Niamat Ullah, President
1. The resp. Paras Ram sued the applts. for joint possession ofone-fourth share in 926 kanals & 8 marlas of land, alleged to belong to the parties as proprietors, & in15 kanals & 18 marlas as occupancy tenants. The applts. contested the resp's claim on two grounds, namely: (1) That the plff.-resp. is not the son of Mathra through whom he claims his title & (2) that the defts.-appllts. have been in adverse possession of the 1/4th share claimed by the plff. for more than 12 years & have perfected their title by prescription, the plff.resp's right having been extinguished in consequence. The plff's suit was decreed by the Ct. of first instance, Sub J., Udhampur, but on appeal by the defts. the Dist. J. of Jammu dismissed ifc as regards the proprietary part of the land in dispute. A second appeal by the plff, to the High Ct. was successful & the decree of the Ct. of first instance was restored. The defts. have appealed to His Highness, challenging the judgment & decree passed by the High Ct.
2. It is common ground before the Board that the land in dispute belonged to four brothers, including Mathra, in equal shares. In 1983, Mathra died & the resp's. name was recorded in the revenue register as his heir & successor. It does not appear to have been then contended by the other co-sharers, as is now done, that the plff. was not the son of Mathra. All the Cts. have found in this case that the plff.-resp. is the son of Mathra & succeeded to the latter's 1/4th share in the property in dispute. This finding is nob impugned by the applts. who now contest the plff's claim on the sole ground of adverse possession.
3. It is not denied by the pltf.-resp. that the defts. who are his uncles or their representatives have been in actual possession ever since the death of his father Mathra but he maintains that their possession has been that of co-sharers & that the plff.-resp. has been in constructive possession through them. The deft.-applts', plea of adverse possession is based on transaction which took place not long after the death of Mathra. The plff-resp executed what purports to be a deed of gift, dated 9th Magh, 1983, in favour of his uncles. The deed was presented for registration by the donees in the office of the Sub- Registrar. On an office report, the Sub-Registrar ordered that a certificate of the parties being agriculturists be furnished by a certain date. This was not done & the deed remained un-registered. It has since been lying in the office of the Sub-Registrar from where it was summoned for production in the present case as evidence. The defts' oase is that on the date of the gift their possession became adverse & exclusive with the result that the plff's right to the property, mentioned in the deed of gift was extinguished. It is not in dispute that the entire property now in suit was the subject of. the gift.
The High Ct. held that the unregistered deed of gift did not convey any right to the donees nor, in the circumstances of the case, the character of the defts' possession was in any way changed & that the defendants have throughout been in possession as co-sharers on behalf of themselves & the plaintiff.
4. The learned advocate for the applt. reiterated before the Board the contention which had been repelled by the High Court. Reliance has been placed on Varada Pillai v. Jeevarathanammal, 43 Mad. 244; (46 Ind. App. 285); Maung Po Hiding v. Po Nyi, A. I. R. (2 8) 1941 Rang, 111 Sain, Gauhar Ali v. Khadim Hussan, 5 J. & K. L. R. 152. In the first of these cases their Lordships of the P. C. held that the recitals in in an invalid gift may be referred to as explaining the nature & character of the possession thenceforth held by the donee. The other two cases, referred to, merely follow the proposition laid down by the P. C. An examination of the judgment in Varda Pillai v. Jeevarathnammal, 43 Mad. 244, shows (at p. 249) that the donor had parted with actual possession of the property & the donee took possession thereof holding the same for more than twelve years on the assertion that he was its full & exclusive owner under the gift. In the present case, the circumstances are quite different. The plff.-resp., who is described by one of the deft's witnesses as a lad of 17 or 18 at the time of the gift (mentioned in the Stamp Vendor's endorsement as aged 20) put his thumb mark on the deed of gift being unable to sign his name. The deed was presented for registration by the donees. The donor does not appear to have ever presented himself before the Sub-Registrar. The donees too did nothing, after presentation, to obtain registration of the deed. Both parties treated it as as dead letter, as in fact ifc has remained since. The circumstances in which the donor's thumb impression was obtained on the deed of gift, have not been investigated. It should, however, be noted that the plff. has not pleaded either fraud or undue influence. The circumstances already refd. fco unmistakable point to the conclusion that the transaction of gift was not completed & the par ties to it abandoned all idea of the gift taking effect. In other words, they agreed to maintain the status quo. The assertion of adverse title by the deffcs. is clearly negatived by their conduct & the principle underlying the cases, above referred to, can have no application. The character of the defts' possession, therefore remained the same as it was before the contemplated gift. In this view the pltf. should be deemed to have been in constructive possession through his uncles & nothing has happened which could extinguish his title.
5. In the result the present appeal must fail & the Board humbly advise His Highness that this appeal be dismissed with costs.