Telangana High Court
B. Sujatha vs C. Pentaiah on 24 March, 2026
IN THE HIGH COURT FOR THE STATE OF TELANGANA :
HYDERABAD
***
CITY CIVIL COURT APPEAL No.90 of 2011
Between:
B. Sujatha, W/o. Sri B. Ravinder,
Aged about 44 years, Occ: House hold
R/o 4-5-37, Hayatnagar Ranga Reddy District.
Appellant
VERSUS
C. Pentaiah, S/o. Late C. Shiva Shanker,
Aged about 60 years, Occ: Business and 2 others.
Respondents
ORDER PRONOUNCED ON: 24.03.2026
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_________________________________
NARSING RAO NANDIKONDA, J
2 of 31
NNR,J
CCCA_90_2011
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
+ CITY CIVIL COURT APPEAL No.90 of 2011
% 24.03.2026
# Between:
B. Sujatha, W/o. Sri B. Ravinder,
Aged about 44 years, Occ: House hold
R/o. 4-5-37, Hayatnagar Ranga Reddy District.
Appellant
VERSUS
C. Pentaiah, S/o. Late C. Shiva Shanker,
Aged about 60 years, Occ: Business and 2 others.
Respondents
! Counsel for Petitioner(s) : Mr. B. Shankar, learned
counsel for the appellant.
^Counsel for the respondent(s) : Mr. B. Dananjaya, learned for
the respondents.
<GIST:
> HEAD NOTE:
? Cases referred
1) AIR 1995 Sc 1789
2) RFA No.946 of 2018
3) AIR 1958 Assam 67
4) ILR 37 All 115: AIR 1915 All 1 (2)(A)
5) 1988 (3) S.C.R. 198
6) 2016 12 SCC 288
7) 2007 (3) ALD 760
8) 1999 (3) CCC 112
9) AIR 2004 SC 1206
10) AIR 2022 SC 577
11) AIR Online 2022 SC 450
3 of 31
NNR,J
CCCA_90_2011
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA
CITY CIVIL COURT APPEAL NO.90 OF 2011
Date: 24.03.2026
Between:
B. Sujatha
...Appellant
AND
C. Pentaiah and 2 others
...Respondents
JUDGMENT
This appeal is filed by the appellant under Section 96 of the Civil Procedure Code, 1908, being aggrieved by the Judgment and Decree, dated 18.01.2011 passed in OS No.588 of 2006 by the learned II Additional Chief Judge, City Civil Court, Hyderabad.
2. Heard Sri B. Shankar, learned counsel for the appellant and Sri B. Dananjaya, learned counsel for the respondents. Considering the written submissions and the decisions relied 4 of 31 NNR,J CCCA_90_2011 upon by both the counsel and perused the entire material on record.
3. For the sake of convenience, the parties are hereinafter referred to as they are arrayed before the Trial Court.
4. The brief facts of the case are that the plaintiff and the three defendants are the children of the late Chitrala Shiva Shanker, a civil contractor who passed away in 1976, and the late Smt. Maniyamma. The primary suit schedule property is a house measuring 704 Sq. yards located in Chikkadpally, Hyderabad, which was acquired by the father during his lifetime but stood in the name of the mother. Following the father's death, the two sons i.e., defendant Nos.1 and 2 took control of the family business and properties. The plaintiff alleges that defendant Nos.1 and 2 have been managing the property and collecting significant income from it. This includes Rs. 5,000/-per month in rent from various residential portions (consisting of two- bedroom and one-bedroom units) and approximately Rs. 12,000/- per month from charging auto-rickshaws to park on the vacant land overnight. While the plaintiff initially occupied 5 of 31 NNR,J CCCA_90_2011 one room for her children's studies and did not press for partition due to cordial relations. She now seeks formal legal action.
5. The conflict arose when the plaintiff came to know that defendant Nos.1 and 2 were attempting to alienate the suit schedule property to third parties without her consent. In response to a legal notice demanding partition, the defendants claimed that the plaintiff and defendant No.3 had previously signed affidavits giving up their shares in the property. The plaintiff vehemently denies this by asserting that the affidavits are forged documents created with intent to grab the property. Consequently, the plaintiff is seeking a formal partition of the suit schedule property and recovery of her rightful 1/4th share. She maintains that as one of the four children, she is entitled to an equal portion of the estate left by her parents and has requested the Court to grant her possession of that specific share.
6. Defendants Nos.1 and 2 filed their written statement admitting that defendant No.1 has been in enjoyment of the suit 6 of 31 NNR,J CCCA_90_2011 schedule property as its absolute owner, to the knowledge of all concerned, including the plaintiff. In support of this contention, they relied upon an affidavit dated 16.12.1988, allegedly executed by the plaintiff, wherein it is stated that the plaintiff has no claim over the suit schedule property. On this basis, the defendants contend that the present suit is not maintainable.
7. It is further contended that the plaintiff has not initiated any proceedings for more than twelve years, despite being fully aware of the defendants' possession and enjoyment of the property, including realization of profits therefrom. Consequently, it is argued that the plaintiff and defendant No.3 have been effectively ousted from the suit schedule property. The defendants also assert that no demand for partition was made by the plaintiff or defendant No.3 for several years, and that the alleged demand made by the plaintiff after her marriage around 1990-1991 was denied. Therefore, the suit is claimed to be barred by limitation.
8. Additionally, the defendants contend that the plaintiff's claim is defeated by the principles of ouster and adverse 7 of 31 NNR,J CCCA_90_2011 possession, asserting that their continuous, open, and hostile possession of the property has extinguished the rights of the plaintiff.
9. After considering the pleadings of both parties, the learned trial Court framed the following issues:
1. Whether the plaintiff had sworn any affidavit in the year 1988 foregoing her rights in schedule property?
2. Whether the suit property is available for partition? If so, against whom and into how many shares?
3. Whether the plaintiff is entitled for partition as prayed for?
4. To what relief?
10. On behalf of the plaintiff, the plaintiff got himself examined and marked Exs.A1 to A7 and on behalf of the defendant DW-1 & DW-2 got themselves examined and marked Exs.B1 to B12.
11. The learned Trial Court dismissed the suit solely on the ground of limitation, relying upon the deposition of PW-1. In her evidence, PW-1 stated that she had been demanding partition for a long time and insisting upon it for the past three years. She further deposed that, after her marriage in the year 1987, she 8 of 31 NNR,J CCCA_90_2011 demanded partition of the suit schedule property in or around 1990-1991, which request was refused by the defendants. She also asserted that she had been claiming her share in the profits derived from the said property.
12. Aggrieved by the same, the present appeal is filed on the ground that the learned trial Court erred in dismissing the suit based on the Law of Limitation. The appellant argues that in a suit for partition, the right to sue "accrues day by day" as long as the property remains joint and the learned trial Court wrongly concluded that the suit was barred by time by misinterpreting a casual demand for partition in 1990-1991. Furthermore, the appellant highlights that the defendants did not even raise the plea of limitation in their initial reply notice, suggesting the Court applied this legal bar without proper justification or a liberal construction so as to serve substantial justice. Additionally, the appellant challenges the trial Court's handling of Ex.B10, an affidavit allegedly signed by the plaintiff to give up her share. The grounds assert that the trial Court illegally shifted the burden of proof onto the plaintiff to disprove 9 of 31 NNR,J CCCA_90_2011 the document, rather than requiring the defendants, who produced it to prove its authenticity. The appellant claims that the Court ignored the plaintiff's explicit denial of the document and failed to send the disputed signature for handwriting expert.
13. The question of applicability of the Limitation Act, particularly whether any period of limitation is prescribed for seeking partition, requires consideration. It is, therefore, necessary to first examine the relevant legal principles governing limitation in partition suits before proceeding to analyze the factual background of the case.
14. The learned counsel for the defendants/respondents contended that defendant Nos.1 and 2 are enjoying the suit property as absolute owners to the knowledge of everybody which is manifest and evident from the affidavit and the plaintiff has no right to seek partition and the same was not demanded in view of the cordial relationship, is a blatant lie and the same is false and denied. It is not out of place to mention here that, defendant Nos.1 and 2 are enjoying the rents upon the death of 10 of 31 NNR,J CCCA_90_2011 their mother till the date of knowledge of plaintiff and utilizing the same onto themselves.
15. The learned counsel for the appellant relied upon the various judgments which are as follows:
i. Vidyadevi Alias Vidyavati V. Prem Prakash and Others 1, ii. Srinivas And Others V. M.C. Narayanaswamy and Others 2, iii. Tara Kishan Das V. Beharu Barman and Others 3, iv. T.C. Mukerji V. Afzal Beg 4, v. Collector Land Acquisition, Anantnag and Another V. M/S. MST Katiji and Others 5.
In Vidyadevi Alias Vidyavati V. Prem Prakash and others (1st cited supra), the relevant paragraph is extracted hereunder:
20. The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers. Since the filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would 1 AIR 1995 SC 1789 2 RFA No.946 of 2018 (PAR) 3 AIR 1958 Assam 67 4 ILR 37 All 115: AIR 1915 All 1 (2)(A) 5 1988 (3) S.C.R. 198 11 of 31 NNR,J CCCA_90_2011 commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however, does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-
sharer who has come before the court as a plaintiff seeking partition of his share in the joint property.
In Srinivas and Others V. M.C. Narayanaswamy and Others (2nd cited supra), the relevant paragraph is extracted hereunder:
23. The law with regard to applicability of Order IX Rule 9 of C.P.C. in respect of partition suits is well settled. It has been held by the Himachal Pradesh High Court in the case of Asha Sharma and Others v. Amar Nath and Others [AIR 2003 Himachal Pradesh 32] that co-sharers' right to seek partition is a recurring cause of action, until and unless the partition between members of the joint family is effected, the joint owner can file a suit for partition until partition is actually effected irrespective of the fact whether earlier suit for such partition was dismissed for non-prosecution or the earlier decree for partition was not acted upon. It held that, right to seek partition is a substantive right.
In Tara Kishan Das V. Beharu Barman and Others (3rd cited supra), the relevant paragraph is extracted hereunder:
5. On the face of it, the decision of the learned Subordinate Judge is quite illegal. He appears to have ignored the position that a right to obtain partition is a right inherent in the joint ownership of property. It is a natural and legal incident of ownership which could not be denied to a co-owner of the property so long as his right subsists. The mere fact that on an earlier occasion he could not obtain partition, is no ground for holding that the right of the co-owner to seek partition is barred for ever. It is a continuing right which the co-
owner possesses in the lands in question; and if on account of inconvenience or differences with the co-owner, it is not possible for 12 of 31 NNR,J CCCA_90_2011 him to continue in joint ownership of the property, there is no reason why the right to seek partition should be denied to him.
6. In other words, it is open to the co-owner to ask for separate enjoyment of his share of the property at any time he likes and the right to partition the land cannot be refused so long as his interest in the land is not extinguished. The proposition is too well settled to need authorities. But I would refer to only a few of them. In T.C. Mukerji v. Afzal Beg, ILR 37 All 155 : (AIR 1915 All 1 (2)) (A), it was pointed out that the right to bring a suit for partition, unlike other suits, is a continuing right incidental to the ownership of joint property and a second suit is, therefore, not barred. Another decision to which reference may also be made is Jagamohini Dasi v. Shiba Gopal Banerjee, AIR 1920 Cal 108 (B), where it was again laid down that the right to sue for partition is a continuing right and incidental to the ownership of joint property. Therefore, so long as the property remains joint, one of the co-owners has a good cause of action for bringing a fresh suit for partition notwithstanding the dismissal of a previous suit for partition.
In T.C. Mukerji V. Afzal Beg (4th cited supra), the relevant portion is extracted hereunder:
The right to bring a suit for partition unlike other suits is a continuing right incidental to the ownership of joint property.
In Collector Land Acquisition, Anantnag and Another V. M/S. MST Katiji and Others (5th cited supra), the relevant portion is extracted hereunder:
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
13 of 31 NNR,J CCCA_90_2011 There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.
16. The learned counsel for the defendants/respondents contended that the parties are closely related, which fact is not in dispute. It was further submitted that the parents of the parties passed away when the plaintiff was a minor, and defendant No.1, being the elder brother, took responsibility of the family and performed the marriages of his siblings. It is further argued that the plaintiff, during the course of cross-
examination, has admitted the factum of ouster from the enjoyment of the suit schedule property and the consequent extinguishment of her rights. In view of such admissions, it is contended that the defendants are not required to independently prove the said facts.
17. The respondents also contend that the plaintiff herself admitted that defendants Nos.1 and 2 have been in continuous possession and enjoyment of the suit schedule property as absolute owners for more than twelve years, to her knowledge. Despite such knowledge, the plaintiff instituted the suit only after a lapse of about sixteen years, thereby rendering the claim 14 of 31 NNR,J CCCA_90_2011 barred by limitation. It is specifically the case of defendant No. 1 that they have been in uninterrupted, open, and exclusive possession of the suit schedule property for more than twelve years, asserting ownership to the knowledge of the plaintiff and defendant No.3, and have been deriving profits therefrom. Consequently, it is contended that the plaintiff and defendant No.3 have been effectively ousted from the suit schedule property for the said period.
18. Another aspect which the learned counsel for the defendants/respondents has raised that since the demand was made in the year 1990 and admittedly the defendants were receiving the rents and the profits, and used by the defendants for themselves and that too in the knowledge of the plaintiff, and that the plaintiff never demanded for the rents cannot be a ground for refusal of the partition. Mere collection of rent and profits from the business, despite defendant No.1 having no entitlement to any share in the properties, and his continued enjoyment of rental income from the said properties since 1986. The denial to give share in the properties in question though was 15 of 31 NNR,J CCCA_90_2011 made known to the plaintiff in the year 1986-87 itself, the plaintiff did never raise any objection.
19. It is pertinent to mention here that admittedly defendant Nos.1 and 2 performed the marriage of the plaintiff on 11.12.1989 and that the suit schedule property consisting of two bedrooms and four portions of one bedroom, are let out to the tenants. Two double bedroom portions were occupied by defendant Nos.1 and 2 respectively. Thus, defendant Nos.1 and 2 are getting monthly rent of Rs.50,000/- from the suit schedule property. In addition to that, there is a sufficient vacant land in the suit schedule property which has been used for the purpose of parking autos in the night time, for which defendant Nos.1 and 2 are collecting Rs.10/- per day for each auto. Daily about 40 autos are parked in the said site and the defendant Nos.1 and 2 are getting Rs.12,000/- per month on the vacant site. It is admitted that the plaintiff is occupying portion of one room in the suit schedule property where her children were using the same while they were pursuing studies in the city.
16 of 31 NNR,J CCCA_90_2011
20. The plaintiff, even though has cross-examined DW1 at length, but did not cross examine DW1 with regard to the exclusion or ouster even though the same is pivotal issue raised by defendant No.1 and specific evidence has been led in that regard. It is further submitted that it is settled proposition of law that, once a party put forth a specific case in his evidence, non- cross examining him on the said specific evidence amounts to admission of the said fact and relied upon the judgment of the Hon'ble Supreme Court in Muddasani Venkata Narsaiah v. Muddasani Sarojamma 6, wherein it was held as under:
Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to factum of execution of sale deed. PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one's own version in cross- examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal &Ors. v. Debnath Bhagat&Ors, AIR 1963 SC 1906. This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account has been accepted as held in M/s. Chuni Lal DwarkaNath V. Hartford Fire Insurance Co. Ltd. 8Anr, AIR 1958 Punjab 440. In MarotiBansiTeli v. Radhabai w/o TukaramKunbi & Ors. AIR 1945 Nagpur 60, it has been laid down 6 2016 12 SCC 288 17 of 31 NNR,J CCCA_90_2011 that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely technical one. A Division Bench of Nagpur High Court in KuwarlalAmritlal v. RekhlalKoduram & Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-
examine the witness along those lines. A Division Bench of Patna High Court in KarnidanSarda & Anr. v. SailajakantaMitra AIR 1940 Patna 683 has laid down that it cannot be too strongly emphasized that the system of administration of justice allows of cross-examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first Appellate Court as to the factum of execution of the sale deed in favour of the plaintiff. It is contended that the plaintiff has been ousted from the enjoyment of suit schedule property for more than prescribed period and her right to seek partition is extinguished.
21. He also pointed out that so far as the issue of limitation is concerned, there is no limitation prescribed in Limitation Act for filing the suit for partition. As such, the residuary Article 113 is 18 of 31 NNR,J CCCA_90_2011 made applicable. For proper appreciation the said Article is extracted hereunder:
Any suit for which no Three years When the right to sue Article period of limitation is accrues, 113 provided elsewhere in this Schedule.
22. It is further argued and contended that the plaintiff ought to have instituted the suit within three years from the date of refusal. The evidence of PW-1 clearly indicates that, although she had demanded partition in or around 1990-1991, no legal action was taken within the prescribed period. She also stated that she had demanded her share in the profits, which was similarly refused in or about the year 1990. It is further submitted that the plaintiff has admitted that she neither issued any legal notice nor initiated any proceedings seeking partition within the said period. In view of such admissions, the respondents contend that the suit is barred by limitation.
23. The learned counsel for the defendants contended that, in view of the applicability of Article 113 of the Limitation Act, the present suit is barred by limitation and relied upon on the
19 of 31 NNR,J CCCA_90_2011 judgment of High Court of Andhra Pradesh in T. Bhoopal Reddy v. K.R. Laxmi Bai 7, wherein it was held as under:
This issue was framed on the plea of the defendants that the suit is barred by limitation. The suit was filed by the plaintiff basing on the documents Ex A-48 dated 11-11-1967 and Ex. A-49 dated 14- 2-1981. Subsequently the plaintiff did not press the Ex. A-48. The entire claim is on the basis of Ex. A-49. Even according to the plaintiff, the first defendant was not inclined to give any share in the properties and enjoying the rents in respect of the properties since 1986. As rightly observed by the trial Court, denial to give share in the properties in question was made known to the plaintiff in the year 1986 itself and therefore the suit filed by the plaintiff in the year 1994 is hurred by limitation under Article 113 of the Limitation Act, 1961 and therefore, this issue is also answered accordingly and against the plaintiff.
It is to contend that where a right to sue accrues, the suit must be filed within three years from the date of such accrual. It was argued that in the present case, the plaintiff herself admitted in her evidence as PW1 that she demanded partition in the years 1990-1991 and that the same was refused. Therefore, according to the defendants, the cause of action arose at that time, and the plaintiff ought to have instituted the suit within three years therefrom. There was continuous enjoyment of rents and profits by defendant Nos. 1 and 2, to the exclusion of the plaintiff, which was also emphasized to show denial of her rights.7
2007 (3) ALD 760
20 of 31 NNR,J CCCA_90_2011
24. The learned counsel for the defendants further relied upon the judgments of the Hon'ble Supreme Court reported in Ram Gopal Baheti V. Giridharilal Soni and Others 8 and Krishna Pillai Rajasekharan Nair V. Padmanabha Pillai 9 , to contend that Article 120 (old) and new Article 113 of the Limitation Act is applicable in a suit for partition. The relevant portion is extracted hereunder:
In our opinion, the suit filed in the present case being a suit for partition primarily and predominantly and the relief of redemption having been sought for only pursuant to the direction made by the High Court in its order of remand, the limitation for the suit would be governed by Art. 120 of Limitation Act, 1908. For a suit for partition the starting point of limitation is when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. In such a suit, the right of the redeeming co-mortgagor would be to resist the claim of non-redeeming co-mortgagor by pleading his right of contribution and not to part with the property unless the non- redeeming co-mortgagor had discharged his duty to contribution. This equitable defense taken by the redeeming co-mortgagor in the written statement would not convert the suit into a suit for contribution filed by the non-redeeming co-mortgagor.
The defendants also argued that the law of limitation is mandatory in nature based on public policy and also relied upon Section 3 of the Limitation Act, wherein it was contended that 8 1999 (3) CCC 112 9 AIR 2004 SC 1206 21 of 31 NNR,J CCCA_90_2011 any suit filed beyond the prescribed period must be dismissed, and Courts have no power to extend limitation in the case of suits.
25. Further, the appellant relied upon the judgment of Hon'ble Supreme Court in Sunil Kumar Maity V. S.B.I. 10, wherein it was held as under:
The National Commission therefore has grossly erred in observing in the impugned order that the appellant-complainant would be at liberty to seek remedy in the competent Civil Court and that if he chooses to bring an action in a Civil Court, he is free to file an application under Section 5 of the Limitation Act, 1963, recording the statement of Ld. Counsel for the SBI that it will not press the issue of limitation if action is brought by the complainant in a Civil Court. Such an observation/order passed by the National Commission is in utter ignorance of the provisions of the Limitation Act, in as much as Section 5 of the Limitation Act does not apply to the institution of civil suit in the Civil Court.
And also relied upon the judgment of Hon'ble Supreme Court in F. Liansanga V. Union of India 11, wherein it was held as under:
15. The High Court held rightly that the Limitation Act was applicable in the State of Mizoram and that a perusal of Section 5 of the Limitation Act, 1963 clearly showed that Section 5 did not apply to suits, but only to appeals and to applications except for applications under Order XXI of the Civil Procedure Code.10
AIR 2022 SC 577 11 AIR Online 2022 SC 450 22 of 31 NNR,J CCCA_90_2011
16. As held by this Court in PopatBahiruGovardhane & Others vs. Special Land Acquisition Officer &Anr. reported in (2013) 10 SCC 765, on which reliance has been placed by the High Court, it is settled law that limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds, even though the statutory provision may sometimes cause hardship or inconvenience to a particular party. The Court has no choice, but to enforce it giving full effect to the same. On perusal of Section 5 of the Limitation Act, it is not applicable to suits, but only to appeals and applications except for application under Order XXI of the Civil Procedure Code.
26. After hearing both the plaintiff and defendants the following points that arose for consideration before this Court:
1. Whether the suit is barred by limitation?
2. Whether defendant Nos.1 and 2 have proved the factum of adverse possession?
3. Whether the plea of ouster is proved by defendants?
4. Whether plaintiff is entitled for partition as prayed for?
27. Issues 1 to 3: It is an admitted fact that the suit schedule property is ancestral in nature and the relationship between the parties as siblings is undisputed. The plaintiff, being a married daughter, was residing in her matrimonial home, while 23 of 31 NNR,J CCCA_90_2011 defendant Nos.1 and 2 remained in possession of the property and were collecting rents and profits.
28. The contention of the defendants that the plaintiff was ousted from possession cannot be accepted. According to law, possession of one co-owner is deemed to be possession on behalf of all co-owners. Mere exclusive enjoyment of the property or receipt of rents by one co-owner does not amount to ouster, unless there is clear denial of the rights of the other co-owners, coupled with hostile possession. In the present case, no such cogent evidence of ouster has been established.
29. Further, the plea of adverse possession raised by the defendants is also unsustainable. It is a settled principle that for claiming adverse possession, the possession must be open, hostile, continuous, and to the knowledge of the true owner. In cases of co-ownership, such a plea is viewed with greater strictness, as possession by one co-owner is presumed to be on behalf of all. The defendants have failed to establish the necessary evidences to substantiate adverse possession.
24 of 31 NNR,J CCCA_90_2011
30. Significantly, the alleged affidavit said to have been executed by the plaintiff relinquishing her rights does not have any legal validity, as relinquishment of rights in immovable property can only be effected through a duly registered instrument. Such an affidavit, therefore, cannot extinguish the plaintiff's rights.
31. On the question of limitation, reliance placed by the defendants on Article 113 is misplaced. As held by the Hon'ble Supreme Court in Vidyadevi Alias Vidyavati V. Prem Prakash and Others (1st cited supra), the right to sue for partition is a continuous one, and no period of limitation is prescribed for filing a suit for partition. The cause of action in such cases is a continuing one, and therefore the suit cannot be dismissed as barred by limitation merely because there was refusal earlier.
32. Moreover, the admitted fact that the plaintiff did not issue any legal notice or take immediate action after the alleged refusal in 1990-1991 and merely not taking any action does not extinguish her substantive right in the joint family property. The law recognizes that partition is an incident of co-ownership and 25 of 31 NNR,J CCCA_90_2011 can be sought at any time unless there is a clear and legally sustainable bar.
33. Accordingly, the contention of the defendants that the suit is barred by limitation, or that the plaintiff has been ousted or that the defendants have perfected title by adverse possession, is devoid of merit and cannot be sustained.
34. The contentions advanced by the defendants are threefold:
(i) ouster, (ii) adverse possession, and (iii) limitation. It is their case that the suit is barred by limitation on the ground that the plaintiff had allegedly demanded partition in the years 1990-
1991, which was refused by defendant Nos.1 and 2. It is further contended that the plaintiff and defendant No.3 executed affidavits relinquishing their respective shares in favour of defendant Nos.1 and 2.
35. At the outset, the very plea that the plaintiff and defendant No.3 executed affidavits would itself indicate that they had subsisting rights in the suit property and were entitled to a share therein. The defence of ouster, adverse possession, and 26 of 31 NNR,J CCCA_90_2011 limitation being interrelated, it is necessary to first examine whether ouster has been established, as the burden of proving the same squarely lies upon the defendants.
36. It is well settled that ouster does not require physical dispossession, but must be established by clear, unequivocal, and hostile acts demonstrating the exclusion of the co-sharer from joint possession. To prove ouster, the essential elements must be satisfied which are a clear declaration of hostile animus, long and uninterrupted possession, exercise of exclusive ownership to the knowledge of the other co-owners and open assertion of hostile title coupled with exclusive possession.
37. Mere non-participation in the income or profits of the property is insufficient to establish ouster. The burden of proving ouster rests heavily on the party asserting it. In the present case, the defendants rely upon the alleged admission of the plaintiff that after 1990-1991, the plaintiff did not demand partition or issue any legal notice, and that defendant Nos.1 and 2 were enjoying the property and collecting rents. However, such 27 of 31 NNR,J CCCA_90_2011 admissions, even if accepted, do not amount to proof of ouster. The mere fact that defendant Nos.1 and 2 were in possession and collecting rents cannot, by itself, be construed as hostile possession to the knowledge of the plaintiff.
38. The reliance placed by the defendants on the alleged affidavits said to have been executed by the plaintiff and defendant No.3 is also misplaced. Firstly, the plaintiff has denied the execution of such affidavits. Secondly, even assuming such affidavits exist, relinquishment of rights in immovable property cannot be effected without a duly executed and registered document, as required by law. Therefore, such affidavits cannot be treated as valid documents evidencing relinquishment of rights.
39. Another significant aspect is that defendant No.3 was neither examined as a witness nor took steps to independently assert or defend her rights before the Court. Nevertheless, the failure of defendant No.3 to actively participate does not extinguish her legal entitlement.
28 of 31 NNR,J CCCA_90_2011
40. It is an admitted position that the suit property is ancestral in nature and belongs to the parents of the parties. The plaintiff and defendant Nos.1, 2, and 3 being their children, are equally entitled to shares in the property. Even the defendants have not claimed any independent title to the property rather they admit its ancestral character. To sustain a plea of ouster, the defendants must establish not only exclusive possession but also a hostile claim of title to the knowledge of the other co-owners. In the absence of such a claim, mere possession and collection of rents do not amount to ouster.
41. Further, the fact that the plaintiff, being a married woman, resided at her matrimonial home and did not demand partition for a considerable period does not constitute ouster. The law presumes that possession of one co-sharer is possession on behalf of all, unless a clear and hostile assertion is proved.
42. In the present case, except for the oral submission that the plaintiff demanded partition in 1990-1991, there is no cogent evidence on record to substantiate the same. Even otherwise, mere inaction or delay on the part of the plaintiff does not 29 of 31 NNR,J CCCA_90_2011 establish ouster. In the absence of proof of ouster, the plea of limitation does not arise. Consequently, the claim of adverse possession, which is founded upon hostile possession, also fails. Accordingly, the defences of ouster, adverse possession, and limitation set up by the defendants are unsustainable and are liable to be rejected.
43. Further, in view of the judgment of the Hon'ble Supreme Court in VIDYADEVI ALIAS VIDYAVATI (1st cited supra), it is well settled that possession by one co-sharer or co-owner is deemed to be possession on behalf of all co-owners, even if the others are not in actual physical possession. In the present suit, although the defendants contend that the plaintiff had earlier sought partition, there is no specific plea or evidence regarding any independent claim made by defendant No.3. Merely because the plaintiff did not take earlier steps to seek partition, the right or entitlement of defendant No.3 to a share cannot be extinguished. It is equally open to defendant No.3 to seek partition. In a partition suit, all parties stand on equal footing as that of a plaintiff. Therefore, mere failure of the plaintiff to file 30 of 31 NNR,J CCCA_90_2011 a suit for partition within a particular time cannot be a ground to deny partition even to defendant No.3.
44. Accordingly, the contention of the defendants that the suit is barred by limitation cannot be accepted. Likewise, their claim that their possession has become adverse to the rights of the plaintiff is unsustainable. Hence, issues No.1 to 3 are answered accordingly in favour of plaintiff and against defendant Nos.1 and 2.
45. Issue No.4:-
Upon consideration of the merits of the case, and after evaluating both oral and documentary evidence on record, this Court is of the opinion that the plaintiff is entitled to a decree for partition. The learned trial Court, without properly appreciating the legal principles governing ouster and by erroneously relying solely on limitation, dismissed the suit.
46. This Court is of the view that the findings of the trial Court are liable to be set aside. For the aforesaid reasons, the issues are answered in favour of the plaintiff and against the defendants. Considering the relationship among the parties, this 31 of 31 NNR,J CCCA_90_2011 court is not intending to award any costs. Both the parties shall bear their own cost.
47. With the aforesaid findings, this City Civil Court Appeal is allowed setting aside the Judgment and Decree, dated 18.01.2011 passed in OS No.588 of 2006 by the learned II Additional Chief Judge, City Civil Court, Hyderabad. Consequently, the suit is decreed, passing a preliminary decree thereby partitioning the suit schedule property into four equal shares and allotting the 1/4th share of the suit schedule property to the plaintiff by metes and bounds and separate possession of the same. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending, shall stand closed.
________________________________________________ JUSTICE NARSING RAO NANDIKONDA Date: 24.03.2026.
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