Madhya Pradesh High Court
Himanshu vs Smt Mithlesh on 19 January, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:3262
1 SA-335-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF JANUARY, 2026
SECOND APPEAL No. 335 of 2025
HIMANSHU AND OTHERS
Versus
SMT MITHLESH AND OTHERS
Appearance:
Shri Utkarsh Tikhe - Advocate for appellants.
Shri Vivek Khedkar - Senior Advocate with Shri Himanshu Pathak - Advocate for
respondents No.1 to 3.
Shri Dilip Awasthi - Government Advocate for respondent No.8/State.
ORDER
1. This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 16/01/2025 passed by First District Judge, Gohad, District Bhind, in Regular Civil Appeal No. 35/2022, by which the judgment and decree dated 06/12/2022 passed by Second Civil Judge, Junior Division, Gohad, District Bhind, in RCSA No.68/2017 has been reversed, and the suit filed by the respondents No. 1, 2, and 3/plaintiffs has been decreed.
2. The appellants are the defendants who have lost their case before the first appellate Court.
3. The undisputed fact is that plaintiffs/respondents No.1, 2, and 3 and defendants No.1, 2, and 3, are the children of Shivnarayan. Shivnarayan has expired in the year 2004, and the wife of Shivnarayan had already expired Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 2 SA-335-2025 during the lifetime of Shivnarayan. Shivnarayan and Ramnarayan are the brothers, being sons of Lalta Prasad.
4. The case of the plaintiff, in short, was that Survey Nos.167/2, 170/2, 254/1, 257, 261, 769/2, 801/2, 826/2, 1107/2, and 1171/1, total 10 khasras and total area 3.60, is situated in village Dhamsa, whereas Survey Nos. 167, 267/2, 324, 325/2, 339/2, 236/1, and 338/2, total 7 khasras and total area 6.25, is situated in village Haselia. All the lands situated in both the villages, namely Dhamsa and Haselia, are the disputed property. It was the case of the plaintiffs that the aforesaid property is joint a Hindu family property which was inherited by their father Shivnarayan from his ancestors. It was claimed that the plaintiffs as well as defendants No. 1, 2, and 3 have equal share in the said property and they are in joint possession of the same.
The defendant No.1, whose legal representatives have filed this appeal, had assured the plaintiffs that he would get the names of the plaintiffs also recorded in the revenue records. However, on 25/05/2017, the plaintiffs received information from the villagers that the original defendant No.1 had got his name mutated in the revenue records in connivance with the revenue authorities and now he is intending to alienate the same. Accordingly, on the said date, the plaintiffs inquired from their brother, original defendant No.1 - Rakesh, about the aforesaid aspect, then he threatened the plaintiffs that they have no share in the property and that he would alienate the same. Accordingly, he denied the title of the plaintiffs. After the revenue documents were obtained, then they came to know that the name of defendant No.1 has been mutated in the revenue records, and the certified Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 3 SA-335-2025 copies of these khasras were received by them on 27/05/2017. It was claimed that defendant No.1 has also got the names of defendants No. 5 and 6 recorded in respect of Survey Nos.254/2, 167/2, and 1702 situated in village Dhamsa. Thus, a suit was filed for a declaration that the plaintiffs and defendants No.1 to 3 are co-owners having equal share in the property, and it was also claimed that the mutation of the names of defendants No.5 and 6 in the revenue records in respect of three khasra numbers is null and void to the extent of the share of the plaintiffs. A relief of permanent injunction was also sought.
5. Defendant No.1 accepted that the plaintiffs and defendants No. 1 to 3 are siblings. However, it was claimed that defendant No.1 is the solitary owner and in possession of the property in dispute. It was claimed that the plaintiffs and defendants No.2 and 3 were never in possession of the property in dispute. The sale of aforesaid three khasras to defendants No. 5 and 6 was already in the notice of the plaintiffs. After the death of Shivnarayan, the name of defendant No.1 was mutated in the revenue records and the plaintiffs have also consented for the same. The mutation and the sale were already in the knowledge of the plaintiffs. Defendants No.5 and 6, after getting their names mutated in the revenue records, are in possession of the property purchased by them. The suit is barred by time. The plaintiffs were never in possession of the property in dispute. Defendant No.1 had never assured the plaintiffs that he would get the names of the plaintiffs and defendants No.2 and 3 mutated in the revenue records. The claim of the plaintiffs that they are in joint ownership and possession of the property in Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 4 SA-335-2025 dispute was denied. It was claimed that since the name of defendant No.1 was mutated which was in the knowledge and with permission of the plaintiffs, therefore, the mutation has attained finality in the absence of any challenge. No cause of action has arisen in favour of the plaintiffs. The plaintiffs have also not filed copies of the order sheets of the revenue Court. Partition order was passed on 11/05/2005. The amendment in Section 6 of the Hindu Succession Act came into effect from 09/09/2005. By order dated 11/05/2005, the actual partition has taken place in the revenue records. It was also claimed that defendant No.1 is in exclusive possession of the property in dispute, and unless and until a prayer for possession is sought, the suit is barred under Section 34 of the Specific Relief Act.
6. Defendants Nos.5 and 6 also filed their written statement and it was claimed that defendants No.5 & 6 are owners and in possession of Survey Nos. 167/2 and 170/2 situated in village Dhamsa, whereas defendant No.6 is the owner and in possession of Survey Nos.254/2, 257, and 261 situated in village Haselia. It was claimed that the remaining disputed property is in the exclusive ownership and possession of defendant No.1. Defendants No.5 and 6 have purchased the aforesaid land from defendant No.1 after making payment of consideration amount. It was also claimed that defendants No.5 and 6 are in physical possession of the properties purchased by them. It was claimed that the disputed property was not undivided Hindu family property. The plaintiffs were aware of the sale right from the date of execution of the sale deeds. Defendant No.1 was in cultivating possession of the property in dispute during the lifetime of his father. Defendants No.5 and 6 have Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 5 SA-335-2025 purchased the property from defendant No.1 after verifying the revenue records. The plaintiffs were aware of the mutation of the name of defendant No.1 right from the date of the order, and in the absence of any challenge to the mutation proceedings, the order of mutation has attained finality. Therefore, the suit filed by the plaintiffs is barred by time. Since the plaintiffs have not prayed for possession, therefore, the suit is barred under Section 34 of the Specific Relief Act.
7. The trial Court, after framing issues and recording evidence, dismissed the suit.
8. Being aggrieved by judgment and decree passed by the trial Court, respondents No.1 to 3 preferred an appeal, which was allowed by the impugned judgment and decree dated 16/01/2025, and the suit filed by the plaintiffs has been decreed and it has been held that the plaintiffs have equal share in the disputed land along with defendants No.1 to 3. The order of mutation passed in favour of original defendant No.1 was held to be not binding on the plaintiffs. The sale deeds executed by defendant No.1 in favour of defendants No.5 and 6 were also held to be not binding on the plaintiffs, and a permanent injunction was granted against defendant No.1 that he shall not interfere with the possession of the plaintiffs over the property in dispute.
9. This appeal was admitted on 20/05/2025 on the following substantial questions of law :
"(i) Whether Appellate Court erred in decreeing the suit without reversing the finding of the learned Trial Court with regard to the suit barred by the limitation?
(ii) Whether the Appellate Court erred in issuing decree Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 6 SA-335-2025 for permanent injunction against the appellants who are admittedly the co-owner of the suit property ?"
10. Challenging the judgment and decree passed by the appellate Court, it is submitted by counsel for appellants that the appellate Court failed to see that the suit as framed and filed was barred by time, and the appellate Court committed an error in issuing a decree for permanent injunction against the appellants, who are admittedly co-owners of the property in dispute.
11. Per contra, learned counsel for the plaintiffs supported the findings recorded by the First Appellate Court.
12. Heard the learned counsel for the parties.
13. Since the relationship of the plaintiffs and defendants No.1 to 3 is not in dispute, therefore, it is clear that they are real siblings, being the children of Shivnarayan Shrivastava.
14. The defendant No.1 has claimed that by order dated 11/05/2005, an order of partition was passed by the Tehsildar, Gohad, District Bhind, in Case No.8/04-05 A-27, Exhibit D-18, and therefore, by virtue of that partition order, he had become the exclusive owner of the property in dispute.
15. On perusal of the partition order dated 11/05/2005 (Exh.D-18), it is clear that a joint application, was filed by Ramnarayan, son of Lalta Prasad, and Rakesh, son of Shivnarayan. It is not out of place to mention here that Shivnarayan and Ramnarayan were the children of Lalta Prasad Shrivastava. Therefore, it is clear that till 11/05/2005, the property of Ramnarayan and Shivnarayan remained joint, and thus a joint application Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 7 SA-335-2025 was filed by Ramnarayan and Rakesh (defendant No.1) for partition of the land. From the cause title, it is clear that neither the plaintiffs nor the defendants No.2 and 3 were made party to these proceedings. The burden was on the original defendant to prove that the plaintiffs and the defendants No. 2 and 3 were also noticed by the Tehsildar.
16. From the order dated 11/05/2005, Exhibit D-18, it cannot be deciphered as to when this application was filed. The defendant No.1 has not filed copies of the record of Case No. 8/04-05 A-27 to show that any public notice was issued and no objections were received, although that fact is mentioned in paragraph 2 of the order dated 11/05/2005, Exhibit D-18. Since the plaintiffs and the defendants No. 2 and 3 are the children of late Shivnarayan, therefore, they were the necessary parties and a notice was required to be issued specifically to them, but for the reasons best known to the original defendant No.1, the plaintiffs and the defendants No. 2 and 3 were deliberately not made party to the partition proceedings. A partition takes place amongst the co-sharers, and if any co-sharer is deliberately left out, then it would not be a valid partition order.
17. From the order dated 11/05/2005, it is clear that Khasra Nos. 167 min, 170 min, 171, 254 min, 1172, 1171 min, 826 min, 801 min, 769 min, and 110.7 min, situated in village Dhamsa, were given to Ramnarayan, whereas Khasra Nos. 167 min, 170 min, 257, 261, 254 min, 1171 min, 826 min, 801 min, 769 min, and 1107 min, situated in village Dhamsa, were given to Rakesh/original defendant No.1. Similarly, Khasra Nos. 266, 267 min, 325 min, 339, 338 min, and 326 min, situated in village Haselia Pura, Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 8 SA-335-2025 was given to Ramnarayan, whereas Khasra Nos. 167, 267 min, 324 min, 325 min, 339 min, 338 min, and 326 min, situated in village Haselia Pura, was given to original defendant No. 1. Thus, 3.60 hectares of land situated in village Dhamsa and 3.25 hectares of land situated in village Haselia Pura was given to defendant No. 1, Rakesh, whereas 3.61 hectares of land situated in village Dhamsa and 3.24 hectares of land situated in village Haselia Pura were given to Ramnarayan. This Court is not concerned with the land given to Ramnarayan situated in village Dhamsa and Haselia Pura and is concerned with the land given to Rakesh/defendant No.1 situated in village Dhamsa and Haselia Pura.
18. Unless and until a co-sharer/co-owner is ousted from the joint property, it cannot be said that the period of limitation would start running against such co-owner/co-sharer. Ouster means that one co-owner has actively and openly denied the rights of the other co-owners and has taken full control of the property. Just staying in possession alone is not enough to prove ouster unless there is a clear and undeniable act that prevents the other co-owners from exercising their rights.
19. The Supreme Court in the case of Govindammal vs R.Perumal Chettiar & Ors, reported in 2006 (11) SCC 600 has held as under :-
"11. In Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] the question was whether the plea of acquisition of title by adverse possession was available to the co- bhumidhar or not. In that context, their Lordships held that when no period of limitation is fixed for filing a suit for partition by a co-bhumidhar against his other co-bhumidhars in respect of a joint holding, the question of the other co-bhumidhar acquiring his title to such holding by adverse possession for over 12 years can never arise. It was further observed that if that be so, Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 9 SA-335-2025 such plea of perfection of title by adverse possession of a holding by a co-bhumidhar against his other co- bhumidhar as defence in the latter's suit for partition can be of no legal consequence.
12. In Mohd. Baqar v. Naim-un-Nisa Bibi [AIR 1956 SC 548] it was observed that under the law, possession of one co-sharer is possession of all co-sharers; it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession and exclusion and ouster following thereon for the statutory period. There can be no question of ouster, if there is participation in the profits to any degree.
13. In Md. Mohammad Ali v. Jagadish Kalita [(2004) 1 SCC 271] this Court examined a series of decisions on the question of adverse possession and after extracting the legal propositions from various decisions, their Lordships concluded that 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 a person or his predecessors- in-interest is deemed to have been protected by the trustees.
14. As against this, our attention was also invited to a decision in T.P.R. Palania Pillai v. Amjath Ibrahim Rowther [AIR 1942 Mad 622 : (1942) 2 MLJ 321 (FB)] . Their Lordships observed that in order to constitute adverse possession, the possession must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. Therefore, in cases of adverse possession also their Lordships have said that the possession should be for longer period and it is known to the competitor that it is held adverse to his knowledge. Their Lordships further held that in cases of usufructuary mortgage granted by one of several co-sharers, if a person remains in possession of the land and cultivates it for years, the requirement of continuity, publicity and extent for adverse possession are fully complied with. But that is not the case here.
15. In Nirmal Chandra Das v. Mohitosh Das [AIR 1936 Cal 106 : 40 CWN 777] their Lordships observed that in order to succeed on the ground of ouster, the person Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 10 SA-335-2025 setting up ouster is bound to show that he did set up an adverse or independent title during the period which was beyond the statutory period of 12 years. Their Lordships further observed that there can be no adverse possession by one co-sharer as against others until there is an ouster or exclusion; and the possession of a co- sharer becomes adverse to the other co-sharer from the moment there is ouster. Therefore, what is ouster and what is adverse to the interest of the claimant depends upon each case. In this case, a plea was raised that certain properties were (sic given on) usufructuary mortgage. But that was not in a manner to show that these properties are adverse to the interest of the plaintiff. It was only when 'B' schedule properties were sought to be sold and it came to the knowledge of the plaintiff that her stepsons were not interested in partition of the property and giving her share, she filed the suit in the year 1979. Therefore, for the first time in 1979 she came to know that adverse possession is being sought to be established and her interest in 'B' schedule properties is sought to be sold by her stepsons. But in any case, just because she gave a notice and she did not pursue the same, on that basis no adverse inference can be drawn and she cannot be ousted on that count by way of adverse possession."
20. The Supreme Court in the case of Tanusree Basu and others v. Ishani Prasad Basu and others, reported in (2008) 4 SCC 791 has held as under:
"17. Strong reliance has been placed by Mr Banerjee on a judgment of the Bombay High Court in Bhaguji Bayaji Pokale v. Kantilal Baban Gunjawate [AIR 1998 Bom 114 : (1998) 3 CCC 377 (Bom)] wherein it was held: (AIR p. 117, para 8) "8[7]. With regard to second substantial question of law i.e. the co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned counsel for the appellants has relied upon the Apex Court's judgment in Mohd. Baqar v. Naim-un-Nisa Bibi [AIR Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 11 SA-335-2025 1956 SC 548] . The Apex Court has very categorically held in para 7 as under: (AIR p.
550) '7. ... The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.' "
It was observed: (AIR p. 117, para 10) "10. ... Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well-
settled law."
21. It is the case of the original defendant No.1 that since he had got his name mutated in the revenue records and since that order of mutation was not challenged, and according to him, the plaintiffs and the defendants No. 2 and 3 were aware of the said mutation order, therefore, the original defendant No.1 had become the exclusive owner of the property in dispute.
22. As already pointed out, neither the plaintiffs nor the defendants No.2 and 3 were made party in the partition proceedings. Furthermore, it is not the case of defendant No.1 that when the plaintiffs and the defendants No. 2 and 3 were ousted from the joint property.
23. Under these circumstances, this Court is of the considered opinion that since the order of partition was obtained behind the back of the plaintiffs and the defendants No.2 and 3 on 11/05/2005 (Exh.D-18), and the civil suit was filed on 20/06/2017, and in the absence of any ouster, it cannot be said Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3262 12 SA-335-2025 that the plaintiffs and the defendants No. 2 and 3 were ousted by the original defendant.
24. Furthermore, an order of mutation is not an order of title. Admittedly, the plaintiffs and the defendants No.2 and 3 had equal share in the property in dispute. Unless and until the said right is relinquished by the co-sharers by executing a registered document, it cannot be said that by obtaining an order of partition behind the back of the co-sharers, the defendant can be said to have ousted them from their share or the co-sharers had surrendered their right or title in favour of defendant No.1. Furthermore, it is not the case of defendant No.1 that the plaintiffs and the defendants No. 2 and 3 had ever surrendered their title in favour of defendant No.1. Under these circumstances, in absence of any ouster, it is held that the suit filed by the plaintiffs was within the period of limitation.
25. Once the joint ownership of the plaintiffs and defendants No.1, 2, and 3 is undisputed and in the absence of ouster, the appellate Court was left with no other option but to set aside the judgment and decree passed by the trial Court and to hold that the plaintiffs as well as defendants No. 1 to 3 have equal share in the disputed property.
26. Accordingly, both the substantial questions of law are answered against the appellants, who are the legal representatives of the original defendant No.1.
27. Accordingly, the judgment and decree dated 16/01/2025 passed by the First District Judge, Gohad, District Bhind, in Regular Civil Appeal No. 35/2022 is hereby affirmed.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:3262 13 SA-335-2025
28. The appeal fails and is hereby dismissed.
(G. S. AHLUWALIA) JUDGE Aman Signature Not Verified Signed by: AMAN TIWARI Signing time: 30-01-2026 05:42:01 PM