Shariana, where Bugchu and after him his son, the present plaintiff, had been continuing in possession and in enjoyment of the usufruct adverse to their interests. In my opinion, the defendant fail in their contention.
26. The remaining question is how far the entries in the revenue records afford any indication of the jointness of the parties.
27. In Nageshar v. Mt. Ganesha, 47 I. A. 57 : (A. I. R. (7) 1920 P. C. 46) their Lordships of the Privy Council laid down that 'a definition of share in revenue and village papers affords by itself but a very slight indication of an actual separation in a Hindu family...' Further, ' the Collector's book is kept for purposes of revenue and not for purposes of title. The fact of a person's name being entered in Collector's book as occupant of land does not necessarily itself establish that person's title or defeat the title of any other.'
28. But such entries may follow, indeed, they ordinarily do, the definition of the shares which if unexplained would be evidence of partition.
29. In Ram Pershad v. Lakhpati, 30 Cal. 231 : (30 I. A. 1) their Lordships of the Privy Council held that such entries, if unexplained, would be evidence of partition. (See also Ram Singh v. Tursa Kunwar, 17 C. W. N. 1085 : (20 I. C. 967). There is no evidence worthy of credit on behalf of defendants 1 to 3 that they have been participating in the rent and profits of the disputed property. No doubt, Bhindru, defendant 1, and Gadri state that they are sharing in the produce of the disputed property, but the other independent witnesses all state that though Bhindru visited Shariana (which is most natural because they are kinsmen), he never demanded in the presence of any villager the share of the produce or that he was ever seen carrying away with him his share of the profits of the disputed property.
30. Their Lordships of the Privy Council in Yellappa v. Tippanna, 66 I. a. 13 : (A.I.R. (16) 1929 P. C. 8) held :
'when it appears from the facts that through generations a property has been possessed in certain single line, it can never be said that it lies upon that line to establish that it was dissociated generations ago from another line which appears on the scene as a claimant and propones no facts of jointness each as living in the same home, sharing in food or worship, or quoad estate participating in the enjoyment or fruits thereof.'
31. The plaintiff and the defendants are kinsmen as has been stated before. The idea that solely out of this relationship, there is some presumption of jointness in family or that the family was originally joint or has continued in jointness to this date is not one which this Court can support.
32. It follows from the facts established in the case, long and uninterrupted possession and enjoyment of the usufruct by the plaintiff's father and after him the plaintiff himself, the payment of land revenue and collection of rents and profits, that there was an 'ouster' out and out and whatever rights, title and interest the defendants possessed in the Shariana estate were extinguished.
38. I am, on review of the whole of the case, of opinion that presumption as to the correctness of the entries in the revenue records regarding the disputed property has been overcome and that the property accordingly remains separate with the consequence that the appeal succeeds. On the facts disclosed, the actual enjoyment of the property and the conduct of all parties including defendants 1 to 3 with regard to it, the plea of 'ouster' or adverse possession has been successfully proved.
34. For the reasons given above, I am of opinion that the decision of the learned Chief Judicial Officer is wrong and must be set aside. I shall advise the Chief Commissioner to allow the appeal, recall the judgment and decree of the learned Chief Judicial Officer and restore the judgment and decree of the District Judge, Theog and decree the suit. It is declared that the entries in the revenue records relating to the Shariana estate may be corrected and the plaintiff's name may be recorded as sole owner in possession of it. Defendants 1 to 3 must pay the plaintiff the costs here and in the Court of the Chief Judicial Officer.