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2016 Supreme(P&H) 2107
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DARSHAN SINGH, J.
Sandeep and others - Appellants
Versus
Fateh Singh and others - Respondents
R.S.A No.2651 of 2012 (O&M)
Decided On : 18-10-2016
For the Appellants :Mr. Arun Jain, Sr. Advocate with Mr. Arnav Sood, Advocate.
For the Respondent:Mr. Anil Kshetarpal, Sr. Advocate with Mr. Rohit Nagpal, Advocate.
IMPORTANT POINT
Will – Execution of – Mere production of the indexes of the register of the Sub Registrar will not prove the execution of the will.
Adverse Possession – Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession or abandonment of title.
Headnote:(A) Specific Relief Act, 1963, S.34 – Suit for Possession – Plaintiff admittedly were put in a permissive use of land – They are in possession for about 90 years – However, on death of owner mutation was sanctioned in favour of wife of owner – Plaintiff hence objected or made an effort to get revenue records in their favour – Son of owner held entitled to got the possession back along with mesne profits.
(B) Succession Act, 1963, S.63 – Will – Execution of – Mere production of the indexes of the register of the Sub Registrar will not prove the execution of the will – These indexes does not convey any information – These indexes do not show as to who was the beneficiary of the Will and the property bequeathed by the said Will – These indexes do not prove the valid execution of the said Will – It does not show as to what was the state of mind of the testator at the time of execution of the Will – Will held to be not proved. (Para 26)
(C) Limitation Act, 1963, Article 65 – Adverse Possession – Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. (Para 29)
(D) Limitation Act, 1963, Article 65 – Adverse Possession – Law of adverse possession which cause an owner on the basis of inaction within limitation is irrationals, illogical and wholly disproportionate. (Para 28)
(E) Limitation Act, 1963, Article 65 – Adverse Possession – The suit for declaration claiming ownership on the basis of adverse possession is not maintainable as the plea of adverse possession is available only as a defence – It cannot be used as a sword. (Para 30)
(F) Limitation Act, 1963, Article 65 – Adverse Possession – In the revenue record, they have been shown to be in possession of the suit land in Bhaibandi or Gair Marusi – Their possession in the revenue record at no point of time has been reflected as adverse (Mukhalfana) – Thus, appellants-plaintiffs have not been able to establish the ingredients of the adverse possession. (Para 29)
(G) Specific Relief Act, 1963, S.34 – Suit for Declaration – Abandonment of title – Mere long and exclusive possession by the appellants-plaintiff will not constitute abandonment of title by the owners. (Para 33)
(H) Specific Relief Act, 1963, S.34 – Suit for Declaration – Abandonment of title – In order to constitute abandonment on the part of the true owner, there should be a complete ouster. (Para 33)
In the instant case Udmi Ram was the owner of the suit property in his lifetime and after his death the mutation of inheritance was sanctioned in favour of Mam Kaur, his widow – If Udmi Ram had abandoned the title of the suit property in favour of the plaintiff, they could have claimed the change of revenue entries qua ownership in their favour – They have also not objected to the sanctioning of mutation of inheritance in favour or Mam Kaur on the death of Udmi Ram. (Para 33)
(I) Civil Procedure Code, 1908, O.20 R.12 – Mesne Profit – No specific form of enquiry has been prescribed in the provisions of Order 20 Rule 12 CPC – The Court can even ascertain the rate of mesne profit on the basis of evidence/material brought on record – That will also amount to an enquiry to ascertain the rate or mesne profit. (Para 38)
(J) Words & Phrases – Mukhalfana – Adverse.
DARSHAN SINGH, J.
The present appeal has been preferred against the judgment and decree dated 07.03.2012 passed by the learned Additional District Judge, Jind, whereby the appeal filed by the appellants-plaintiffs against the judgment and decree dated 27.09.2010 passed by the learned Additional Civil Judge (Sr. Division), Jind, has been dismissed.
2. Appellants-plaintiffs have filed the suit for declaration to the effect that they are owner in exclusive possession of the suit land measuring 268 Kanals 16 Marlas out of 442 Kanal 18 Marlas detailed and described in the head note of the plaint situated in the revenue estate of village Dahola, Tehsil and District Jind. Defendants have no right, title, interest or connection with the aforesaid land. They are only the owner in possession of the remaining land measuring 174 Kanals 02 Marlas out of the total land measuring 442 Kanals 18 Mralas. Appellants-plaintiffs also challenged the revenue entries including mutation no. 3747. They also sought the declaration that defendant no.1-Fateh Singh is not the son of Mam Kaur, widow of Udmi Ram and is not entitled for inheritance of the estate of Mam Kaur qua the aforesaid land. In the consequential relief, they also sought the decree for permanent injunction restraining defendant no.1 from interfering into their peaceful and cultivating established physical possession and also restraining him from alienating the suit land in any manner.
3. As per averments in the plaint, plaintiffs and defendants are the collaterals and descendants of common ancestor namely Phullu. Phullu had three sons namely Jahria, Hamira and Ram Rattan. Udmi Ram was the original owner of the entire suit land. After his death, the land in question was mutated in favour of Mam Kaur vide mutation no. 1444 dated 12.05.1944. In the later jamabandi entries, the name has been entered as Mam Kaur. Out of the wedlock of Udmi Ram and Mam Kaur, no issue was born. To avoid any dispute between the collaterals, Udmi Ram somewhere between 1920-30 put the parties and their predecessors-in-interest in exclusive possession of the suit land to the extent of their share as Malkan without Malkana. They were given full rights to use the land as owner, but the ownership was not changed in their name in the revenue record. Since then, the plaintiffs are coming into exclusive possession of the suit land as mentioned in the head note of the plaint. Said Udmi Ram died in the year 1944. The plaintiffs remained in possession of the suit land without any interruption. After the death of Udmi Ram, mutation was sanctioned in favour of Maa Kaur on 12.05.1944 at Sr. No. 1444. In the later jamabandi entries, the name was mentioned as Smt. Mam Kaur. She used to live separately, but was served by all the collaterals. As the suit land was under the possession of the parties given by Udmi Ram, Smt. Maa Kaur in consultation and with the consent of all the collaterals with her free will executed a registered Will dated 06.08.1962 in favour of 18 persons mentioned in para no. 4 of the plaint, who were already in exclusive possession of the suit land. Said Will was executed by Mam Kaur in the presence of Dhan Singh Sarpanch, Ratia Lambardar and Chandgi Lambardar of village Dahola. After the death of Mam Kaur, none of the parties bothered to get the mutation entered and sanctioned in their favour according to the Will or otherwise on the basis of natural succession. Defendant no.1-Fateh Singh raised the disputed and attempted to get mutation no. 3747 entered and sanctioned in his favour, which was declared disputed. It is further pleaded that defendant no.1-Fateh Singh is not the son of Mam Kaur, widow of Udmi Ram. The name of the mother of Fateh Singh may be Maa Kaur, who was not the same lady who was the widow of Udmi Ram. Maa Kaur @ Mam Kaur had no issue at the time of death of Udmi Ram. That was the reason due to which Udmi Ram gave the land to his collaterals in his lifetime. If Fateh Singh would hav
