Patna High Court
Hazari Mull Jain vs Md. Nazir And Ors. on 23 April, 1971
Equivalent citations: AIR1973PAT92, AIR 1973 PATNA 92
JUDGMENT B.D. Singh, J.
1. This appeal by Hazari Mull Jain, adopted son of the original plaintiff. Ladu Lal Jain, is directed against the judgment and decree of the lower appellate Court affirming those of the trial Court in title suit No. 8/30 of 1962/67, of the Additional Subordinate Judge, Ranchi. dismissing the suit of the plaintiff. In order to appreciate the question of law involved in the appeal if, is necessary to state briefly the facts of the case.
2. The original plaintiff had Instituted the said suit on the 18th January, 1962 against Md. Nazir. Md. Azim alias Md. Aziz and Md. Ismail (defendant Nos. 1 to 3 respectively) for partition of a house constructed on plot No. 438 bearing holding No. 740 A ward No. 2 of the Ranchi Municipality. The said house originally belonged to one Mt. Nhalia. On the 28th June, 1920. she sold the same to one Mt. Lakhi. Defendant Nos. 1 and 2 are sons of Mt. Lakhi from her second husband Sk. Maiu, whereas defendant No. 3, Ismail (who died when the suit was pending before the trial Court and whose heirs were brought on record) was son of Lakhi from her former husband. According to the plaintiff, on the 13th March, 1926. Lakhi made a gift of the said house to defendants 1 and 2. Thereafter on the 11th September, 1944, defendants 1 and 2 sold by a registered sale deed their 2/3rd share to the original plaintiff Ladulal Jain who accordingly came in possession over the same. The plaintiff further pleaded that since he was feeling difficulty in remaining joint he demanded partition of the premises, and on refusal by the defendants he instituted the suit
3. A written statement was filed on behalf of defendant No. 1 wherein he admitted the plaintiff's case regarding acquisition of the property by Lakhi and the subsequent gift by her to defendants 1 and 2. It was further alleged that Ismail was the tenant of defendants 1 and 2 in the disputed house and that they (defendants 1 and 2) had executed a sale deed dated the 11th September, 1944 in favour of the plaintiff, but it was never acted upon, as the plaintiff did not pay the consideration money to them, and further the plaintiff never came in possession of the disputed house, which was coming in possession of defendants 1 and 2 from the date of gift. It was therefore, asserted that the plaintiff was not entitled to any decree for partition.
4. A separate written statement was filed by Ismail, defendant No. 3 and after his death his heirs adopted the same. The defence of defendant No. 3, as disclosed in the cause of action, and the suit was that the suit was barred by limitation and adverse possession. The further defence was that the disputed house was purchased by defendant No. 3 in the benami name of his mother. Lakhi. and therefore Ismail was the true owner. It was Ismail who along with his family members, lived in exclusive possession of the disputed house. Neither defendants Nos. 1 and 2 nor Lakhi, nor the plaintiff ever came in possession either jointly or exclusively. Ismail and his family members have been continuing in possession openly and to the knowledge of all in assertion of their own right. It was further pleaded that in 1926 defendants I and 2 had sent a notice to Ismail alleging therein that Lakhi had made a gift of the said property to defendants 1 and 2 and, therefore, they had asked Ismail to vacate the said premises or to pay rent to them. After receipt of the said notice Ismail sent reply to defendants 1 and 2 asserting his own title and possession and further asserting that there was no valid gift to them by Lakhi as she had no right to make any gift. Ag-cording to the case made out by defendant No. 3, defendants 1 and 2 had no title and the plaintiff had not acquired any title by means of his purchase from defendants 1 and 2. Thus, according to the defendant No. 3, the plaintiff had no unity of title and possession and he was not entitled to any decree.
5. On the pleadings of the Parties as many as seven issues were framed by the trial court Out of them only four are important for the purpose of decision of this appeal. They are:
Issue No. 1:-- Is the suit as framed maintainable ?
Issue No. 4:-- Is the suit barred by limitation and adverse possession?
Issue No. 5 : Has plaintiff title in the property in suit and is he entitled to claim partition? Issue No. 6 : Is there unity of title and possession between plaintiff and the defendants in respect of the suit properties ? If so, what is the share of the plaintiff?
6. After considering the evidence on the record, the trial court mainly held that : (i) Lakhi was the real purchaser end not a benamidar of defendant No. 3. (ii) the plaintiff's case regarding gift of the house property by Lakhi to defendants 1 and 2 was not correct; (iii) defendant No, 3 being in adverse possession of the house in question acquired valid title; (iv) the plaintiff failed to prove his subsisting title : (v) the plaintiff's sale deed was valid and for consideration : (vi) the plaintiff failed to prove that he himself ever came in possession over the suit property : (vii) the suit was instituted much beyond 12 years and so it was barred by limitation: and (viii) there was no unity of title and possession between the plaintiff and the defendants in respect of the suit property. With those findings the plaintiff's suit was dismissed.
7. The plaintiff thereafter preferred an appeal before the lower appellate Court against the findings, which were held against the plaintiff. The lower appellate court dismissed the appeal mainly on two grounds, namely, (a) non-ioinder of necessary parties in the suit and (b) defendant No. 3 had perfected his title by adverse possession since the plaintiff had not established unity of title and possession. To support the finding that the plaintiff had not im-pleaded necessary parties in the suit, the appellate court in its judgment observed that there were unimpeachable documents to show that when Mt. Lakhi died in Oct, 1939 she left behind not only defendants 1, 2 and 3, but also a daughter Majidan through Sk. Maju end another daughter named Hamidan through her previous husband, besides two brothers, as disclosed in Ext. H-II, which was an application for succession certificate filed in 1944 by defendants 1. 2 and Majidan, before the Judicial Commissioner, Ranchi, for withdrawal of some amount of money which was lying in the name of Lakhi after her death in the Post Office.
8. Mr. Rama Kant Verma, learned counsel appearing on behalf of the appellant has assailed the findings of the courts below, and urged that the suit of the plaintiff ought to have been decreed. However, he conceded that the finding of the lower appellate court regarding non-joinder of necessary parties in the suit is correct But he challenged the other findings of the court below on the ground that it failed to appreciate that defendant No. 3 could not have perfected his title by adverse possession, unless he established complete ouster of the non-possessing co-heirs of the suit property, as required under Article 144 of the Indian Limitation Act, 1908.
9. In order to meet the findings of the lower appellate court regarding non-joinder of necessary parties Mr. Verma placed before me an application under Section 151, Order 1 Rule 10 and Order 6. Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code), which was filed on behalf of the plaintiff appellant on the 5th January, 1971, for adding Maiidan, Hamidan. Ala-uddin and Amiruddin as parties to the suit as defendants second party and for issuance of direction to amend para. 9 in the plaint by adding that the Defendants 2nd party are also laying claim to a share in the property in suit end hence ere being made parties to the suit, and further praying in the application that the case be remitted to the court below for the said amendment.
10. Mr. Balbhadra Prasad Singh, learned counsel appearing on behalf of respondents 3 to 7, heirs of defendant No. 3, opposed the said application for amendment on the ground that it was belated and it would complicate the suit, as it will give rise to different cause of action. Mr. Naseem Ahmad appearing for respondents 1 and 2 (defendants 1 and 2) also opposed the said application of the appellant.
11. Mr. Verma submitted that It is well established that the amendment of the plaint is allowed at any stage, if it is necessary for determination of the real dispute between the parties and for avoiding multiplicity of suits. There is no dispute with regard to this proposition of law. The main consideration on this point is. whether even if the application of the appellant is allowed, the plaintiff's suit would succeed, in view of the finding that defendant No. 3 had succeeded in perfecting his title by adverse possession. Therefore, before disposing of the application filed by the appellant, it will be convenient to decide whether the finding of the court below regarding adverse possession of defen-dant No. 3, was in accordance with law.
12. Mr. Singh contended that the plaintiff had not pleaded that defendant No. 3 was a co-sharer of the suit property along with defendants 1 and 2. The simple case made out in the plaint, according to him, was that after the gift from Lakhi defendants 1 and 2 came in sole and exclusive possession of the suit property. Defendant No. 3 was allowed to remain in the house by defendants 1 and 2 as a mere licensee. Therefore, he urged that the plaintiff should not have been allowed to proceed on a claim outside his pleadings, and thereby calling upon defendant No. 3 to establish complete ouster of other co-sharers from the suit property. In order to substantiate his contention he relied on Murli-manohar Prasad Singh v. Ramlakhan Singh, (AIR 1947 Pat 356) where Sinha and Reuben, JJ. observed that where a claim was never put in issue, and the defendants were not called on to plead or to adduce evidence on the point, it would be unfair to them to allow the plaintiffs to proceed on a claim which is outside their pleadings. In this connection he also relied on Jaigobind Misir v. Nagesar Prasad, (AIR 1953 Pat 326) where Das and Narayan. JJ. held that when a particular claim had not been made in the defence, no amount of evidence could be allowed to be adduced with regard to that. In Bujhawan Singh v. Mt. Shyama Devi, (AIR 1964 Pat 301) Mahapatra and Tarkeshwar Nath. JJ. similarly held that a party cannot lead evidence to prove a plea, which is different from, and contrary to the plea put up in Ms pleading.
13. Mr. Verma, on the other hand, argued that in the pleading the plaintiff clearly stated regarding the relationship of defendant No. 3 with defendants 1 and 2 as well as their relationship with Lakhi. In that circumstance it is explicit that the plaintiff meant defendant No. 3 as co-heir of defendants 1 and 2. In my opinion, the plaintiff ought to have clearly stated so in his plaint. However, for the purpose of the instant case. I would assume that the plaintiff pleaded that defendant No. 3 was co-heir of defendants 1 and 2 in order to decide whether the finding of the court below regarding adverse possession is in accordance with law. In this connection Mr. Verma has placed great reliance on P. Lakshmi Reddy v. L. Lakshmi Reddy. (AIR 1957 SC 3141 where their Lordships were dealing with the question, as to when the possession of a co-heir would be adverse to the other co-heirs, in the light of the provisions contained under Article 144 of the Limitation Act. Learned counsel drew my attention particularly to some of their Lordships' observations in paragraph 4 at pages 317-318 where it was held that the possession required under Article 144 must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. But 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 out of them, is in sole possession and 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. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. 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 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.
14. In my view their Lordships have not laid down a general principle of law. It depends on the facts and circumstances of each case, as it will appear from the other portion of their Lordships' observation in the same paragraph which reads as: "............ This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases, which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time, and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 at p. 47 quotes, apparently with approval, a passage from Culley (Doe d 1 v. Taylerson, (1840) 3 P & D 539 = 52 RR 566, which indicates that such a situation may well lead to an inference of ouster 'if other circumstances concur' (See also Govindrao v. Rajabai, AIR 1931 PC 48)." Similar view was taken in Md. Zafir v. Amiruddin, (AIR 1963 Pat 108) where Mahapatra and Tarkeshwar Nath, JJ. ob-served that the question as to whether ouster has been proved to the knowledge of one party or the other would, depend upon the facts and circumstances of each case. In AIR 1964 Pat 301 (supra) the decision in AIR 1957 SC 314 was followed and it was similarly observed in paragraph 19 at pages 308-309 that whether there was ouster or not can also be inferred from the proved fact that co-heir took and maintained notorious exclusive possession in assertion of hostile title, and continued in such possession for a considerable time end the excluded heir took no steps to vindicate his ... title.
15. In the light of the above pronouncements of law on the subject I find that in the instant case the courts below have rightly inferred ouster from the proved facts, which I will presently demonstrate. It was found as a fact that the suit property was in possession of defendant No. 3 although Lakhi was its owner after she purchased it in 1920 from Jhalia. It was further held as a fact that the story advanced by the plaintiff regarding gift of the disputed property by Lakhi in 1926 to defendants 1 and 2 was not correct. It is also admitted fact that Lakhi died in 1939. There is nothing on the record to establish that defendant No. 3 was living in that house as permitted by Lakhi. There is also nothing on the record to show that Lakhi or her other heirs ever lived in that house along with defendant No. 3. Therefore, the exclusive unobstructed possession of defendant No. 3 over that house at least from 1926 up to October, 1939, when Lakhi died, would be adverse to the competitor, Lakhi, who was held to be true owner of the said house. She took no step in her lifetime to vindicate her title. Maju as a natural guardian, according to Mohammadan law, of his minor sons, defendants 1 and 2 on the basis of the alleged gift of Lakhi had sent notice dated the 31st May, 1926 (Ext I-II) to defendant No. 3 asking him to vacate the house alleging therein that he was in permissive possession. Defendant No. 3 replied to that notice by his letter dated the 11th June, 1926. (Exhibit J-II) in which defendant No. 3 repudiated the gift by Lakhi in favour of defendants 1 and 2 and asserted his claim over the property in his own right. Exhibit J-II in my opinion, is an evidence of open assertion of defendant no. 3 of hostile title as against defendants 1 and 2 also coupled with the exclusive possession and enjoyment of defendant No. 3 over the disputed property. It is not known what was the age of defendants 1 and 2 when Ext. J-II was received by Maju on the 17th June, 1926, as per acknowledgment receipt (Ext. K-II). Even assuming that defendants 1 and 2 were born in the Same year, that is 1926, it was expected that within three years of their attaining majority, which would be round about 1947, they would have taken steps in accordance with law to recover possession from defendant No. 3, who was clearly asserting hostile title. On the contrary, without any obstruction from any quarter defendant No. 3 was allowed to remain in the house in exclusive possession. It may further be noticed that by the time Lakhi died in October, 1939, defendant No. 3, as mentioned earlier, perfected his title by adverse possession as against Lakhi. Therefore, no transmissible interest was left in her which could have devolved upon her heirs after her death. Even if it is assumed that it devolved upon her heirs, defendants 1, 2 and 3 what step was taken by defendants 1 and 2 to recover possession from defendant No. 3 ? Obviously they took no step except that in the present suit defendant No. 1 asserted that defendant No. 3 was tenant of defendants 1 and 2 in the house with regard to their share. As a fact the courts below found against their assertions. Defendants 1 and 2 could not establish that and the courts below have found exclusive possession of defendant No. 3 over the suit property. Nothing has been placed on the record to show that any step was taken on behalf of even other heirs, who are not parties to the present suit. In such circumstances, it can safely be held that defendant No. 3 took and maintained notorious exclusive possession over the suit property in assertion of hostile title and continued in such possession for a considerable time and the excluded heirs took no step to vindicate their title in terms of ratio in AIR 1964 Pat 301. (supra).
16. Mr. Verma, however, reiterated that adverse possession of defendant No. 3 was not found at any rate against the other heirs, namely. Majidan. Hamidan. Alauddin and Amiruddin, on the basis of the application filed on behalf of the plaintiff for permission to amend the plaint and for remand of the case, Learned counsel urged that, therefore, it is necessary to remand the case to the court below in order to find out whether there was assertion of adverse possession by defendant No. 3 against those four heirs also. In my opinion, on the facts and in the circumstances of the case no useful purpose will be served by remanding the case, since, as held earlier, the defendant No. 3 maintained notorious exclusive possession in assertion of hostile title and nothing is placed on the record to show that any step was taken on behalf of any of the heirs. If the plaintiff's prayer of remand is accepted, it will unecessarily prolong the litigation. On the practice of remand in Rampat Sahu v. Bhaiju Sahu (AIR 1936 Pat 160) Courteny-Terrell, C. J. and Verma. J. observed that it is true that appellate Courts have inherent powers of remand as well as specific powers of remand given to them by the Code, but the Courts as has been pointed out more than once, should be slow to exercise that jurisdiction, and should only use it in appropriate cases. It is equally well settled, that a remand should not be ordered when the defect in the proceeding has been done due to the negligence or default of the party who asks for remand. In the instant case, therefore. I do not feel inclined under the inherent power to remand, in the ends of justice. The prayer of the plaintiff cannot be acceded.
17. The plaintiff's suit further suffered from, a major defect His allegation in the plaint that he was in actual possession has been found to be false by the courts below. Therefore, he could not have succeeded in the suit for partition, unless he first recovered possession of the share which he claimed vide Jatan Thakur v. Ali Jan Mia, (AIR 1937 Pat 525).
18. On a careful consideration from various aspects discussed above. I find no legal flaw in the findings of the courts below, which have got to be affirmed. In the result, the impugned judgment and the decree are upheld and the appeal is dismissed. In the circumstances, however, there will be no order as to costs of this Court.