K.Kannan, J. (Oral)

1. The following substantial questions of law arise for consideration in the second appeal:

i) Whether the plaintiffs, whose plea of oral partition was rejected by the courts below, could succeed to the other brother's share (Rattan Singh) on the ground of adverse possession without proof of ouster?

ii) Whether the entries in mutation brought about in the name of the defendant's vendors themselves not sufficient to acknowledge his predecessor's subsisting title over the property and constitute discontinuity of possession?

2. The suit by the plaintiffs for declaration that they had become the owners of half share in about 200 kanals 3 marlas of land situate in various khasra numbers was sought by the plaintiffs acknowledging that the half share belonged to Rattan Singh, who had been a spendthrift, a person of loose morals and known for dissipating his holdings. Rattan Singh's brother was Kirpal Singh and the plaintiffs are the descendants of Kirpal Singh. The plaintiffs would contend that during the lifetime of Kirpal Singh and Rattan Singh, they had made oral partition between themselves in the year 1971 BK and a memorandum had been reduced in writing. The revenue entries however stood in the joint names and Rattan Singh's widow Maan Kaur, who had remained away from the village and not known to be living, appeared to have sold the property to the 1st defendant on 04.02.1959. The plaintiffs would contend that it was a manipulation at the instance of the 1st defendant and the sale was not true. On the basis of such a sale, the 1st defendant got a mutation entered in his favour to which the plaintiffs lodged a protest in the year 1961, but the objections of the plaintiffs were rejected and the defendant's name had been entered as an owner of half share. However, the properties never went out of the hands of the plaintiffs and they continued in possession of the property adversely. The plaintiffs would qualify their character of possession as in “open continuous and adverse possession of the suit land” since their blunt denial of defendant No.1 as a cosharer in the mutation proceedings. This adverse possession, according to the plaintiffs, ought to reckon from the date of denial of title in mutation proceedings and in revision and the half share of Rattan Singh must, therefore, be taken as having ceded in favour of the plaintiffs by adverse possession.

3. The suit came to be filed at a time when the 1st defendant resorted to an action under the Punjab Land Revenue Act for accounting for profits and had also initiated action for partition of the half share to which he had obtained right by a purchase from Maan Kaur. The suit was resisted by the 1st defendant on a plea that there had been no partition in the manner urged by the plaintiffs and that the sale by Maan Kaur as a widow of Rattan Singh was valid and he had actually initiated action for recovery of rent only because the plaintiffs, who had undertaken to give lease, were not paying the lease and they were, therefore, liable to account for mesne profits.

4. It appears that a claim for mesne profits was dismissed, for, the revenue authorities had no power to grant such a relief. The trial Court found that Maan Kaur's status as the widow of Rattan Singh was not denied and it also found that the sale executed by Maan Kaur in favour of 1st defendant had been established. It ruled that there was no partition but found that the denial by the plaintiffs of the 1st defendant's right as a purchaser was manifest in the year 1961 itself in the mutation proceedings and since the cultivation was admittedly in the hands of the plaintiffs, the possession must be taken to be adverse. The lower appellate Court confirmed the said decision holding the plaintiffs' possession being an admitted fact, it was adverse to the defendant whose right had been denied from the year 1961 itself till the year 1980.

5. The learned counsel for the appellant would contend that as plain