//
you're reading...
legal issues

Suit: Suit for possession and mesne profits – One brother entrusting his share of property in land and house to another brother of looking after the property and also to give him the usufructs/income therefrom – On demand, the other brother refusing to give possession and mesne profits – Trial Court decreeing the suit for possession and mesne profits – Upheld by Appellate Court – High Court setting aside the concurrent findings of facts – On appeal, Held: The High Court has not examined the pleadings of the parties and evidence on record in proper perspective – The defendant is guilty of taking entirely dishonest defences before the trial Court – Court should always effectively discard such a dishonest conduct – The defendant did not have any case either in law or equity – Impugned judgment of High Court cannot be sustained – Hence set aside. `S’ and `J’ are two brothers who had inherited some agricultural land and an ancestral house from their father. They were jointly cultivating the land and occupied the ancestral house jointly. `S’ went to his maternal uncle’s house to look after his property, and requested his brother `J’ to look after his share of the property and to give him to usufruct or income from his share of the property. `S’ returned back from his uncle’s house and demanded the possession of his share in the property and the income derived therefrom, but `J’ did not pay any attention to his request. `S’ gave a notice to `J’ and since there was no response, he filed a civil suit claiming possession and mesne profits. The Civil Judge decreed the suit. The First Appellate Court upheld the judgment of the trial court and observed that the trial court was right in holding it was not proved that the defendants’s title over the suit land has been perfected by adverse possession and ouster of the plaintiff to his knowledge for more than 12 years. On second appeal, High Court set aside the concurrent findings of facts of the courts below. Hence the appeal. =Allowing the appeal, the Court HELD: 1.1. The High Court erroneously set aside the concurrent findings of facts of the two well reasoned judgments of the courts below. [Para 15] [417-C] 1.2. The High Court has not examined the pleadings of the parties and evidence on record in proper perspective. The High Court ought to have appreciated that the plaintiff while leaving the village asked his brother (defendant) that he should look after the land which was in the share of the plaintiff also and keep the account of usufruct or income from the property of the plaintiff. The plaintiff had always remained a co-owner of the property in question. While leaving the village he asked his brother to look after the property in his absence. From that it can never be construed that the plaintiff at any point of time did not remain co-owner of the property or surrendered his interest in the property. The defendant is guilty of taking entirely dishonest defences before the trial court. The court should always effectively discard such a dishonest conduct. [Para 14] [416-G-H; 417-A-B] 1.3. The impugned judgment of the High Court is wholly unsustainable, illegal, perverse and against the norms of any civilized society. The judgment of the High Court has demolished the entire fiber of joint family system of our country and has put premium on the dishonesty of the defendant and the same deserves to be set aside. It is unfortunate if one brother cannot trust his own brother even to this extent then how can peace and tranquility prevail in the society. The saddest part is that the High Court while setting aside the concurrent findings of the two courts has put judicial seal of approval on such a dishonest conduct of the defendant. The impugned judgment of the High Court cannot be sustained and is accordingly set aside. The defendant did not have any case either in law or equity. [Para 16] [417-D-F] P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314 and Corea v. Appuhamy 1912 AC 230 (C), referred to. Case Law Reference: AIR 1957 SC 314 referred to Para 7 1912 AC 230 (C) referred to Para 7 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 829 of 2002. From the Judgment & Order dated 24.08.2000 of the High Court of Madhya Pradesh, Indore Bench in Civil Second Appeal No. 103 of 1982. K.K Rai and Amboj Kumar (for Krishnanand Pandeya) for the Appellants. B.S. Banthia and Vikas Upadhyay for the Respondents.

Madhya Pradesh Vidhan Sabha

Image via Wikipedia

 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.829 OF 2002

Bonder & Anr. ... Appellants

 Versus

Hem Singh (dead) by LRs. & Ors. ... Respondents

 JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and

decree passed by the High Court of Madhya Pradesh, Indore

Bench at Indore in Civil Second Appeal No. 103 of 1982

dated 24.8.2000.

2. In order to appreciate the controversy involved in the

case, it is necessary to recapitulate the basic facts of the

case.
 2

3. The appellants' father Sukhram (since deceased) filed a

suit bearing Civil Original Suit No. 230A of 1972 before the

learned Fifth Civil Judge, Indore, Madhya Pradesh against

Jagannath (since deceased). It was pleaded, inter alia, that

Sukhram (plaintiff) and Jagannath (defendant) were

brothers and sons of Narsingh, who died leaving behind

22.39 acres of agricultural land and an ancestral house in

village Kadwali Khurd. The said land was jointly cultivated

and the house was jointly occupied by both the brothers.

Sukhram went to his maternal uncle's house to look after

his property. Sukhram before leaving the village went to his

brother Jagannath and requested him that he would be

looking after his maternal uncle's property and till he

returned to his village, the property may be looked after by

him (Jagannath) and he be given the usufruct or income

from his share of the property.

4. On return, Sukhram demanded the possession of the

property of his share and also demanded the income derived

from the said property from Jagannath, but he did not pay

any attention to his request. Ultimately, Sukhram had to

issue a notice on 13.6.1971 to Jagannath. The said notice
 3

was served upon Jagannath on 19.6.1971 but even then he

did not give possession of the land and the income from it to

Sukhram during the period when he was away. Ultimately,

Sukhram filed a civil suit and claimed possession and

future mesne profits at the rate of Rs.1,000/- per year and

Rs.8,000/- for the past mesne profits.

5. In his written statement, defendant Jagannath

surprisingly taken following pleas that:-

(a) the parties were not brothers, but step brothers;

(b) the house in dispute was in a dilapidated condition at

the time of death of his father;

(c) the property was not partible and the plaintiff Sukhram

was not entitled to any share in it. It was also incorporated

in the written statement that father of the parties had taken

loan from different persons and had created a charge of

Rs.5,000/- over the land and the house and that it was not

possible to discharge the debt from the income of the said

property and, therefore, immediately after the death of their

father, the plaintiff Sukhram went to his in-law's house and

started living there. It was further stated by defendant
 4

Jagannath that he discharged the loan from the earnings of

the property, income from the service and business of cattle

and while doing so rebuilt the house and developed the

property. He further stated that he also sunk a well

spending a sum of Rs.4,000/-. Sukhram came back to his

village and demanded his share, but Jagannath did not

accede to his request and turned him out. Defendant

Jagannath pleaded absolute ouster of Sukhram and claimed

that he had perfected his title by adverse possession. In the

alternative, it was also submitted that as he had spent

money for construction of the house, development of the

land and sinking of the well, in case a decree is to be

granted in favour of the plaintiff, half of the expenses be

given to him. He, however, prayed for dismissal of the suit.

6. The learned Civil Judge decreed the suit in favour of

plaintiff Sukhram. The plaintiff's case is crystal clear that

he had entrusted his share of immovable properties to his

brother Jagannath to look after it and return the same to

him on his return along with the usufruct or income derived

from his share of the immovable properties. The evidence
 5

does not reveal that the plaintiff left the suit property with a

view to permanently abandoning it.

7. The first Appellate Court relied upon the decision in P.

Lakshmi Reddy v. L Lakshmi Reddy AIR 1957 SC 314 at

para 4, wherein this Court referred to the decision in Corea

v. Appuhamy 1912 AC 230 (C). In the said case the

principle of law has been clearly enunciated. The relevant

portion of the said judgment reads as under:

 "It is well settled that in order to establish
 adverse possession of one co-heir as against
 another it is not enough to show that one of them
 is in sole possession or 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. 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-heirs title. It is
 a well 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."

8. This principle has been consistently applied by the

Indian courts.
 6

9. The first Appellate Court also held that even in the

revenue records the name of plaintiff Sukhram continues to

show that the defendant Jagannath never considered the

plaintiff Sukhram as ousted and not continuing as a co-

heir.

10. The first Appellate Court upheld the judgment of the

trial court and observed that the trial court was right in

holding that it is not proved that the defendant's title over

the suit land has been perfected by adverse possession and

ouster of the plaintiff to his knowledge for more than 12

years. The first Appellate Court dismissed the appeal with

costs and the preliminary decree passed by the trial court

was confirmed.

11. The plaintiff respondent, aggrieved by the judgment of

the first Appellate Court (Eighth Addl. District Judge,

Indore) preferred second appeal before the High Court. The

High Court by the impugned order set aside the concurrent

findings of facts of the courts below and allowed the appeal.

The High Court, while setting aside the concurrent findings

of facts of courts below, gave very unusual, strange and
 7

totally unsustainable reasonings. The High Court observed

that the plaintiff, according to his own pleadings, left the

village somewhere between 1935-40 and received his share

in the property up to the year 1950 and thereafter all his

rights were denied and defendant Jagannath asserted his

absolute right in the property. According to the impugned

judgment of the High Court, the two courts had not taken

into consideration the pleadings of the parties and the

admissions made by the plaintiff which have important

bearing on the facts of the case and the appreciation of the

evidence.

12. The High Court held that the findings recorded by the

two courts are not only wrong and illegal but also perverse.

The High Court in the impugned judgment also observed

that the plaintiff, though, has proved that he was the joint

owner of the property, but has failed to prove that he

continued to be the joint owner of the property and had no

knowledge about the hostility asserted by defendant

Jagannath, and his exclusion. It was further held that the

defendant was successful in proving the exclusion of the

plaintiff and the said exclusion was to the knowledge of the
 8

plaintiff. According to the High Court, the suit of the

plaintiff was patently barred by limitation.

13. The plaintiff Sukhram, aggrieved by the said judgment

of the High Court, has preferred this appeal under Article

136 of the Constitution.

14. The High Court has not examined the pleadings of the

parties and evidence on record in proper perspective. The

High Court ought to have appreciated that the plaintiff while

leaving the village asked his brother (defendant) that he

should look after the land which was in the share of the

plaintiff also and keep the account of usufruct or income

from the property of the plaintiff. The plaintiff had always

remained a co-owner of the property in question. While

leaving the village he asked his brother to look after the

property in his absence. From that it can never be

construed that the plaintiff at any point of time did not

remain co-owner of the property or surrendered his interest

in the property. The defendant is guilty of taking entirely

dishonest defences before the trial court. The court should

always effectively discard such a dishonest conduct.
 9

15. In our considered opinion, the High Court erroneously

set aside the concurrent findings of facts of the two well

reasoned judgments of the courts below.

16. The impugned judgment of the High Court is wholly

unsustainable, illegal, perverse and against the norms of

any civilized society. The judgment of the High Court has

demolished the entire fiber of joint family system of our

country and has put premium on the dishonesty of the

defendant and the same deserves to be set aside. It is

unfortunate if one brother cannot trust his own brother

even to this extent then how can peace and tranquility

prevail in the society? The saddest part is that the High

Court while setting aside the concurrent findings of the two

courts has put judicial seal of approval on such a dishonest

conduct of the defendant (Jagannath). The impugned

judgment of the High Court cannot be sustained and is

accordingly set aside. The defendant did not have any case

either in law or equity.
 10

17. This appeal is allowed with costs which is quantified at

Rs.50,000/- to be paid by the respondent to the appellant

herein within two months.

 ........................................J.
 (Dalveer Bhandari) .......................................J.
 (Dr. Mukundakam Sharma)
New Delhi;
May 15, 2009

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,881,042 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: