HAZARA SINGH Vs. FAQIRIA

JUDGEMENT

(1.) This judgment shall dispose of two Regular Second Appeals bearing Nos. 1898 of 1985 and 2189 of 1985. R.S.A. No. 1898 of 1985 has been filed by defendants No. 3 and 4 and R.S.A. No. 2189 of 1985 has been filed by the plaintiffs. In these appeals, the following substantial questions of law are involved : 1. Whether the alienation made by a cosharer by way of gift of specific khasra number out of the joint khewat would be an alienation of the share out of the joint land, and in view of the said alienation, the donee will become a co-sharer in the joint khewat?

(2.) Whether the suit filed by the plaintiff for declaring him as owner of the property on the basis of adverse possession of the land belonging to his co-sharer has to prove his title by adverse possession by specifically pleading and proving the complete ouster of the co-sharer as well as the animus possidendi from a particular date ? 2. The brief facts of the case are that three brothers, namely, Biru, Ganga Ram and Bhambhu, were the co-owners in a joint khewat comprising of 269 kanals 6 marlas of land. In the year 1916 two brothers, namely, Biru and Ganga Ram gifted 14 bighas 9 blswas of land comprising in specific khasra numbers situated in village Kaimbwala to Nanak and Nathu, who were their real sister's sons out of their share. This fact is not disputed, Defendant Nos. 1 and 2 are the legal representatives of the aforesaid Nanak and Nathu. In the year 1972, some of the land from the Joint khewat was acquired by the Government of Punjab. In lieu of the said acquisition, defendant Nos. 1 and 2 were allotted 7 kanals 5 marlas of land in village Manimajra vide award dated 24-3-1972 (Ex. D8). Thus, in the revenue record, defendant Nos. 1 and 2 were recorded as owners of 17 kanals 17 marlas of land situated in village Kaimbwala and 7 kanals 5 marlas in village Manimajra. The said land was sold by defendant Nos. 1 and 2 to defendant Nos. 3 and 4 by registered sale deed dated 2-2-1980. The said sale deed led to the filing of the present suit by the plaintiffs. Plaintiff Nos. 1 to 3 were the sons of one of the donor Ganga Ram and plaintiff No. 4 is the grand daughter of the other donor Biru.

(3.) The plaintiffs had filed the instant suit for declaration to the effect that they were the owners in possession of the suit land by way of adverse possession and the sale deed dated 2-2-1980 executed by defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4 was without any title and was not having any effect upon their rights. They also sought a decree for permanent injunction restraining defendant Nos. 1 to 4 from interfering in their peaceful possession on the suit land. The case of the plaintiffs, thus, was that the gift, as recorded In the revenue record by Ganga Ram and Biru in favour of Nanak and Nathu was merely a paper transaction and actually the possession of the land in dispute always remained with the aforesaid owners throughout. The plaintiffs and defendant Nos. 5 to 17 had remained in continuous possession of the suit land through their predecessors-in-interest and now by themselves. Thus, their possession was undisturbed, continuous, peaceful, open and hostile to defendant Nos. 1 and 2 for more than 12 years on the date of filing of the suit. Therefore, they had matured their ownership on account of prescription and adverse possession and the sale deed dated 2-2-1980 executed by defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4 was without any title and was not binding on their rights.