Decided on March 15,1950

Prem Singh And Others Appellant
Mian Tej Singh And Others Respondents


Kapur, J. - (1.) THIS is a defendants' appeal against the judgment and decree passed by the learned Senior Subordinate Judge of Kangra decreeing the plaintiffs' suit. The relationship of the parties is clear from the following pedigree table :
(2.) ON 5th August 1938, the plaintiffs, Mian Tej Singh and Partap Singh brought a suit against the descendants of Himmat Singh for a declaration to the effect that the plaintiffs are the full owners and possessors of the entire land mentioned in the plaint and that the revenue entries showing defendants 1 to 8 as owners of 1/4th are contrary to facts and are not binding on the plaintiffs. The plaintiffs founded their claim on two grounds: (1) that the property in dispute had been acquired by their father, Indar Singh, or his father, Uttam Singh, and that the line of Himmat Singh had no title to the land in dispute, and (2) that the plaintiffs had been in adverse possession of the land in dispute for a large number of years and had, therefore, become owners by lapse of time. The defendants pleaded that the land was acquired by their grand -father and by the plaintiffs' father and the father of the defendants out of joint funds belonging to the two branches of the family, and the land had remained joint and had been jointly enjoyed by the parties, the entries in the revenue record ware consequently correct. On 4th November 1939, the then Senior Subordinate Judge, Kangra, dismissed the suit and the plaintiffs took an appeal to the High Court of Judicature at Lahore, and the case was remanded by the learned Judges on 19th April 1944. There it was conceded that the plaintiffs had not succeeded in proving that the land in dispute had been acquired by Indar Singh or Uttam Singh by purchase and the learned counsel who appeared for the appellants in the High Court, confined his arguments to the question of adverse possession. One of the pieces of evidence which was particularly relied upon by the learned counsel for the then appellants to prove his adverse possession was the application made by Soda Ram defendant on 23rd February 1912 in a proceeding brought by Thakar Singh against his brother Indar Singh, Mr. Achhru Ram who was appearing for the then respondents, pointed out to the Court that the suit in which Soda Ram made the application related to 1/4th of the property in dispute, and as the dispute was not with regard to the property which is now in dispute and which in the revenue papers is entered in the name of the defendants, Sodha Ram had, under a mistaken view, made the application above referred to. It was observed by the learned Judges : If Thakur Singh's suit related to 1/4th share that was recorded in the name of Indar Singh, Soda Ram could have no possible title to it and the denial of his title in this l/4th share would not affect the question of limitation to the prejudice of the defendants. If on the other hand, Thakar Singh's suit related to the entire land now in dispute, the inaction of Soda Ram may affect the question of limitation to the prejudice of all the defendants. It is necessary, therefore, to determine whether Teja Singh's suit related to a 1/4th share recorded in the name of Indar Singh in the year 1912 or whether it related to the property now in dispute. The learned Judges remanded the suit and framed two issues in place of the one issue which had been framed by the trial Court, which were to the following effect: "(1) Are the plaintiffs the sole owners of the land in suit ? (2) Had the plaintiffs acquired title by adverse possession to the land in dispute at the date of the institution of the suit -
(3.) THE case on remand was tried by Mr. Mani Ram, Senior Subordinate Judge, Kangra, and be found on issue I that the plaintiffs had failed to prove the sole ownership of the land in dispute. As a matter of fact before him also it appears that it was admitted by the plaintiffs that the ownership of the land by purchase by their ancestors had not been proved by them. On issue 2, i. e, adverse possession, the learned Judge came to the conclusion that the issue had been proved. For this purpose he relied mainly on the two litigations of the years 1912 and 1930. He, therefore, decreed the plaintiffs' suit and against this decree the defendants have come up in appeal to this Court.;

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