Kimtu v. Rama Dogra

(1) .r. L. Khurana, j. - this is the plaintiff's regular first appeal against the judgment and decree dated 10. 1. 1992 of the learned single judge of this court passed in civil suit no. 63 of 1983 whereby the suit of the plaintiff for possession of the land measuring 12 bighas 10 biswas comprising of khata no. 732 and khasra no. 55/2, and land measuring 11 bighas 2 biswas comprising of khata no. 739, khatoni no. 1564 and khasra no. ' 54 of phatt nathan, kothi nagar, tehsil and district kullu, specifically described in the plaint and jamabandi for the year 1970 - 71 and hereinafter referred to as the land in suit, was dismissed.

(2) .the suit, out of which the present appeal has arisen, was initially filed by gehru, a deaf and dumb with low intelligence through smt. Devkoo, his wife, as a next friend, in forma pauperis. The said gehru died during the pendency of the suit. The appellant, before this court, smt. Kimtu is the daughter of the deceased who was brought on record as his legal representative and hereinafter is being referred to as 'the plaintiff

(3) Briefly stated, the facts giving rise to the present case are these. Gehru above named deceased, was the owner and in possession of the land in suit and some other lands in phati nathan, kothi nagar, tehsil and district kullu. His wife smt. Sobhi, acting as his general attorney on 4. 10. 1962 and 31. 7. 1971 respectively vide two separate registered real deeds sold the land in suit in favour of one shri charan dass dogra, advocate of kullu, the predecessor - in interest of the defendants 1 to 6.

(4) The said two alienations made by smt. Sobhi were assailed and challenged by way of the civil suit on the ground that the said sates were without consideration and that the deceased gehru, being under a legal disability, was not competent to enter into a legal contract, smt. Sobhi was not legally authorised to sell the land in suit for and on behalf of the deceased gehru. It was further averred that the sale was a result of collusion between smt. Sobhi and the vendee shri charan dass dogra. The first sale dated 4. 10. 1962 in respect of ii bighas 2 biswas of land was effected for an ostensible consideration of rs. 6000 while the second sale made on 31. 7. 1971, which was in respect of 4 bighas 10 biswas was made for an ostensible consideration of rs. 20,000. Though vide the second sale an area of 4 bighas 10 biswas only was purported to have been conveyed, the vendee, in collusion with smt. Sobhi, got an area of 12 bighas 10 biswas allotted in his favour during the partition proceedings. It was also averred that the vendee had the knowledge that the alleged general power of attorney in favour of smt. Sobhi was null and void on account of legal disability suffered by the deceased gehru and also that no permission of the court for the alienation of the land in suit was obtained. The two sales were thus void ab - initio and therefore the plaintiff was entitled to possession of the land in suit.

(5) .the defendants while resisting the suit raised preliminary objections as to locus - standi of smt. Devkoo to act as next friend of gehru, valuation of suit, limitation, maintainability of the suit, estoppel and misjoinder of causes of action: on merits, it was averred that gehru did not suffer from any legal disability. He was only deaf and dumb but capable of understanding his acts and interests. He was legally competent to enter into contracts. The factum of smt. Devkoo being the wife of gehru and her competency to act as his next friend was denied. Smt. Sobhi was the legally constituted attorney of gehru and valid sales were made by her for consideration as such attorney. The land in suit at the material time was vacant and substantial improvements have been carried out therein by the defendants since after the purchase by planting an orchard at - large expenditure. Alternatively, it was pleaded that in case the two sales are held to be illegal null and void, the defendants have become the owners of the land in suit by way of their continuous adverse possession.

(6) A number of issues were framed on 21. 5. 1985, 17. 7. 1984 and 28. 8. 1984 by the learned single judge on the basis of pleadings of the parties,

(7) On the basis of the evidence led by the parties, the learned single judge held that though gehru deceased was deaf and dumb, he was not under any legal disability. Therefore, the suit not having been filed by his personally was not a property constituted suit smt. Devkoo was found to be riot the wife (widow) of the deceased gehru and thus she was neither the legal representative of the said deceased nor competent to act as his next friend while filing the suit. The plaintiff smt. Kimtu though was held to be the daughter of the deceased, it was held that no right to sue survived in her favour since the suit was never filed by gehru himself and there being no legally constituted suit. The deceased gehru was further held to be estopped by his acts and conduct in challenging the two sales effected by his legally constituted attorney. The suit was held to be barred by time. The two sales made respectively on 4,10. 1962 and 31. 7. 1971 were held to be valid, legal and binding. The defendants were accordingly held to be the owners and in possession of the land in suit. Consequently, the suit was dismissed vide the impugned judgment and decree dated 10:1. 1992.

(8) .it will not be out of place to mention here that prior to the present case, a suit being civil suit no. 31 of 1981 was also filed by gehru deceased through smt. Devkoo acting as next friend, assailing the alienation of land made by his daughter smt. Kimtu acting as his guardian and for possession of the land so alienated. This alienation was also made in favour of shri charan dass dogra, the predecessor - in - interest of the present defendants. The said suit was decreed in favour of the plaintiff by a learned single judge of this court, on 18. 10. 1985 reported as ilr (1985) hp 896. In the said suit no objection was raised by the defendants as to the legal disability of the deceased gehru. Nor any objection was raised as to the competency of smt. Devkoo to act as next friend of the deceased gehru and thefiling of the suit by her as such next friend. The only question raised therein was that smt, devkoo was not the legally wedded wife of the deceased gehru and as such, was not his legal representative. Though in the said case, smt. Devkoo was held to be not the wife (widow) of the deceased gehru, the suit brought by her as his next friend was found to have been legally and validly filed and accordingly a decree for possession of the land involved therein was passed by holding the alienation made by smt. Kimtu daughter of the deceased gehru in her capaciy as guarden, to be nuland void ab - initio.

(9) The judgment and decree dated 18. 10. 1985 in the said civil suit no. 31 of 1981 has since been affirmed by us vide a separate detailed judgment and decree of even date passed in regular first appeal no. 108 of 1986 and other connected appeals. The question which thus arises for consideration is - whether the defendants having failed to raise the question of legal disability of the deceased gehru and the competency of the suit filed by smt. Devkoo as his next friend in an earlier suit, can be permitted to raise such a question in the present case?

(10) section 11, code. Of civil procedure, which deals with the principle of res - judicata, lays down: - "11. Res - judicata. - no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit of the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation i - the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation ii - for the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court. Explanation iii - the matter above referred to must in the former suit have been alleged by, one party and either denied or admitted, expressly or impliedly, by the other. Explanation iv - any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation v - any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation vi - where persons litigate bo no fide in respect of a public right or of. A private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation vii - the provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue of former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation viii - an issue heard and finally decided by a court of iimited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which issue has been subsequently raised. "

(11) Explanation iii and iv to section 11, quoted above, are material for the purpose of the present case. The plaintiff had specifically averred in the earlier suit being civil suit no. 31 of 1981 that the deceased gehru was deaf and dumb person with low intelligence. The only dispute was that smt. Devkoo was not his wife and as such not entitled to act as the next friend. Thus there was an implied admission on the part of the defendants that the deceased gehru was under a legal disability and not capable of suing in his own name. The matter with regard to legal disability of gehru was involved in the earlier suit which stood impliedly admitted by the defendants. Therefore, by operation of principle of res - judicata, the defendants cannot re - agitate the said issue again in this case.

(12) .the apex court in state of uttar pradesh v. Naiuab hussain, while dealing with the principle underlying explanation iv to section 11, code of civil procedure, has held that where the parties have had an opportunity of converting a matter that should be taken to be the same thing as if the matter had actually been controverted and decided. In the case before the apex court, the petitioner therein was dismissed from service. He filed a writ petition for quashing the disciplinary proceedings on the ground that he was riot afforded a reasonable opportunity to meet the allegations against him and that the action taken against him was mala fide. The writ petition was dismissed. He, therefore, filed a suit challenging the order of dismissal on the ground, inter alia, that he was appointed by inspector general of police and that the deputy inspector general of police was not competent to dismiss him by virtue of article 311 (1) of the constitution. It was held -.

"it is not is controversy before us that the respondent did not raise the plea, in the writ petition which had been filed in the high court, that by virtue of clause (1) of article 311 of the constitution he could not be dismissed by the deputy inspector general of police as he had been appointed by the inspector general of police. It is also not in controversy that was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contended himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against him was mala fide. It was therefore not permissible for him to challenge his dismissal in the subsequent suit, on the other ground that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the principle of constructive res judicata."

(13) As stated above, the defendants in the earlier suit never raised the plea that the deceased was not suffering from any legal disability and therefore was competent to bring a suit in his own name and that there was no need to act through a next friend. It is not that the issue having been raised in the earlier suit was kept open for re - agitation. It definitely ruled out the plea because it was neither raised nor convassed nor argued in the earlier suit. In these circumstances it is not open to the defendants to re - agitate the issue in the present case.

(14) In sodaman and ors. V. Jharu and ors. , certain proprietors of a village obtained a decree for declaration that they were entitled to graze their cattle in the entire shamlat land of the village. This decision was upheld by the high court. Subsequently, certain other proprietors of the village (who were defendants in the earlier case) filed a suit for recovery of damages alleged to have been sustained by them on the ground that the defendants (plaintiffs in the earlier suit) had allowed their cattle to graze in certain areas of shamlat jand surrounding their huts which were reserved exclusively for their use in terms of the custom of the village. It was held that the plaintiffs in the subsequent suit and who were the defendants in the former suit could have raised the plea taken by them in the subsequent suit as a defence in the earlier suit and the same could have been considered and determined in the said earlier suit. Since they failed to set up this defence, they were precluded from raising the said plea in the subsequent suit.

(15) Assuming that the defendants can raise such a plea in this case, the question that arises is whether the deceased gehru being a deaf and dumb was under a legal disability and the suit filed on his behalf by a next friend is valid? rule 15 of order 32, code of civil procedure, provides : -

"15. rules 1 to 14 (except rule 2 - a) to opply to persons of unsound mind - rules 1 to 14 (except rule 2 a) shall, so. Far as may be apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued."

There is no denying that the deceased gehru was deaf and dumb and it was only be means of signs that one could communicate with him.

(16) The lahore high court in tirath ram v. Emperor had the occasion to deal with the applicability of the provisions of order 32 rule 15, code of civil procedure, vis - a - vis a deaf and dumb person. It was held that order 32, rule 15 is intended to cover the case of persons who are absolutely deaf and dumb and on that account are incapable of receiving any communications or of communicating their wish or thoughts to others. Be it stated that in the case before the lahore high court the concerned person was deaf and dumb. It was only by means of signs that one could communicate with him and his replies also could be given by means of signs.

(17) .following the ratio laid down by the lahore high court, the madras high court upheld the appointment of a guardian adlitem for a deaf and mute defendant who has been leading a family life and eking his livelihood by grazing cattle see: in re perlaswami goundan. In ranbir and ors, v. Tulsi and anr. , while dealing with the case of a deaf and dumb plaintiff, it has been held by the high court of punjab and haryana that even though the case of such a plaintiff may not be covered by the provisions contained in order 32 rule 5, code of civil procedure, a next friend could be appointed by the court for such a deaf and dumb plaintiff in exercise of its inherent powers under section 151, code of civil procedure in the interest of justice since the plaintiff was physically incapaciated due to defect in speech and understanding the whole matter properly.

(18) It is contended on behalf of the defendants that smt. Devkoo, who has been, found to be not the wife of deceased gehru, was not competent to act as his next friend. There is no merit in such contention. Even though smt. Devkoo has been found to be not the wife of deceased gehru, under the law there is no impediment for her being his next friend for the purpose of suit. Under rule 4 of order 32, code of civil procedure, any person can be the next friend provided : - (a) he/she is not of unsound miad; (b) he/she is himself/herself not a minor; arid (c) his/her interest is not adverse to. That of the person for whom he/ she is acting as next friend. There is no requirement under the law that a person must be related to the person for whom he/she is appointed as next friend. Admittedly, smt. Devkoo at the relevant time, was a major. She possessed a sound disposing mind. There is nothing on record to show that her interests were in any way adverse to that of the deceased gehru. We, therefore, have no hesitation in holding that smt. Devkoo was competent to act as next friend for the deceased gehru and as such the suit filed by her in her capacity as next friend for and or behatf of gehru was competent and legally constituted. Since the suit filed through next friend has been held to be legally constituted and competent, consequent upon the death of gehru, the right to sue survived to his daughter smt. Kimtu, who has been validly substituted as plaintiff in place of the original deceased plaintiff gehru, being the sole legal representative. The findings of the learned 'single judge on the points, which are to the contrary, are bad and liable to be set aside.

(19) .insofar as the findings on the point whether smt. Devku is the wife of the deceased gehru are concerned, we are in full agreement with the learned single judge that smt. Devkoo is not the wife of the deceased gehru and as such, not his legal heir and representative. We have held to the same effect in regular first appeal no. 1089 of 1986 and other connected appeals.

(20) .admittedly, the land in suit came to be alienated in favour of the predecessor - in - interest of the defendants vide sale deeds ex. D - 1 and d - 2 respectively on 31. 7. 1971 and 4. 10. 1962. Both these sale deeds were executed by smt. Sobhi acting as general attorney for the deceased gehru. The validity of these two sales would thus depend on the question if smt. Sobhi was a validly and legally constituted attorney of the deceased gehru at the relevant time.

(21) .ex. D - 6 is the photocopy while ex. D - 8 is the original registered power of attorney dated 8. 8. 1962 purported to have been executed by the deceased gehru in favour of his wife smt. Sodhi. In order to prove the execution thereof, the defendants have exam; ined the two attesting witnesses thereof, namely, d. W. 6 pritam and d. W. 7 saranpat. Besides, the sub - registrar before whom the power of attorney ex. D - 8 was presented at the time of registration, has been examined as d. W. 11.

(22) .there is no denying that the deceased gehru was deaf and dumb and could communicate only by means of signs the plaintiff smt. Kimfu, daughter of the deceased gehru, while appearing as p. W. 2 has in unequivocal terms stated that gehru was absolutely deaf and dumb from the very beginning in other words, he was deaf and dumb since birth. P. W. 2 has (not been cross - examined by the defendants on this aspect of the matter, now any suggestion was made either that gehru became deaf and dumb at a later stage or that he could hear if spoken loudly on the failure of the defendants to cross - examine p. W. 2 on the question that gehru was absolutely deaf and dumb from the very beginning, this aspect of the matter will be deemed to have been admitted by the defendants. Therefore, the evidence led by the defendants that the deceased could hear if spoken loudly cannot be accepted and relied upon.

(23) .the evidence as to the valid execution of the power of attorney, thus, has to be scrutinised and examined in the light of the above fact. At the very out - set it may be observed that none of the two attesting witnesses are either related to the deceased gehru or from his village. Both are from different villages. At the relevant time d. W. 6 pritam was not even the lambardar of the village of the deceased gehru.

(24) .d. W. 6 pritam in his examination - in - chief has stated in the following terms with regard to the execution of the power of attorney ex. D - 8, copy of which is ex. D - 6: - "gehru executed a power of attorney in favour of his wife sobhi. It was scribed by hira lal, petition writer. I identify my signatures on the duplicate copy of the power of attorney on bahi no. 4. Its true photostat copy is ex. D - 6 and ex. D - 6/a. The power of attorney was thereafter presented before the tehsildar, kullu. Tehsildar read over the power of attorney in the presence of all of us and inquired from gehru about his consent, gehru indicated it by signs that he had consented. I signed the document once again before the tehsildar and gehru thumb marked it. The document pertained to appointment of sobhi as mukhtiar to do every thing regarding the dispute of land etc. I am illiterate. I do not know anything else. " (emphasis supplied) during the course of cross - examination, d, w. 6 has stated to the following facts: - (i) he never had any occasion to communicate with either gehru or sobhi prior to the date of execution of the power of attorney, (ii) he was not the lambardar of the village of deceased gehru at that time, (iii) he has never visited the house of gehru, (iv) he had attested the power of attorney as a witness at the instance of smt. Sobhi, (v) when he reached, the power of attorney had already been written by the scribe. (vi) the tehsildar asked gehru as to who was sobhi to which gehru replied that she was his "laree" (wife) , (vii) the tehsildar also asked gehru as to what he had written in the document and gehru indicated by signs that he had executed the document in favour of his wife, (viii) gehru did not speak any other word from his mouth except the word "laaree".

(25) .the second attesting witness of ex. D - 8, namely dw - 7 saranpat has deposed that the power of attorney was executed by gehru to enable sobhi to manage the land belonging to him since gehru was deaf and dumb. He has further stated to the following facts : - (a) the petition writer had read over the contents of the power of attorney to gehru who thereafter had affixed his thumb impression. (b) the power of attorney was then presented for registration before the tehsiidar by smt. Sobhi in the presence of the two attesting witnesses and gehru. (c) the tehsildar perused it and read over contents thereof and enquired from gehru as to in whose favour he had executed the same. (d) gehru pointed out towards his nose and spoke "laaree" (e) the contents of the power of attorney were written by the petition writer as given out to him by smt. Sobhi and gehru at that time was nodding his head and saying "aan - aan - aan" from his mouth. (f) gehru was deaf and dumb to the extent he was in 1962 from time he met him first, that is, at the age of 10 - 12 years. (g) the entire work pertaining to writing of the power of attorney and its registration was got done by sobhi and no part was played by gehru since he was deaf and dumb.

(26) .what is brought out in the evidence of the two attesting witnesses is that the power of attorney was read over and explained to gehru both by the scribe and the sub - registrar. This part of the evidence has to be rejected straightaway in view of the fact that gehru was absolutely deaf and dumb. Evidence is lacking to show that the deceased gehru was made to understand by signs about the contents of ex. D - 8. D. W. 11 hardip singh, who at the relevant time was the naib - tehsildar cum - sub - registrar, kullu, has categorically stated in his examination - in - chief that the document ex. D - 8 was read over and its contents were explained to gehru, who was partially deaf and dumb and could hear if spoken to loudly. The power of attorney ex. D - 8 contains three endorsements under the signatures of the sub - registrar. Out of these, the first two endorsements are material. These endorsements, when translated into english read : - "the aforesaid general power of attorney has been presented by shri gehru ram, aged 52 years, slightly deaf and dumb yet intelligent, son of benu son of lehnu, caste bairagi, resident of ghurdor, phati nathan, kothi nagar, before me in my office, i. E. , the office of the sub - registrar, kullu, for the purpose of registration of the same, this 28th day of august, 1962, corresponding to 6 bhado, 1884 saka, viz. , monday between 12 and 1 p. M. Sd. / - sub - registrar" "shri gehru ram executant of the general power of'attomey has admitted. The correctness of the contents of this document after understanding the same through signs/gestures. Smt. Sobhi, the general attorney and wife of the executant of the general power of attorney (shri gehru) is also present. The parties have been identified by the marginal witnesses s/shri pritam lambardar and saranpat. The first witness is personally known to me and he has identified the second witness. Sd/ - sub - registrar 28. 8. 1962. " dw - 11 has admitted that the endorsements are in the hand of the registration clerk and that he had merely signed the same. The witness has not stated that the endorsement were recorded by the registration clerk in his presence and under his dictation. He even could not tell as to who was the concerned registration clerk.

(27) It is well established rule of law that in the case of a person who is illiterate or who is not in a position to read the contents of a document, the contract cannot be imposed upon him simply because he has endorsed his signatures thereon unless further it is proved that he did that after understanding the contents of the same. In other words, the rule of law is that the pen must go with the mind and unless both the elements are present it cannot be said that the document is his. (see : smt. Benarasi debt v. New india assurance co. Ltd).

(28) .nothing has come in the evidence of dw - 11 as to what steps were taken by him to make the deceased gehru understand the contents of the document ex. D - 8. He has stated that he did not remember about the things that happened during the registration of the document except what was indicated by the contents of the document themselves.

(29) As stated above, the above referred to endorsements on ex. D - 8 were neither recorded in the presence of nor under the dictation of dw - 11, therefore, even though such endorsements are per se admissible in evidence under section 35 of the registration act, on the failure of the defendants to exarnine the author thereof, the same cannot be relied upon for the purpose of arriving at the conclusion that the contents of the document ex. D - 8 were properly explained to the deceased gehru and that he understood the same.

(30) .there is yet another suspicious circumstance of the case. The original power of attorney ex. D~8 has come on the record from the custody of the defendants. How they came to possess the same, has remained unexplained. The said document should have been in possession of smt. Sobhi and/or her legal heirs, that is, the plaintiff kimtu. Before ex. D - 8 was produced in evidence on 26. 12. 1985 by the defendants, they were allowed to lead secondary evidence on 19. 8. 1985 to prove the power of attorney. Such permission was granted when a statement at the bar was made by the learned counsel for the defendants that the original power of attorney was not in possession of the defendants, if the defendants did not possess the original power of attorney till 19. 8. 1985, they were required to explain as to how and when they came to possess the same before it was produced by them in evidence on 26. 12. 1985. This shows that the general power of attorney ex. D - 8 was all along in possession of the defendants and their predecessor - in - interest. The only reason for the defendants arid/or their predecessor - in - interest to have retained the original power of attorney, which can be inferred, is to ensure that the invalidity and illegality in its execution may not come to light.

(31) Considering the entire evidence coming on the record the only irresistible conclusion is that no valid and legal power of attorney was executed by the deceased gehru in favour of smt. Sobhi and as such, she was not competent to alienate the land in suit in favour of the predecessor - in - interest of the defendants. Resultantly, the two sale deeds ex. D - 1, and d - 2 having been executed by an unauthorised person are void ab initio and not binding on the rights of deceased gehru. Since the two sales made by smt. Sobhi vide ex d - 1 and d - 2 are vaid ab initio, the plaintiff is not obliged to seek a declaration in this regard and the suit cannot be said to be barred by time. Alternatively, the case of the defendants is that they have become the owners of the land in suit by virtue of their continuous adverse possession for the last more than twelve years. It is well settled that in a suit for possession based on title, there is no period of limitation prescribed save in the case where the defendant has set up the plea of adverse possession. The defendants have averred in para 7 of the reply on merits in their written statement in the following terms :

". Even if it is proved, though not. Admitted that the transactions of sale are void ab initio the defendants have been in adverse possession of the property in dispute and they have thus be"

Come the owners of this property. " the land in suit consists of two parcels, namely : - (a) 12 bighas 10 biswas comprising of khata no. 732 and khasra no. 55/2; and (b) 11 bighas 2 biswas comprising of khata no. 739, khatoni no. 1564 and khasra no. 54.

(32) There is no dispute that land described at (a) came to be allotted in favour of the defendants during the course of partition in lieu of the land alienated in their favour by smt. Sobhi on 31. 7. 1971 vide sale deed ex. D - 1. Even if it be assumed that the defendants and/or their predecessor - in - interest came into possession of this land immediately, after the void sale made on 31. 7. 1971 and their possession is to be taken as adverse from that date, their such adverse possession falls short of the requisite period of twelve years since the suit out of which the present appeal has arisen was filed on 10. 8. 1982. Therefore, the defendants cannot be said to have acquired title to the land as at (a) above by virtue of adverse possession.

(33) .insofar as the land detailed at (b) is concerned, admittedly, the same was alienated by smt. Sobhi on 4. 10. 1962 vide sale deed ex. D - 2. The learned counsel for the defendants has contended that the possession of the land was delivered to the predecessor - in interest of the defendants on the date of sale and they are continuing in possession thereof since then continuously without any interruption and openly claiming themselves to be the owners thereof. It has further been contended that since the sale vide ex. D - 2 has been held to be void ab initio, the defendants, therefore, had no earlier title to such land at all and when they entered into possession of the same under the garb or coverage of a void transaction, their possession from the date of transaction of sale itself became adverse and since they are in continued adverse posses sion for the last more than 12 years, they have acquired title thereto by way of prescription.

(34) It is well settled that a person who enters into possession of the property under an invalid transaction of transfer by way of sale etc. And if he has continued in possession for more than twelve years, then, even if the illegal transfer by itself may not convey the title, but, the adverse possession which commence from the date of entering into possession under the illegal transaction or the sale transaction, entered upon not in accordance with law, then the person acquires and perfects title to the property on completion of twelve years as owner, (see : alla baksh v. Mbhd hussain; state of west bengal v. The dalhousie institute society and smt. Chandrakantaben j. Modi and narendra jayantilal modi v. Vadilal bapalal modi and ors. .

(35) As stated above, the void sale in respect of land detailed at (b) above took place on 4. 10. 1962 vide sale deed ex. D - 2. A perusal of the sale deed shows that the vendee, the predecessor - in - interest of the defendants, was never placed into actual possession thereof. Only symbolic possession was delivered as is evident from the recital. ". Bai kar ke kabja malkana aaj din se unnko de diya hai".

(36) Ex. R - 1 is the copy of jamabandi for the years 1960 - 61. A perusal of the same shows that land measuring 11 bighas 2 biswas comprising of khasra no. 54, subject matter of sale deed ex. D - 2, though recorded under the ownership of deceased gehru, has been shown as in possession of one pahto son of lokhu as "kabiz". Since someone else was in actual possession of this land, the vendor could not have delivered actual possession of the land in question. That is why the sale deed ex. D - 2 records the delivery of symbolic possession only.

(37) Nothing has come in evidence to show as to when the defendants and/or their predecessor - in - interest came into possession of the land in question either by way of ejectment of the said pahto or by way of relinquishment of possession by him. The learned counsel for the defendants has contended that for the purpose of adverse possession, actual physical possession is not necessary and that mere constructive possession is sufficient. In support of his contention, the learned counsel placed reliance on the decision of the apex court in chandra kantaben's case (supra)

(38) The ratio laid down by the apex court in the said case, to our mind, is not applicable to, the facts of the present case. In the case before the apex court, the property in question was in actual possession of tenants. Such tenants had attorned to the donee under a void gift and they were paying rents to him. The printed rent receipts being issued to the tenants for the rent paid also carried the name of such donee as the owner of the property in question. Under these circumstances it was held by the apex court that the actual physical possession of the tenants would enable the donee under a void gift to establish his prescriptive title.

(39) In uppalapati veera venkata satyanarayanaraju and anr. V. Josyula hanumayamma and anr. , also it was held by the apex court that if a tenant makes an attomment in favour of a person who is not the true owner and follows by paying rent to him, such person must be held to have effective possession. The landlord must be deemed to be in possession through his tenant.

(40) In the present case, as stated above, one pahtu is shown as in possession of the land in suit at the time of its sale to the predecessor - in - interest of the defendants. There is nothing on the record to show in what capacity the said pahtu was in possession, whether he was in possession as a tenant or he was in permissive possession or in unauthorised possession. There is also no evidence to show if the said pahtu had at any time attorned to the defendants. Nothing has also come in evidence as to when the possession of pahtu came to an end either by ejectment or by relinquishment. The onus was heavily on the defendants to prove the date from which their adverse possession had commenced.

(41) The defendant smt. Rama dogra while appearing on d. W. 1 has also admitted that one lihtu was in possession of the said land as a tenant and that such tenant was ejected therefrom through revenue court in 1968. The evidence with regard to such ejectment proceedings have not been produced. Nor, as stated above, anything has come on the record to show the attornment by the person in possession in favour of the defendants. Therefore, on the facts and in the circumstances of the case, the defendants cannot be said to have perfected their title by way of adverse possession. They have failed to establish their adverse possession for the requisite period of twelve years prior to the suit.

(42) .consequently, we are of the considered opinion that there is merit in the appeal and the same deserves to be allowed. Resultantly, the appeal is allowed. The impugned judgment and decree dated 10. 1. 1992 of the learned single judge are set aside and a decree for possession of the land in suit is passed in favour of the plaintiff smt. Kimtu and against the defendants with costs throughout. Appeal allowed.