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By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff’s claim to establish his title by adverse possession. =Md. Mohammad Ali (Dead) By LRs. RESPONDENT: Sri Jagadish Kalita & Ors. = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=19379

By reason of the Limitation Act, 1963 the legal position as was obtaining under
the old Act underwent a change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his title and it would
no longer be necessary for him to prove, unlike in a suit governed by Articles
142 and 144 of the Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it would be for the
defendant so to prove if he wants to defeat the plaintiff’s claim to establish
his title by adverse possession.

Adverse possession-Ouster by co-sharer-Plea of-Held, long and continuous possession by itself would not constitute adverse possession- Possession of a property belonging to several co-sharers by one co-sharer, shall be deemed that he possesses the property on behalf of other co-sharers, unless there has been a clear ouster by denying the title of other co-sharers-A co-sharer becomes a constructive trustee of other co-sharers. Code of Civil Procedure, 1908-Section 100-Substantial questions of law-Non formulation of-Certain aspects requiring closer examination by High Court- Matter remitted back for fresh consideration. The original owner transferred the premises in question to two brothers who, thus, owned and possessed the same. By a registered deed of partition, the structures standing on the premises being holding Nos. 522 and 523 were divided into two equal halves. Sons of one of the brothers allegedly amalgamated both the said holdings and got them registered in his name as holding No. 121 in the records of Municipality. Subsequently, he sold holding No. 522 and leased out portion of holding no. 523 in favour of respondent No. 3. Upon the death of the original owner, his sons got the lands mutated in their favour. The legal heirs and representatives of the other brother transferred their possessory rights in holding No. 523 including the house to appellant for valuable consideration. At a later stage, the legal representatives of the original owner transferred their right, title and interest in old holding No. 523 to the appellant for a consideration. Thus, upon purchase of the premises in question, the appellant called upon respondent No. 3 to pay rent to him. As respondent No. 3 did not pay rent to the appellant, he filed a money suit for recovery of arrears of rent, which was dismissed. An appeal preferred thereagainst by the appellant was also dismissed. Later on, the appellant filed a suit, inter alia, praying for a decree for declaration of his right, title and interest over the premises in question and for ejectment of respondent No. 3. The Trial Court decreed the said suit against which first appeal was, preferred in the Court of District Judge by some of the respondents. The first Appellate Court invoked the principle of `caveat emptor’ and allowed the appeal by respondents holding that the appellant had no right, title and interest over the land in question. Second appeal filed by appellant before High Court was dismissed. Hence the present appeal. On behalf of the appellants, it was contended that first appellate court as also the High Court have committed a manifest error in dismissing the suit hodling that the respondents perfected their title by adverse possession, although the contesting respondents did not raise any plea nor proved ouster of other co-sharers. On behalf of the respondents, it was contended that appellant having lost the money suit filed by him, the question of title could not have been permitted to be reagitated and was barred under the principles of res judicata; that respondent No. 1 alone having all along been possessing the premises by payment of rent to the municipal authorities, must be held to have acquired title by adverse possession.

Citation: 2003(4 )Suppl.SCR325 ,2004(1 )SCC271 ,2003(8 )SCALE356 ,2003(8 )JT26
Court Name: Supreme Court

Allowing the appeal and remitting the matter back to High Court, the Court HELD : 1.1. The proposition of law relating to ouster of a co-sharer vis-a- vis adverse possession had been overlooked by the High Court. Therefore, the matter should be considered afresh by the High Court. [336-H, 338-B] 1.2. Possession of a property belonging to several co-sharers by one co- sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers; and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. For the purpose of proving adverse possession/ouster the defendant must also prove animus possidendi. Long and continuous possession by itself would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer becomes a constructive trustee of other co-sharer. [334-E-F, 333-H, B-C] Karbalai Begum v. Mohd. Sayeed and Another, [1980] 4 SCC 3961; Annasaheb Bapusaheb Patil and OTHERS Etc, Etc. v. Balwant alias Balasaheb Babusaheb Patil (Dead) by LRS. and Heirs and OTHERS Etc Etc., [1995] 2 SCC 543; Vidya Devi alias Vidya Vati (Dead) by LRS. v. Prem Prakash and OTHERS , [1995] 4 SCC 496; Darshan Singh and OTHERS v. Gujjar Singh (Dead) by LRS. and Others, [2002] 2 SCC 62, relied on. 1.3. The respondents have failed to raise any plea of ouster. No finding has been arrived at by the High Court as to from which date they began to possess adversely against the plaintiff or his predecessOTHERS in interest. Mere non-payment of rents and taxes may be one of the factOTHERS for proving adverse possession but cannot be said to be the sole factor. [343-C] 2. There are also certain other aspects of the matter which could not be overlooked and probably would require closer examination by the High Court, namely, whether registered deed of partition was acted upon; the effect of amalgamation and whether amalgamation of the two holdings into one, by son of one of the co-owners was within the knowledge of heirs of other co- owners; nature and extent of right transferred to appellant by heirs of one of the co-owners and circumstances in which mutation was done in favour of heirs of original holder when the original holder had already transferred his entire right, title and interest to the two brOTHERS The High Court while determining the question should have formulated substantial questions of law, as aforesaid, in terms of Section 100 of the Code of Civil Procedure, 1908. Therefore, the matter should be considered afresh by the High Court. [337-C-H, 338-A, B] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12450 of 1996.

 

CASE NO.:
Appeal (civil) 12450 of 1996

PETITIONER:
Md. Mohammad Ali (Dead) By LRs.

RESPONDENT:
Sri Jagadish Kalita & Ors.

DATE OF JUDGMENT: 07/10/2003

BENCH:
Ashok Bhan & S.B. Sinha.

JUDGMENT:
J U D G M E N T

 

S.B. SINHA, J :
This appeal is directed against a judgment and decree dated
20.5.1991 passed by Gauhati High Court dismissing the Second Appeal
preferred by the appellant herein.

BACKGROUND FACT
Md. Sadagar Sheikh was the original owner of the suit premises.
He transferred the same to Gayaram Kalita and Kashiram Kalita. The
premises in suit, thus, owned and possessed by the said Gayaram Kalita
and Kashiram Kalita, who were brothers. By reason of a registered deed
of partition dated 1.12.1938, the structures standing on the land in
suit being holding Nos.522 and 523 of the Nalbari Municipality were
divided into half and half, each measuring 5 = lechas. Prafulla Kalita,
son of Gayaram Kalita, allegedly, amalgamated both the said holdings and
got them registered in his name as holding No. 121 in the records of
Nalbari Municipality. Holding No. 522 was sold and portion of holding
No. 523 was leased out in favour of the respondent No. 3 by Prafulla
Kalita.
Upon the death of Md. Sadagar Sheikh, however, his sons got the
lands mutated in their favour in mutation case No. 414/70-71 in terms
of an order of the Sub Divisional Officer of the Nalbari Municipality.

By reason of a registered deed of sale dated 28.11.1972, the
defendants Nos. 7, 8 & 9 transferred their possessory rights in holding
No. 523 including the house to the appellant for valuable consideration.
On or about 24.9.1977, the legal representatives of Md. Sadagar Sheikh,
being defendant Nos. 10, 11 & 12 transferred their right, title and
interest in old holding No. 523 to the appellant herein on receipt of
the consideration of a sum of Rs. 5000/-. Upon purchase of the suit
premises in the manner aforementioned, the appellant herein called upon
the respondent No. 3 to pay rent to him which was denied.

LEGAL PROCEEDINGS ;

Although the name of the plaintiff was initially mutated in
Nalbari Municipality, the same was cancelled by an order dated
26.9.1977. The taxes deposited by the plaintiff were directed to be
refunded. As the respondent No. 3 did not pay rent to the appellant, he
filed a money suit for recovery of arrears of rent being No. 83 of 1978
in the Court of Munsif which was dismissed. An appeal preferred
thereagainst by the appellant was also dismissed. In view of the fact
that the name of the appellant was not ultimately mutated in the records
of the Municipality as also in view of dismissal of the said money suit,
the suit was filed wherein the appellant prayed for the following
reliefs :

“(i) For a decree for declaration of right,
title and interest of plaintiff over the suit
land and the house standing thereon.

(ii) A decree may also be passed against the
defendant No. 4 for ejectment from the suit
house by removing its goods and articles
therefrom and also a decree for mesne profit of
Rs. 4350.00 against defendant No. 4.

(iii) A decree for issuing precept to the
Nalbari Municipal Board for mutating the name of
the plaintiff on holding No. 121 (kha) the suit
house.

(iv) The cost of the suit may be decreed
against the contesting defendants.

(v) Any other relief to which the plaintiff is
entitled to may also be decreed.”

 

In the said suit, there were three sets of defendants. The first
set being defendants No. 1, 2, 3, 5 & 6 were the legal heirs and
representatives of late Prafulla Kalita. The second set being
defendants No. 7, 8 & 9 were the legal heirs and representatives of late
Kashi Ram Kalita and the third set being defendants No. 10, 11 & 12 were
the legal heirs and representatives of late Md. Sadagar Sheikh. The
defendant No. 4 (Respondent no.3 herein) was a cooperative society which
was inducted as a tenant by Prafulla Kalita. In the said suit the
contesting respondents herein inter alia raised a plea of adverse
possession alleging :

“That right of adverse possession had accrued
upon the predecessor-interest, and these
defendant, as these defendants and their
predecessor interest, had their peaceful and
uninterrupted possession for more than 40 years,
adversely to the interest of defendant No. 10,
11, 12 and their predecessor interest.”
They further set up a plea that the suit house was not actually
partitioned by metes and bounds by and between the Kalita brothers nor
separate physical possession thereof was effected and in fact Kashiram
Kalita and Gayaram Kalita orally gifted the said plot to Prafulla Kalita
and since then he had been in exclusive and peaceful possession thereof
as owner.
The learned Trial Court in view of the rival contentions
aforesaid, inter alia, framed the following issues:
“3. Whether the plaintiff has right, title and
interest over the suit land as well as the house
thereon?

4. Whether there exists a relationship of
landlord and tenant in between the plaintiff and
the defendant No. 4. If so, whether the
plaintiff is entitled to the rent legally due by
the defendant No. 4?

5. Whether the suit land together with the
house was originally gifted by late Gaya Ram and
Kashi Ram to late Prafulla Kalita as alleged in
the W.S.?”
The Trial Court decreed the said suit whereagainst Jagdish Kalita,
Dipak Kalita and the Secretary of the Cooperative Society preferred
appeal in the Court of District Judge, Nalbari which was marked as T.A.
No. 69 of 1986. The first appeallate Court upon consideration of the
materials on record held that the appellants therein could not prove the
factum of oral gift. It was, however, observed:

“But it may so happen that some sort of mutual
arrangement took place as Gaya Ram and Kashi Ram
left Nalbari for Lumding in quest of their
fortune.”
The first Appellate Court furthermore held that the burden lay
heavily on the plaintiff to prove his title and possession within 12
years since before the date of filing of the suit. The learned Court of
first appeal invoked the principle of ‘caveat emptor’ and opined:

“First he purchased the suit holding. Then he
inquired about the title and found that it was
recorded in the name of Prafulla. The plaintiff
dared to plunge in the cross currents of legal
intricacies. But he could not swim across and
then he sank. The suit is hit by Article 65 of
the Limitation Act. Hence all these three
issues are decided against the plaintiff.”
As regard Issue No. 4 it was held that the appellant was not
entitled to claim any rent from respondent No. 3 herein.
On a second appeal filed by the appellant herein the High Court by
its judgment and decree dated 20th May, 1991 dismissed the same holding:
“The learned District Judge having found that
Prafulla did not share the rent with prof.
Defendants 7, 8 and 9 it cannot be said that
these defendants were still co-sharers. Mr.
T.S. Deka, learned counsel for the respondents
has shown from the records that by Exhibits 12
and 13 Kashiram paid Municipal taxes only upto
the year 1945 and this is not disputed by Mr.
Sarma. There was, therefore, an open ouster by
Prafulla since 1950. The plaintiff brought the
suit in 1979. The case relied on by Mr. Sarma
does not apply to the facts of the instant case.
The learned District Judge, therefore, was
perfectly correct in holding that plaintiff’s
suit was barred by Schedule 65 of the Limitation
Act.”

(Emphasis supplied)
The appellant is, thus, before us.
This Court by an order dated 16.8.1986 directed the appellant to
bring the plaint and written statement filed by the parties on records
so as to enable it to decide whether plea of adverse possession taken by
the respondent is sustainable. Pursuant thereto and in furtherance
thereof the appellants have filed copies of plaint and the written
statement.
SUBMISSIONS :

Mr. Mehta, learned counsel appearing on behalf of the appellant
would submit that the parties hereto admittedly been co-sharers, the
first appellate court as also the High Court have committed a manifest
error in dismissing the suit holding that the respondents perfected
their title by adverse possession, although the contesting respondents
did not raise any plea nor proved ouster of other co-sharers.
Mr. Amlan Kumar Ghosh, learned counsel appearing on behalf of the
respondents, on the other hand, would support the judgment of the High
Court contending that having regard to the fact that the plaintiff lost
in Money suit No. 83 of 1978 in the Court of Munsif, the question of
title could not have been permitted to be reagitated. The said issue,
the learned counsel would contend, was barred under the principles of
res judicata. The learned counsel would submit that having regard to the
fact that the respondent no.1 alone having all along been possessing the
suit premises by payment of rent to the municipal authorities, must be
held to have acquired title by adverse possession.
LEGAL PRINCIPLES RELATING TO OUSTER AND ADVERSE POSSESSION :

The fact of the matter, as noticed hereinbefore, is not much in
dispute. If it be held that the two brothers Gayaram Kalita and
Kashiram Kalita partitioned the properties in question; the heirs and
legal representatives of Gayaram Kalita ceased to have any right, title
and interest in respect of the share held by Kashiram Kalita. The
defendants No. 7, 8 & 9 had, therefore, a transferable title, unless the
same became extinguished.

On the other hand, if no partition by meets and bounds took
place, the respondents herein were bound to plead and prove ouster of
the plaintiff and/ or his predecessors’ interest from the land in
question. For the said purpose, it was obligatory on the part of the
respondents herein to specifically plead and prove as to since when
their possession became adverse to the other co-sharers. Moreover, if
the possession of Prafulla Kalita was permissive or he obtained the
same pursuant to some sort of arrangement as had been observed by the
High Court, the plea of adverse possession would fail.
Long and continuous possession by itself, it is trite, would not
constitute adverse possession. Even non-participation in the rent and
profits of the land to a co-sharer does not amount to ouster so as to
give title by prescription. A co-sharer, as is well settled, becomes a
constructive trustee of other co-sharer and the right of the appellant
and/or his predecessors in interest would, thus, be deemed to be
protected by the trustee. As noticed hereinbefore, the respondents in
their written statement raised a plea of adverse possession only against
the third set of the defendants. A plea of adverse possession set up by
the respondents, as reproduced hereinbefore, do not meet the
requirements of law also in proving ouster of a co-sharer. But in the
event, the heirs and legal representatives of Gayaram Kalita and
Kashiram Kalita partitioned their properties by meets and bounds, they
would cease to be co-sharers in which event a plea of adverse possession
as contra distinguished from the plea of ouster could be raised. The
courts in a given situation may on reading of the written statement in
its entirety come to the conclusion that a proper plea of adverse
possession has been raised if requisite allegations therefor exist. In
the event the plaintiff proves his title, he need not prove that he was
in possession within 12 years from the date of filing of suit. If he
fails to prove his title, the suit fails.
By reason of Limitation Act, 1963 the legal position as was
obtaining under the old Act underwent a change. In a suit governed by
Art. 65 of the 1963 Limitation Act, the plaintiff will succeed if he
proves his title and it would no longer be necessary for him to prove,
unlike in a suit governed by Articles 142 and 144 of the Limitation Act,
1908, that he was in possession within 12 years preceding the filing of
the suit. On the contrary, it would be for the defendant so to prove
if he wants to defeat the plaintiff’s claim to establish his title by
adverse possession.
For the purpose of proving adverse possession/ ouster the
defendant must also prove animus possidendi.

However, in the event, the case of the defendant was that the
predecessors in interest of the plaintiff ceased to be his co-sharers
for any reason whatsoever, it was not necessary for them to raise a
plea of ouster. We may further observe that in a proper case the court
may have to construe the entire pleadings so as to come to a conclusion
as to whether the proper plea of adverse possession have been raised in
the written statement or not which can also be gathered from the
cumulative effect of the averments made therein.

The respondents herein, as noticed hereinbefore, has failed to
raise any plea of ouster. No finding has been arrived at by the High
Court as to from which date they began to possess adversely against the
plaintiff or his predecessors in interest. Mere non-payment of rents
and taxes may be one of the factors for proving adverse possession but
cannot be said to be the sole factor. The High Court has not assigned
any reason as to how there had been an open ouster by Prafulla Kalita
since 1950.
Furthermore, the first appellate court applied a wrong principle
of law in relation to interpretation of Article 65 of the Limitation
Act, 1963. The High Court fell into the same error.

Possession of a property belonging to several co-sharers by one
co-sharer, it is trite, shall be deemed that he possesses the property
on behalf of the other co-sharers unless there has been a clear ouster
by denying the title of other co-sharers and mutation in the revenue
records in the name of one co-sharers would not amount to ouster unless
there is a clear declaration that the title of the other co-sharers was
denied and disputed. No such finding has been arrived at by the High
Court.
In the instant case, the dispute between the parties as regard
mutation of the name of the appellant was finally decided, as noticed
hereinbefore, only on 26.9.1977. The Money Suit filed by him was also
dismissed by the Appellate Court on 19.5.1979. The appellant instituted
title suit on 24.10.1979. In that view of the matter, the question of
the respondents acquiring title by ouster of the appellant on the basis
of the order of the Municipal Authorities in the mutation proceedings
does not arise.
So far as submission of Mr. Ghosh to the effect that the decision
in the money suit shall operate as res judicata is stated to be
rejected.

In the aforementioned suit, the only issue which could be raised
and determined was as to whether respondent No. 3 was a tenant of the
plaintiff. As the plaintiff or his predecessors in interest failed to
show that respondent No. 4 was inducted by them, his claim for arrears
of rent was rejected but the Court while determining the said issue
could not have gone into a pure question of title as well as the
question as to whether the respondents herein acquired title by adverse
possession.

SOME CASE LAWS ON THE QUESTION OF OUSTER/ADVERSE POSSESSION :
In Karbalai Begum vs. Mohd. Sayeed and Another [(1980) 4 SCC 396],
the law has been stated by this Court in the following terms :
“…It is well settled that mere non-
participation in the rent and profits of the
land of a co-sharer does not amount to an ouster
so as to give title by adverse possession to the
other co-sharer in possession…”
In Annasaheb Bapusaheb Patil and Others etc. etc. Vs. Balwant
alias Balasaheb Babusaheb Patil (Dead) by LRs. and Heirs and Others
etc.etc. [(1995) 2 SCC 543], this Court held:
“15. Where possession can be referred to a
lawful title, it will not be considered to be
adverse. The reason being that a person whose
possession can be referred to a lawful title
will not be permitted to show that his
possession was hostile to another’s title. One
who holds possession on behalf of another, does
not by mere denial of that other’s title make
his possession adverse so as to give himself the
benefit of the statute of limitation. Therefore,
a person who enters into possession having a
lawful title, cannot divest another of that
title by pretending that he had no title at
all.”

In Vidya Devi alias Vidya Vati (Dead) by LRs. Vs. Prem Prakash and
Others [(1995) 4 SCC 496] this Court upon referring to a large number of
decisions observed:

“27…it will be seen that in order that the
possession of co-owner may be adverse to others,
it is necessary that there should be ouster or
something equivalent to it. This was also the
observation of the Supreme Court in P. Lakshmi
Reddy case which has since been followed in
Mohd. Zainulabudeen v. Sayed Ahmed Mohideen.
28. ‘Ouster’ does not mean actual driving out of
the co-sharer from the property. It will,
however, not be complete unless it is coupled
with all other ingredients required to
constitute adverse possession. Broadly speaking,
three elements are necessary for establishing
the plea of ouster in the case of co-owner. They
are (i) declaration of hostile animus, (ii) long
and uninterrupted possession of the person
pleading ouster, and (iii) exercise of right of
exclusive ownership openly and to the knowledge
of other co-owner. Thus, a co-owner, can under
law, claim title by adverse possession against
another co-owner who can, of course, file
appropriate suit including suit for joint
possession within time prescribed by law.”

Yet again in Darshan Singh and Others Vs. Gujjar Singh (Dead) by
LRs. and Others [(2002) 2 SCC 62], it is stated :
“…It is well settled that if a co-sharer is in
possession of the entire property, his
possession cannot be deemed to be adverse for
other co-sharers unless there has been an ouster
of other co-sharers.”
It has further been observed that :

“In our view, the correct legal position
is that possession of a property belonging to
several co-sharers by one co-sharer shall be
deemed that he possesses the property on behalf
of the other co-sharers unless there has been a
clear ouster by denying the title of other co-
sharers and mutation in the revenue records in
the name of one co-sharer would not amount to
ouster unless there is a clear declaration that
title of the other co-sharers was denied.”
QUESTIONS OVERLOOKED BY THE HIGH COURT :

The proposition of law relating to ouster of a co-sharer vis-`-vis
adverse possession had been overlooked by the High Court. There are
also certain other aspects of the matter which could not be overlooked
and probably would require closer examination by the High Court.

The High Court while determining the question should have
formulated substantial questions of law in terms of Section 100 of the
Code of Civil Procedure, 1908. In absence of formulation of such
substantial questions of law, probably the High Court committed the
errors as pointed out hereinbefore.
Prima facie the questions of law which arise for consideration are:

(i) Whether the registered deed of partition was acted upon so as
to cause disruption of the joint family?
(ii) Whether the amalgamation of holding Nos. 522 and 523 as one
holding being holding no. 121 at the instance of Prafulla
Kalita was to the knowledge of the heirs and legal
representatives of Gayaram Kalita or the third set of the
defendants and, if the answer to the aforementioned question is
in affirmative, whether Prafulla Kalita started possessing the
entire house standing on the plot in question being holding No.
522 and 523 exclusively pursuant to or in furtherance of the
said order; or such possession was referable only to some
adjustment or permission of the heirs of Gayaram Kalita?
(iii) What was nature and extent of right transferred to the
appellant by the heirs of Kashiram Kalita? (Such a question
arises as the appellants in their list of dates stated that
only possessory rights were transferred.)

(iv) Whether the plaintiff derived any right title and interest in
relation to the suit property by reason of deed of sale
executed by the heirs of Md. Sadagar Sheikh?

(v) If Md. Sadagar Sheikh had transferred his entire right, title
and interest in favour of two brothers by reason of the
aforementioned deed of sale, under what circumstances the names
of defendants No. 10, 11 & 12 were mutated in the records of
Nalbari Municipality in the year 1971.
These questions were required to be considered upon by the Trial
Court as also the Court of first Appeal so as to arrive at a correct
decision. However, we hasten to add that we have ourselves not gone
into the materials on record and thus have recorded our tentative
opinion on the basis of the judgment of the High Court and the Court of
Appeal. It would, thus, be open to the High Court to consider the
matter on its own merit.

CONCLUSION :

We are, therefore, of the opinion that the matter should be
considered afresh by the High Court which may proceed to decide the
matter on framing proper substantial questions of law arising in the
second appeal. The judgment of the High Court is, therefore, set aside.
This appeal is allowed. However, in the facts and circumstances
of this case, there shall be no order as to costs.

 

 

 

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