Co-sharers in ancestral property retain their rights despite lack of possession; adverse possession cannot extinguish these rights.

JUDGMENT :

MAHENDAR KUMAR GOYAL, J.

1.This writ petition is directed against the judgment and decree dated 12.06.2008 passed by the Board of Revenue Rajasthan, Ajmer (for brevity, ‘Board of Revenue’) whereby, while dismissing the appeal preferred by the petitioners/appellants/defendants (for brevity, ‘defendants’), the judgment and decree dated 27.08.2001 passed by the Revenue Appellate Authority, Sikar, Camp Jhunjhunu (for brevity, ‘RAA’) allowing the appeal no.103/2000 preferred by the respondent/plaintiff (for brevity, ‘plaintiff’) against the judgment and decree dated 21.10.2000 passed by the Assistant Collector (Headquarter), Jhunjhunu (for brevity, ‘trial Court’) dismissing her suit for declaration and partition, has been affirmed.

2. The relevant facts in brief are that the plaintiff filed a suit for declaration and partition stating that the subject property was the ancestral property of the parties. It was averred that her grandfather Shri Dularam had three sons namely S/Shri Bhura Ram, Lichmanram and Shoynarayan. Shri Dularam had already left the joint hindu family and the subject property continued to be in the joint khatedari of S/Shri Lichmanram and Shoynarayan after the death of Shri Dularam. It was alleged that after death of her father on 17.05.1964, taking undue advantage of the fact that she was an illiterate lady and was residing in her in-laws house, the entire land was got mutated by her uncle Shri Lichmanram in his name and after his death, in the name of his son-Shri Prasadaram. In the aforesaid circumstances, decree as aforesaid was prayed for.

3. The defendant in his written statement, although, it was denied that the subject property was the ancestral property; but, it was submitted that after the death of Shri Shyonarayan, his elder brother-Shri Lichmanram became the sole owner of the entire property as, since, Shri Lichmanram used to take care of Shri Shyonarayan till his death, a family settlement had taken place in between the brothers wherein, Shri Shoynarayan agreed to handover his entire share in the subject property to his elder brother Shri Lichmanram. Admitting that the plaintiff had right in the property to the extent of share of his late father under the Hindu Succession Act , 1956, it was averred that since the defendant was in exclusive possession of the subject property, her rights have come to an end under the provisions of Rajasthan Tenancy Act , 1955 (for brevity, ‘Act of 1955’). It was also stated that the defendant has acquired title over the subject property by way of adverse possession. Dismissal of the suit, therefore, was prayed for.

4. On the basis of pleadings of the parties, the trial Court framed four issues. While deciding the issue no.1 as to plaintiff’s share in the subject property, it was held that since, she was not in possession of the subject property for last more than twelve years, her khatedari right stands extinguished and the defendant has acquired title by way of adverse possession. Rest of the issues were also decided against her on the basis of these findings resulting into dismissal of the suit.

5. An appeal preferred thereagainst by the plaintiff came to be allowed by the RAA vide its judgment and decree dated 27.08.2001 holding that since, the plaintiff was a co-sharer in the subject property, neither her khatedari rights in it got extinguished by efflux of time nor, the defendants could acquire title by way of adverse possession. The so-called family settlement/relinquishment deed was disbelieved as it was neither on sufficient stamp nor, was registered and its photocopy only was produced which was inadmissible in evidence. An appeal preferred thereagainst by the defendants has been dismissed by the Board of Revenue vide its judgment and decree dated 12.06.2008.

6. Assailing the impugned judgment and decree passed by the Board of Revenue, the only contention advanced by the learned counsel for the defendants is that it failed to appreciate that there was a will