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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.
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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
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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
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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
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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.
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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
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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
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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.
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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.
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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
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