Gopal Singh v. Mehnga Singh

D.K Mahajan, J.:— This second appeal is directed against the decision of the learned Senior Subordinate Judge, Gurdaspur partly reversing on appeal the decision of the trial court decreeing the plaintiffs suit for declaration that they were the owners in possession of the land in dispute.

2. Brief facts of the case are that the land in dispute was inherited by Mst. Naraini from her husband. The plaintiffs along with some others i.e defendants No. 2 to 4 are the heirs of the husband of Mst. Naraini and on Naraini's death they would have succeeded to the land in dispute on the 1st April, 1926. Mst. Naraini is alleged to here made a gift in favour of Mehanga Singh, defendant. A suit was brought by the collaterals of Mst. Naraini's husband challenging the gift. In that suit Mehanga Singh took the plea that he was adopted by Mst. Naraini and he also relied on the gift. The Subordinate Judge found that Mehnga Singh had not been adopted and that in spite of the gift, the land remained in possession of the reversioners of Mst. Naraini's husband, who were in possession of the same before the gift. In this situation it was held that the gift would not affect the reversionary rights of the reversioners of the husband of Mst. Naraini. In the revenue records land continued to be shown under the ownership of Mehnga Singh. The present dispute has arisen because after consolidation, Mehnga Singh took possession of the land. The suit has been filed for possession by some of the co-sharers. The donee pleaded that the plaintiff were only entitled to 1/2 of the land and the other reversioners who were entitled to the regaining one half had not sued for possession of the same. The trial court decreed the suit excepting 1/16th share of the land in dispute on the ground that part of the land did not belong to Mst. Naraini. On appeal the lower appellate Court held that 2/17 instead of 1/15 did not belong to Mst. Naraini and has modified the decision of the trial court to that extent. There is no appeal against the decision of the lower appellate Court, so far as the dismissal of the suit 2/17 is concerned. The lower appellate Court, however, dismissed, the plaintiffs suit qua half of land, qua which it held that the reversioner of Mst. Naraini were entitled to succeed. In other words, the trial court had decreed the suit qua 14/15 and dismissed it qua 1/15. The lower appellate Court maintained the decree qua half of 15/17 and dismissed the suit qua 2/17 plus the other half of 15/17.

3. The present appeal is by the plaintiffs qua the dismissal of their suit regarding half of 15/17. The short contention of the learned Counsel for the appellants is that the lower appellate Court was in error in thinking that the claim of the plaintiffs in suit was on the basis of the declaratory decree. On the other hand the claim of the plaintiffs was that they had been in possession of the land in spite of the gift from the year 1926. The gift was merely a paper transaction. The possession all through remained with the co-sharers and as the gift had cast a doubt on their possession they had to challange the gift. The lower appellate Court has found that in spite of the gift, the plaintiffs remained in possession throughout and their possession was disturbed after consolidation by Mehnga Singh and that Mehnga Singh was never in possession of the land. In this view of the matter the decision of the trial Court was correct and the lower appellate Court was in error in reversing the same. The rule is firmly settled that a trespasser can be evicted by one of the co-owners. The position of Mehnga Singh when he entered into possession of the land after consolidation, is merely that of a trespasser and therefore, he could be evicted by any one of the heirs of the husband of Mst. Naraini. In this connection reference may be made to Ganga Ram v. Relu . A.I.R 1933 Lah. 999., Kisjori Jenu v. Rupa Jena . A.I.R 1953 Orissa 285., and Sundarammal v. Saaasiva Reddiar . A.I.R 1959 Mad. 349. Mr. H.R Aggarwal has drawn my attention to a decision of this Court in Gurdev Singh v. Balwant Singh . R.S.A 115 of 1949.. This decision has no applicability to the facts of the present case. The case, would have been different if the plaintiffs were suing for possession on the basis of the declaratory decree this is not the case here. They are merely suing to recover possession from a person who has entered into possession obviously after the death of Mst. Naiaini without any right and by reason of the consolidation authorities giving effect to an erroneous revenue entry. The position of Mehnga Singh is nothing more than that of a mere trespasser.

4. For the reasons recorded above I allow this appeal, set aside the judgment of the lower appellate Court and restore that of the trial court with this modification that plaintiff's will be entitled to possession of 15/17 of the land in dispute. There will be no order as to costs.

Appeal allowed.