PARSINNI (DEAD) BY L.RS. AND ORS.versusSUKHI AND ORS.

               PARSINNI (DEAD) BY L.RS. AND ORS.                               A
                                     v.
                           SUKHI AND ORS.

                         SEPTEMBER 15, 1993

  [KULDIP SINGH, M.M. PUNCHHI AND K. RAMASWAMY, J.T.]                          B

     Limitation Act, 1963 : Art. 63 of the Schedul~Adverse posses-
sion-Pe1fecting title by prescription-Suit filed thereafter questioning
titl~Whether baJTed.
                                                                               c
       On the death of 'W' there was a division of his properties and 53
kanals 12 marlas of land was left in the possession and enjoyment of his
two unmarried daughters, till their marriage or death whichever was
earlier. After their marriage, their brothers, the Respondents, who had the
right to claim the lands did not even attempt to do so. The appellants
continued to remain in possession and enjoyment thereof to the exclusion D
of the respondents for well over thirty years. Thereafter the Respondents
filed a suit claiming possession of the said land. The trial Court dismissed
the suit as having barred by limitation. The appellate court reversed the
decree. The High Court confirmed the reversal.
                                                                               E
      Aggrieved against the High Court's judgment, appellants preferred
the present appeal.

      Allowing the appeal, this Court

      HELD : 1.1. By Art. 65 of the Schedule to the Limitation Act. 1963,      F
for possession of immovable property or any interest therein based on title,
12 years' period beings to run when the possession of the defendant
becomes adverse to the plaintiff. [318-C]

       1.2. In the instant case the demise of their father, when mutation was
effected and sanctioned by the authorities, the daughters came into pos- G
session of 53 kanals 12 marlas of the suit property. They, being unmarried
minor daughters, under law they were entitled to maintenance till they were
married, and in lieu thereof the property was given and they remained in
possession and enjoyment of the lands. After their marriage, the respon-
dents had the right to claim possession from the appellants but they did H
                                      315
    316                   SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A   not do so. On the other hand the appellants remained in possession and
    enjoyment witho 1t any let or hindrance; they continuous entries in revenue
    records who them as owners. There was no attempt to take possession of
    the land by the respondents. [318-C-F]

         2. Possession is plima facie evidence of title. Party claiming adverse
B possession must prove that his possession must be "nee vinee claim nee
  preemio" i.e. peaceful, open and continuous. The possession must be ade-
  quate, in continuity, in publicity and in extent to show that their possession
  is adverse to the true owner. When the appellants claimed title to the suit
  lands it is sufficient for them to show that their possession is over and
C without any attempt at concealment so that the respondents against whom
  time is running, ought, if to exercise due vigilance to be aware of what is
  happening. The possession of the appellants was adverse to the respondents
  inasmuch as the respondents ever since the marriage of the first appellant
  and her sister continued to remain in possession and enjoyment of the
  property in derogation of the right, title and interest hitherto held by the
D respondents. The entries in the revenue records continuously for 30 years
  would corroborate their pleas of adverse possession and militates against
  the claim of the title of the respondents. The suit was filed in 1963 asserting
   their rights as owners for the first time by which date the appellants have
  perfected their titles by prescription. Therefore, the suit is barred by limita-
E tion under Art. 65 of the Schedule to the Act. [319-C-F; 320-B, C]
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 114 of
     1987.

          From the Judgment and Order dated 21.9.82 of the Punjab &
F    Haryana High Court in R.S.A. No. 1822/73.

             V.C. Mahajan and Ms. S. Janani for the Appellants.

             K.K. Gupta for the Respondents.

G            The Judgment of the court was delivered by

           K. RAMASWAMY, J. The appellants/defendants' appeal by special
     leave arises against the judgment and decree of the Punjab & Haryana
     High Court in Regular Second Appeal No. 1822 of 1973 dated Sept. 21,
     1982. The respondents filed a suit for declaration of title to and for
H    possession of 53 kanals 12 marlas from the appellants. The trial court in
                  PARSINN! v. SUKHI [RAMASWAMY, J.]                      317

 File No. 40 dismissed the suit. The Addi. District Judge, Barnala reversed     A
 the decree of the trial court and decreed the suit in Civil Appeal No. 121
 of 1965 by judgment and decree dated November 28, 1973. The High Court
 confirmed the appellate decree. One Wazira Singh died surviving three
 sons Sukhi, Surjan and Sarwan through his first wife, Mahla Singh son and
 Parsinni and Chinta two minor daughters through his second wife. Wazira
had died on 5.11.1984 B.K. Parsinni is the 1st defendant and Chinto died
                                                                                B
leaving behind her children defendant No.s 2 to 5. From the evidence it
would be clear that, after the death of Wazira, there was a diyision of the
properties by metes and bounds and 53 kanals 12 marlas were left in the
possession of Prasinni and Chinto for their enjoyment. the Mutation No.
1722 Ex. P-8 on 10.2.85 B.K. discloses that they shall remain in possession     C
and enjoyment till their marriage or death whichever is earlier. Their
marriage took place between 1990-91 to 1994-95 B.K. It is not in dispute
that even thereafter for well over 30 years, the appellants continued to
remain in possession and enjoyment as owners to the exclusion of the
respondents Sukhi and other heirs who asserted their title for the first time   D
in 1963 by filing the suit for declaration that they are the owners of 135
kanals 6 marlas including 53 kanals 12 marlas, situated in Bihla village. We
are concerned only with 53 kanals and 12 marlas in this appeal.

      It is the case of the respondents that 53 kanals 12 marlas continued
to remain in their possession and enjoyment. Parsinni and Chinto were           E
never in possession and enjoyment. For the first time they came across,
after a suit filed by them in the court of the Sub-Collector against the
tenants for recovery of the rents and decree thereon was passed in their
favour, that they are assering their rights as owners of the property.
Therefore, the above suit initially was filed for declaration of the title to
                                                                                F
and for injunction and later converted to relief of possession.

      The trial court fonnd that ever since the demise of Wazira the
appellants remained in possession and enjoyment. After the suit they
became separated. They remained in possession as owners and they per-
fected their title by prescription, after their marriage for having been in G
possession for more than 30 years. The suit was also held to have been
barred by limitation. Accordingly it dismissed the suit. The appellant court
reversed the decree holding that the revenue entries disclose that the
appellants remained in possession as owners along with their brothers and
no specific share was given. Therefore, they did not acquire any separate H
    318                   SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A   right. The respondents claimed possession and proprictory right therein
    and entries in revenue records do nol disclose having lost their title for
    more than 12 years. Therefore, they became owners of the land and
    remained lo be owners and possession being not adverse the appellants did
    not acquire title by prescription. The High Court without adverting to the
    question of adverse possessi.on, confirmed the appellate decree.
B
          The sole question ·that emerges is whether the appellants have per-
    fected their title by prescription. By Art. 65 of the Schedule to the Limita-
    tion Act. 1963 for short 'The Act' for possession of immovable property or
    any interest therein based on title, 12 years' period beings to run when the
C   possession of the defendant becomes adverse to the plaintiff. As stated
    earlier, on the demise of Wazira Singh, mutation was effected and sanc-
    tioned by the authorities that Parsinni and Chinto, daughters of Wazira
    Singh came into possession of 53 kanals 12 marlas of the suit property.
    They, being unmarried minor daughters, under law they are entitled to
D   maintenance till they are married and in lieu thereof the property was given
    and they remained in possession and enjoyment of the lands. They were
    married in 1991-92 and 1994-95 B.K. Thereafter the respondents, as -per
    the entries in revenue records, had right to claim possession from the
    appellants but they did not do so. On the other hand the appellants
    remained in possession and enjoyment without any let or hindrance; the
E   continuous entries in revenue records show them as owners. They are in
    enjoyment by leasing the lands to the tenants as evidenced by the judgment
    and the decree of the Revenue Court to the exclusion of the respondents.
    It would show their open assertion of their own right. There was no attempt
    to take possession of the land by the respondents. Even after consolidation
F   also the lands remained in their possession and enjoyment and they con-
    tinued to be recorded as owners.


           The appellants claimed adverse possession. The burden undoubtedly
    lies on them to plead and prove that they remained in possession in their
    own right adverse to the respondents. In fact, they have pleaded and
G   succeeded and the trial court accepted the plea findings thus: "The defen-
    dants 1 to 5 were accepted as owners to the extent of 1/3rd share in the
    estate of Wazira and they continued to hold their shares as such owners
    till the present day. There is absolutely no material on record to show that
    the plaintiffs were the owners or shared with the ownership of defendants
H   Nos.1 to 5. The oral deposition of Surjan Singh carried little weight,
                 PARSINNI v. SUKHI [RAMASWAMY, J.]                        319

 evidence is contradicted by Mahla Singh, DW-1 who had an interest in the A
 suit land to the same extent as the plaintiffs ..... Even if it be assumed that
 the ownership of the daughters of Wazira was valid till their marriages and
 even then the ownership of both Parsinni and Chinto or her heirs con-
 tinued till the present day and on their marriage the rights of the daughters,
if were extinguished, they still continued to hold as own.ers of the suit land
 and after as many as 30 years they certainly have become full owners by
                                                                                  B
prescription." "The entries Ex. P-3. P-4 is sufficient to show that the plaintiff
were excluded from the right of ownership by the daughters and since no
steps were taken for a number of years the right is time barred." The
District Judge proceeded on the premise that the respondents continued
as co-owners and that, therefore they were not excluded. The possession         c
of the appellants were not adverse to the right of the respondents. We find
it difficult to accept the said finding. Female heirs in pre-existing law were
not co-owners. Possession is prima facie evidence of title. Party claiming
adverse possession must prove that his possession must be "nee vi nee claim
nee preeario" i.e. peaceful, open and continuous. The possession must be D
adequate, in continuity, in publicity and in extent to show that their
possession is adverse to the true owner. When the appellants claimed title
to the suit lands it is sufficient for them to show that their possession is
overt and without any attempt at concealment so that the respondents
against whom time is running, ought, if to exercise due vigilance to be
aware of what is happening. The possession of the appellants was adverse E
to the respondents inasmuch as the respondents ever since the marriage of
the first appellant and her sister Chinto continued to remain in possession
and enjoyment of the property in derrogation of the right, title and interest
hitherto held by the respondents. When they openly and to the knowledge
of the respondents continuously remained in possession and enjoyment and
                                                                                  F
the entries in the revenue records establishes that their possession and
enjoyment is as owners, the consent of the respondents initially given to
remain in possession till their marriage or death whichever is earlier does
not prevent possession being adverse after their marriage. Without any let
or hindrance they remained in possession and enjoyment excluding the
respondents from sharing the usufruct from those lands. The test is whether G
the appellan!S are able to show that they held lands for themselves and if
they did so the mere fact that there was acquiescence or consent at the
inception on the part of the respondents make no difference. Since posses-
sion and enjoyment of the first appellant and her sister Chinto wa~ to the
                                                                                H
    320                   SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A exclusion of the respondents' brothers, for well over 30 years it is proved
    that the appellants were in possession and enjoyment openly and con-
    tinuously in assertion of their right as owners. The entries in the revenm~
    recorded continuously for 30 years would corroborate their plea of adverse
    possession and militates against the claim of the title of the respondents.
    The plea that the appellants were never in possession and enjoyment is
B   belied by the entries .in the revenue records. The suit was filed in 1963
    asserting their rights as owners for the first time by which date the appel-
    lants have perfected their titles by prescription. The High Court did not
    advert to this aspect of the matter. Therefore, we have no hesitation to hold
    that the appellants have perfected their title to the 53 kanals 12 marlas by
c   prescription and the suit is barred by limitation under Art. 65 of the
    Schedule to the Act. The appeal is accordingly allowed, the decree of the
    High Court and that of the first appellate court are set si~e and that of th1~
    trial court is restored. No costs.

    G.N.                                                         Appeal allowed.