CHAUHAN, J. - (1.) THE instant writ petition has been filed for setting aside the judgments and orders dated 24. 4. 85 passed by the trial Court and 19. 1. 2001 passed by the Board of Revenue and for up-holding and restoring the judgment and order of the Revenue Appellate Authority dated 27. 5. 93.
(2.) THE facts and circumstances giving rise to this case are that respondents No. 5, 5/1 and 16, who are the sons and widow of Deepa Ram, filed Suit No. 50/79 in the Court of the Assistant Collector under Section 53 and 88 of the Rajasthan Tenancy Act, 1955 (for short, "the Act, 1955") for partition. THE total land involved in the case was 81 Bighas and they claimed 1/3 share in the property and also restoration of possession on the said land. THE trial Court decreed the suit vide judgment and order dated 24. 4. 85 (Annx. 1 ). Being aggrieved and dissatisfied, the defendant-respondents approached the Appellate Authority, which allowed the appeal vide judgment and order dated 27. 5. 93 (Annx. 2), against which an appeal was preferred before the Board of Revenue by the plaintiff-respondents, which has been allowed vide judgment and order dated 19. 1. 2001 (Annx. 3 ). Hence this petition. The trial Court had framed nine issues and after appreciating the entire evidence, reached the conclusion that Deepa, the predecessor-in-interest of the respondent-plaintiff was not known for last 20-25 years and, thus, was presumed to be dead. The land in dispute had been the joint family ancestral property, in which Deepa had 1/3 share. It also rejected the contention of the petitioner-defendants that 28 Bighas of land had first time been made cultivable by Bhura-father of Rekha Ram and, thus, no body else had any share in it. The suit was decreed by a well reasoned judgment, holding specifically that plaintiff- respondents were entitled to 1/3 share in the land in dispute. The Revenue Appellate Authority set-aside the said judgment and order re-appreciating the evidence and reversing the findings on factual issues. The Appellate Authority reached the conclusion that so far as 28 Bighas of land was concerned, it was self- acquired property of Bhura-father of Rekha, and, therefore, no other person had share in it. Even otherwise, Rekha had acquired the title in the property by way of adverse possession. The Board of Revenue reconsidered the case and came to the conclusion that petitioner-defendants, particularly Rekha Ram, inspite of several opportunities, neither got examined himself nor did he examine any other witness, nor produced any documentary evidence to prove that 28 Bighas of the land belonged to his father Bhura Ram exclusively. It was not even suggested to the witnesses by the counsel for the petitioner-defendants that 28 Bighas of land was made first time cultivable by Bhura Ram. The Halqua Patwari was not asked, even by way of suggestion, whether 28 Bighas land was ever remained as "nautod" land of Bhura Ram and he was having exclusive possession thereof. In view of the fact that neither the petitioner-defendants examined themselves nor examined any other person to prove the said factum, the Board of Revenue recorded the finding that the Appellate Authority ought not to have reversed the judgment of the trial Court on this issue and there was nothing on record before the Appellate Court to show that the land was in exclusive possession of the petitioner- defendants. As the respondent-plaintiffs were minor on the date of presumed death of their father and the widow, respondent No. 6, was an illiterate rustic village-woman, the petitioner-defendants had taken an undue advantage of the situation and neither gave the land of their share to them nor did they allow them to have any share in the crops. It further held that question of adverse possession in family property did not stand proved and thus the judgment and order of the Appellate Authority was bad in law. Adverse possession means a hostile possession, i. e. possession in denial of the title to the true owner. To claim successfully the adverse possession, vesting title in the possessor, the possession must be actual, physical, exclusive, hostile and continued during the statutory period of limitation. In Annasaheb Bapusaheb Patil vs. Balwant (1), the Hon'ble Supreme Court observed that a claim of adverse possession, being a hostile assertion involve expressly or impliedly, in denial of the title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the Courts must have regard to the animus of the person doing those acts. In State of Rajasthan vs. Harphool Singh (2), the Hon'ble Supreme Court observed as under:- "more concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot be themselves, be a substitute for such concrete proof required of open and hostile possession. . . . Such lackadaisical finding based upon mere surmises and conjectures, if allowed. . . . the inevitable casualty is justice and approval of such rank injustice would only result in gross miscarriage of justice. " In a case of joint family property, the claim of adverse possession has to be proved by leading cogent and sufficient evidence. Mere entry in the Khasra Girdawari is not enough to prove an adverse possession over such property.
(3.) IN P. Lakshmi Reddy vs. L. Lakshmi Reddy (3), the Hon'ble Supreme Court considered the issue of adverse possession over the family's property and held that it has to be proved be cogent reasons that there has been hostile relations between the parties and the members, who are being denied their right, had insisted to have their share and it had been refused persistently by the members of the family claiming adverse possession. While deciding the said case, the Hon'ble Supreme Court placed reliance upon the judgment in Secretary of State for INdia vs. Debendra Lal Khan (4), wherein it had been observed that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. But it is well settled that in order to establish adverse possession of one coheir as against another, it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co- heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The Court further observed as under:- "the co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. . . . . It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong, we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai vs. Jeevarathnammal, AIR 1919 PC 44. . . . quotes, apparently with approval, a passage from Culley vs. Deod Taylerson, (1840) 3 P & D 539: 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster `if other circumstances concur. ". . . . . It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession. " In Karbalai Begum vs. Mohammed Sayeed & Anr. (5), the Hon'ble Apex Court observed that mere non-participation in the rent and profits of the property by a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. In such a fact-situation, the possession of the party is always in the nature of constructive trustees and would be deemed in law to be the possession of co- sharer ousted. In Kshitish Chandra Bose vs. Commissioner of Ranchi (6), the Hon'ble Apex Court held that in case of adverse possession, all that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded. ;