JUDGMENT
D.B. Lal, J.
1. This appeal and cross objections have been directed against the decision of the District Judge, Kinnaur confining on appeal the decision of the Subordinate Judge, Theog whereby a suit of Balia and others for declaration and injunction in respect of the land situate in villages Shabog and Shiva measuring 49 bighas and odd and 16 bighas and odd respectively has been partially decreed. The case of Balia and others was that their father Bhainu was real brother of Atma father of defendants Kanshi Ram, Shibu and Mithya deceased husband of Sandhuru defendant No. 3. There were two other brothers of Bhainu and Atma. These were Kehru and Chehroo but both died without leaving any issue. As such the plaintiffs became entitled to one half share of the landed property which belonged to Ganga — the common ancestor of the parties. It was written in the revenue record as one half in the ownership of the plaintiffs and another half share in the ownership of the defendants. As such they were co-owners but possession remained with Kanshi Ram defendant No. 1. However, by executing a will on 7-12-1964 Kanshi Ram claimed exclusive title for the property. Since a cloud was cast upon the title of the plaintiffs, they filed a suit for declaration and injunction against the defendants. The suit was resisted by the defendants on the grounds that Kehroo had adopted Kanshi Ram defendant No. 1 and Mithya, the two sons of Atma and as such one third share of Kehroo devolved upon these two adopted sons, with the result that Bhainu became entitled to only one third which devolved upon the plaintiffs. Besides this the defendant No. 1 also pleaded that he being in possession for the last 50 years perfected his title by adverse possession. It was also stated that the plaintiffs belonged to Keonthal State and on the occasion of a certain death which took place of the Ruler of Keonthal they got their heads shaved. This ceremony of head shaving popularly known as “SARBHADAR” deprived them of their share in the disputed property situate in the State of Madhan. That was an additional ground why the plaintiffs’ share in the landed property belonging to Madhan State stood forfeited due to SARBHADAR. The defendants, therefore, contended that the plaintiffs were not entitled to claim any share in the disputed property.
2. The learned trial Judge found that the adoption was proved as it was evidenced by a PATTA EX. D. B. and an order Ex. D.A. executed on 10-5-1919 at the instance of the Ruler of Madhan. On the question of adverse possession, however, it was held that the defendant No. 1 was a co-owner and his possession was in favour of other co-owners. Therefore, the defendant No. 1 never acquired any title by adverse possession. The result was that the suit was decreed for one third share of the property and to that extent relief of injunction was also granted.
3. Both the parties came in appeal before the learned District Judge and the two appeals have been dismissed. The findings of the learned trial Judge were confirmed and this has given rise to the present second appeal by Balia and others and cross objections by Kanshi Ram and others.
4. As regards the question of adoption, the learned counsel for the plaintiff-appellants submitted that a presumption arose under law that in the matter of adoption the provisions of Hindu Law were applicable. The argument proceeded, that no evidence was forthcoming for the ceremony of giving and taking which was essential to prove adoption. Therefore, according to plaintiffs no adoption could be proved. The learned counsel referred to Section 5 of the Punjab Laws Act, 1872 which give out the legislative declaration that in a question regarding adoption the rule of decision would be governed by the Hindu Law except in so far as such law, was altered or abolished by legislative enactment, or was opposed to the provisions of that Act or was modified by any custom. The learned counsel submitted that neither any provision of that Act was pointed out nor any custom was pleaded contrary to the provision regarding adoption enumerated in Hindu Law and therefore the ceremony of giving and taking was essential to prove adoption. Section 5 of the Punjab Laws Act, 1872 was obviously made applicable to Himachal Pradesh under the Himachal Pradesh (Application of Laws) Order. 1948. Therefore, the legislative direction contained in Section 5 of the Punjab Laws Act. 1872 by virtue of Section 7 of the Himachal Pradesh (Application of Laws) Order, 1948 applied to Madhan State and
the provisions of Hindu Law were enforceable.
5. A little probe, however, in this argument brings out the position entirely different. It is observed in paragraphs (2) and (3) at page 76 of the Principles of Hindu Law by D. F. Mulla. (12th Edition) that the power of the Courts of India to apply the Hindu law to Hindus is derived from and regulated by certain statutes of the British Parliament and by imperial and provincial legislation passed during the period of their rule. That apart the provisions of Hindu Law relating to adoption were applicable by virtue of express legislation or on the principle of justice, equity and good conscience and not otherwise. The learned counsel for the plaintiff-appellants sought aid of Section 5 of the Punjab Laws Act, 1872–a provision of provincial legislation in support of his contention that Hindu law applied to Madhan State in the matter of adoption. But this adoption took place in the year 1919 and the Punjab Laws Act, 1872 was made applicable to Madhan State in 1948. Therefore, we have to find out another express legislation pertaining to adoption which might be in vogue in 1919 and that express legislation will govern the decision of the present suit.
6. It is undisputed that the Ruler of Madhan was an autocratic Ruler and all the executive, legislative and judicial powers vested in him. His word was law and whatever directions he issued amounted to express legislation by him. Ex, D. A. is the application moved by Kehroo On 10-5-1919 whereby he sought permission of the Ruler to adopt two of his nephews, Kanshi Ram and Mithva. The Ruler charged Rs. 100/- as Nazrana and issued the PATTA Ex. D. B. The adoption was sanctioned under certain conditions. Nevertheless the two nephews Kanshi Ram and Mithya were made to succeed Kehroo in all respects. It appears thus irresistible to conclude that the order of the Ruler was express legislation permitting adoption. The provisions of Hindu law were not applicable because it is not disclosed under what power those provisions were made applicable to Madhan State in 1919.
7. Regarding the power of an autocratic Ruler to issue an order which amounts to a legislation and hence binding on all concerned, there are judicial decisions. In Ameer-un-Nissa Begum v. Mahboob Begum. (AIR 1955 SC 3521 and Director of Endowments, Government of Hyderabad v. Akram AH, (AIR 1956 SC 60) the Firman issued by Nizam prior to the coming into force of the Constitution was considered to be a piece of legislation binding upon his subjects. The Nizam enjoyed uncontrolled sovereign powers.
He was the supreme legislature, the supreme judiciary and the supreme head, of the executive and there were no constitutional limitations upon his authority to act in any of these capacities. The firmans were expressions of the sovereign will of the Nizam and they were binding in the same wav as any other law, nay they would override all other laws which were in conflict with them. In Jindu v. State, AIR 1957 Him Pra 61 a Judicial Commissioner of that Court also held that ROBKARS issued by the Raja of Bilaspur in 1982 and 1995 B. laving down the procedure in cases of escheat were law and forcible upon the subjects. Therefore, the PATTA granted by the Ruler of Madhan State which sanctioned the adoption, really laid down law for the predecessors of the parties of the present suit. The adoption was held valid and being founded on the legislative power of the Ruler who was supreme cannot be questioned by any party.
8. In this view of the matter the two Courts below were right in holding that the adoption was proved by the documents Ex. D. A. and D. B. and no exception can be taken on the ground that a provision of Hindu law was not observed.
9. Regarding adverse possession, Kanshi Ram could have only perfected his title by causing ouster of the right and title of the other co-owners. This ouster of other co-sharers could not be proved merely by remaining in possession or by secret hostile animus on his own part in derogation of the other coheirs’ 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. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse session. In the instant suit there was absolutely no evidence of such ouster of the other co-heirs at the instance of Kanshi Ram even at the mutation stage. It appears Kanshi Ram was unsuccessful to get an entry exclusively in his name. The property was divided in equal shares between Kanshi Ram and his brothers on one side and the plaintiffs on the other-side. Therefore, there is no evidence regarding open assertion of hostile title on the part of Kahshi Ram. If he was in exclusive possession, that he was, on behalf of other co-owners. Therefore, the plea regarding adverse possession was rightly rejected by the two Courts below.
10. As regards forfeiture by SARBHADAR. there was hardly any evidence. The plaintiffs had landed property
both in Keonthal and Madhan States. As such being governed by the custom to perform SARBHADAR both at Keonthal and at Madhan, if they did that at Keonthal when the Ruler of that place died, that would not lead to forfeiture of their landed property at Madhan. Therefore the custom regarding SARBHADAR was neither proved nor did it, deprive the plaintiffs of their share in the property at Madhan.
11. In this view of the matter I do not find any ground to sustain the pleas raised by the plaintiffs or by the defendants in their appeal and cross objections. The decision of the two Courts below appears to be correct and need not be set aside. The appeal as well as cross objections are dismissed. However, the parties are left to bear their own costs.
