Bombay High Court
Bhardwaj Harshad Maniar vs Lila Harshad Maniar And Anr on 18 July, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-OS:10613
906-IA16701-2024INS102-2024.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SANTOSH
SUBHASH INTERIM APPLICATION (L) NO. 16701 OF 2024
KULKARNI
Digitally signed by
SANTOSH SUBHASH
IN
KULKARNI
Date: 2024.07.19
17:10:54 +0530
SUIT NO. 102 OF 2024
Bhardwaj Harshad Maniar ...Applicant
In the matter between
Lila Harshad Maniar and anr. ...Plaintiffs
Versus
Bhardwaj Harshad Maniar ...Defendant
Mr. Rajiv Narula, a/w Mr. Tarang Jagtiani, i/b Jhangiani,
Narula & Associates, for the Applicant in IA/16701/
2024/for the Defendant in S/102/2014.
Mr. Amod Eklaspur, a/w Ayaz Bilawala & Disha Mehta, i/b
Bilawala & Co., for the Plaintiffs in S/102/2024.
CORAM: N. J. JAMADAR, J.
DATED: 18th JULY, 2024
ORDER:-
1. The defendant has preferred this application for rejection of plaint under Order VII Rule 11(d) of the Code of Civil Procedure Code, 1908 on the ground that the suit is ex facie barred by law of limitation.
2. The background facts necessary for the determination of this application are as under:
(a) Harshad Maniar (the deceased) was the husband of plaintiff No.1. Plaintiff No.2 and the defendant are the children of plaintiff No.1 and deceased. During the lifetime of the 1/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC deceased, all the parties were residing in Flat No.31, 6 th Floor, Aryan Mahal, C-Road, Marine Drive, Mumbai - 400 020, ("the suit flat"), which was originally owned by Rukshamaniben, the mother of the deceased. Rukshamaniben passed away on 28 th January, 2009. The suit flat devolved on the deceased.
(b) M/s. Maniar Plastic Industries was a family run partnership firm. The deceased had 50% share in the profits of the said firm. Two premises i.e. (i) an office at 63, 3 rd Bhoiwada, Bhuleshwar, Mumbai and (ii) a factory at Amar Estate, Sion-
Trombay Road, Chembur, Mumbai, were in possession of the said firm as tenant thereof.
(c) The plaintiffs assert, during the lifetime of Rukshamaniben and the deceased, disputes arose between the defendant, on the one part, and the rest of the family members, on the other part, as the defendant allegedly developed an illicit relationship with a married woman. The defendant allegedly brought the said lady into the suit flat. Eventually, as the relationship further deteriorated, the deceased instituted L.E. Suit No.196 of 2009 in the Court of Small Causes at Mumbai seeking eviction of defendant alongwith his partner from the suit flat.
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906-IA16701-2024INS102-2024.DOC
(d) The plaintiffs assert, after Harshad passed away in the year 2010, the defendant drove out the plaintiff No.1 from the suit flat and usurped the suit flat. The defendant took control of the family business of M/s. Maniar Plastic Industries. Plaintiff No.1 was constrained to take shelter in the house of plaintiff No.2, who was then residing in Nigeria. The defendant did not make any provision for plaintiff No.1. When the plaintiffs asserted their rights in the suit property, the defendant gave empty assurances. Ultimately vide notice dated 5 th May, 2023 the defendant claimed exclusive ownership over the suit property to the exclusion of the plaintiffs.
(e) As attempts to arrive at an amicable settlement of the dispute did not fructify, the plaintiffs were constrained to institute this suit for the reliefs, inter alia, of declaration that the plaintiffs and defendant, are entitled to 1/3 undivided share, right, title and interest in the estate of the deceased, and for the sale of the suit flat by invoking the power under Section 2 of the Partition Act, 1893 and the distribution of the sale proceeds thereof in accordance with the respective shares of the parties.
(f) In response to the suit summons, the defendant has appeared and filed the instant application for rejection of the 3/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC plaint. The substance of the application is that from the averments in the plaint, especially in paragraphs 6, 22 and 23, it becomes clear that the plaintiffs, on their own showing, have claimed that plaintiff No.1 was ousted from the suit flat in or about September, 2010. Thus, cause of action to institute the suit arose in the year 2010 itself. However, the suit came to be instituted on 5th February, 2024 after a lapse of 13 and half years; clearly beyond the statutory period of limitation prescribed under Article 65 of the Limitation Act, 1963.
(g) The defendant asserted the cause of action premised on the notice dated 5th May, 2023 is misconceived. As there was ouster of plaintiff No.1 from the joint family properties in the year 2010 itself, the reliefs claimed by the plaintiffs are grossly barred by law of limitation. Therefore, the plaint deserves to be rejected as from the statement in the plaint itself, it becomes explicitly clear that the relief claimed is barred by law of limitation.
(h) The plaintiffs have resisted the application by filing an affidavit-in-reply. The plaintiffs assert the application for rejection of plaint is wholly misconceived. The defendant has resorted to selective reading of the averments in the plaint to defeat a legitimate right of the plaintiffs in the estate left behind 4/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC by the deceased. The fact that plaintiff No.1 was compelled to move out of the suit flat does not imply that either there was relinquishment of the claim over the estate of the deceased by the plaintiff No.1 or there was ouster of plaintiff No.1. Being the co-owners of the estate of the deceased alongwith the defendant, the plaintiffs have right to every infinitesimal portion of the estate of the deceased. Thus, the provisions contained in Article 65 of the Limitation Act have no application at all to the instant suit as under no circumstances can it be said that the possession of the defendant, a co-owner, became adverse qua the plaintiffs.
(i) In the alternative, the plaintiffs contend that in view of the order passed by the supreme Court dated 10 th January, 2022 in Suo Motu Writ Petition (C) No.3 of 2020 on account of the exigency of the situation which arose due to Covid-19 Pandemic, the period of limitation stood suspended during the period 15th March, 2020 to 20th February, 2022. Resultantly, the suit instituted on 5th February, 2024 would be within the stipulated period of limitation.
3. In the backdrop of the aforesaid facts and pleadings, I have heard Mr. Rajiv Narula, the learned Counsel for the applicant - defendant and Mr. Eklaspur, the learned Counsel for 5/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC the plaintiffs - respondents, at some length. With the assistance of the learned Counsel for the parties, I have perused averments in the plaint and the material on record.
4. Mr. Narula, the learned Counsel for the defendant, submitted that it is well recognized that the provision contained in Order VII Rule 11(d), empowering the Court to reject the plaint if it appears to be barred by any law, subsumes in its fold the law of limitation. If from the bare perusal of the averments in the plaint, the Court can record a finding that the suit has been instituted beyond the stipulated period of limitation, there is no impediment in rejecting the plaint. Mr. Narula further submitted that, in the case at hand, the fact that the plaintiff No.1 was ousted of the suit property in the year 2010 is borne out by the averments in the plaint in no uncertain terms. Thus, no trial is warranted and the proceedings can be nipped in the bud on the basis of the averments in the plaint itself, which is the true object of the provisions contained in Order VII Rule 11(d) of the Code.
5. To bolster up this submission Mr. Narula placed a strong reliance on the decision of the Supreme Court in the case of Hardesh Ores (P) Ltd. vs. Hede and Company 1, wherein it was 1 (2007) 5 Supreme Court Cased 614.
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906-IA16701-2024INS102-2024.DOC enunciated that the term, "law" within the meaning of clause (d) of Order VII Rule 11 includes the law of limitation as well. To draw home the point that an inference of ouster can be drawn on the basis of averments in the plaint, especially paragraphs 6, 22 and 23, and that furnishes a justifiable foundation for rejection of the plaint as being barred by law of limitation, Mr. Narula placed reliance on the decisions of the Supreme Court in the cases of Vidya Devi alias Vidya Vati (dead) by LRs. vs. Prem Prakash and ors.2 and Mohammadbhai Kasambhai Shiekh and ors. vs. Abdulla Kasambhai Sheikh3.
6. Per contra, Mr. Eklaspur, the learned Counsel for the plaintiffs, stoutly submitted that the application for rejection of plaint proceeds on an incorrect impression of law governing the rights of the co-owner. It was submitted that possession of one co-owner is for and on behalf of the co-owners. To defeat the rights of a co-owner, another co-owner has to prove a clear case of ouster with all the essential ingredients that are required to be established to sustain a claim of acquisition of ownership by adverse possession.
7. Mr. Eklaspur further submitted that the entire exercise of the defendant is driven by an oblique motive to deprive 2 (1995) 4 Supreme Court Cases 496.
3 (2004) 13 Supreme Court Cases 385.
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906-IA16701-2024INS102-2024.DOC the rights of his mother and sister. The basis of the claim of ouster is premised on a selective reading of the averments in paragraphs 6, 22 and 23 of the plaint. It was urged that for ascertaining whether a plaint discloses a cause of action or is barred by any law, the plaint is required to be read as a whole and not a sentence or paragraph here or there.
8. Mr. Eklaspur further urged that the Court cannot lose sight of the circumstances in which the plaintiff No.1, the widow of the deceased, was forced to take refuge in the house of plaintiff No.2. The fact that the deceased during his lifetime had instituted a suit against the defendant and his partner also has a significant bearing on the claim of adverse possession. In this backdrop, by no stretch of imagination, the defendant can be said to have perfected his title by prescription or ouster, as alleged. A strong reliance was placed on the decision of the Supreme Court in the case of Govindammal vs. R. Perumal Chettiar and others4.
9. Lastly, Mr. Eklaspur submitted that the suit being essentially one for the administration of the estate of the deceased, there is no specific period of limitation prescribed under the Limitation Act, 1963. It was the wholly unjustified 4 (2006) 11 Supreme Court Cases 600.
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906-IA16701-2024INS102-2024.DOC claim of exclusive ownership, vide notice dated 5 th May, 2023, that furnished the cause of action for the suit. To buttress the submission that no specific period of limitation has been prescribed for an administration suit, Mr. Eklaspur placed reliance on the Full Bench decision in the case of Sajanbir Singh Anand and others vs. Raminder Kaur Anand and others 5.
10. The relevant part of order VII Rule 11(d) reads as under:
"11. Rejection of Plaint - The plaint shall be rejected in the following cases:-
(a) ...
(b) ...
(c) ...
(d) Where the suit appears from the statement in the
plaint to be barred by any law,
.......".
11. A plain reading of the aforesaid provision would indicate that the bar to the institution and/or continuation of the suit under any law must manifest from the statement in the plaint. Thus, while considering a prayer for rejection of the plaint, the Court has to consider the averments in the plaint and the documents annexed with it. At this stage, the nature of the defence put-forth by the defendant is of no relevance. In fact, the Court cannot look into the defence set up by the defendant. It is equally well settled that to determine whether the suit is 5 2018(3) Mh.L.J. 892.
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906-IA16701-2024INS102-2024.DOC barred by any law, the plaint is required to be read as a whole. It is impermissible to pick and choose one sentence or paragraph from the plaint to adjudge whether the plaint is barred by any law.
12. The legal position is crystallized. A useful reference can be made to the decision of the Supreme Court in the case of The Church of Christ Charitable Trust & Educational Charitable Society vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee6, wherein after analysing provisions of Order VII Rule 11 and in the context of the previous pronouncements, it was enunciated as under:
"11. This position was explained by this Court in Saleem Bhai & Ors. vs. State of Maharashtra and Others, (2003) 1 SCC 557, in which, while considering Order VII Rule 11 of the Code, it was held as under:
"9. A perusal of Order VII Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11 CPC at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court......."
It is clear that in order to consider Order VII Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit. It is 6 (2012) 8 SCC 706.
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906-IA16701-2024INS102-2024.DOC also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property (1998) 7 SCC 184 and Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 3 SCC 100.
13. While considering the question of rejection of plaint, the Court is also enjoined to read the plaint in a meaningful and not formalistic manner. If an illusion of a cause of action for the suit is created by resorting to cleaver drafting, the Court has to carefully examine the plaint to unearth the true import of the plaint and if the court finds that it is a vexatious and trumped up case, it should not hesitate in nipping such case in the bud.
14. A reference is often made to the decision of the Supreme Court in the case of T. Arivandandam vs T. T. Satyapal and another7, wherein the necessity of a meaningful reading of the plaint was tersely emphasised. The observations of the Supreme Court in the case of T. Arivandandam (supra) read as under:
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of 7 1977(4) SCC 467.11/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 :::
906-IA16701-2024INS102-2024.DOC the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII R 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."
15. In the light of the aforesaid principles which govern the exercise of jurisdiction under Order VII Rule 11, the claim for rejection of the plaint in the instant suit is required to be adjudicated. It is true in paragraph 6 of the plaint, the plaintiffs aver that after the demise of the husband of plaintiff No.1 and father of plaintiff No.2 and the defendant, the plaintiff No.1 was driven out of the suit flat, in September, 2010, and possession thereof was entirely usurped by the defendant to the absolute exclusion of the plaintiffs. The defendant also took control of the family business M/s. Maniar Plastic Industries. To the similar effect are the averments in paragraphs 22 and 23 of the plaint.
16. However, the aforesaid assertions cannot be read in isolation and torn out of context. The plaintiffs have averred with sufficient clarity the genesis of the dispute between the family members, on the one part, and the defendant, on the other, being the induction of his partner by the defendant in the 12/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC suit flat, leading to institution of L.E. Suit No.196 of 2009 by the deceased against the defendant and his partner. It would be contextually relevant to note that in the notice dated 5 th May, 2023, which according to the plaintiffs furnishes the cause of action, the defendant contended that since the abatement of the said suit in the year 2010, the defendant and his wife have been in exclusive, uninterrupted, open, hostile and settled possession of the said flat for the period of more than 12 years and thus they have perfected their title by prescription and have, therefore, become owners of the suit flat by adverse possession.
17. At this stage, the nature of interest of the co-owners in the joint family property deserves to be noted. In this branch of law, certain principles are well recognized. First and foremost, the possession of a property belonging to several co-sharers by one co-sharer shall be deemed to be a possession on behalf of the other co-sharers as well. A co-sharer, in a sense, becomes a constructive trustee of other co-sharers, right and interest in the property. Possession of one co-owner is, in law, the possession of his co-owners. Secondly, possession of one co- owner is, normally, not considered adverse to other co-owners. For the possession of a co-owner to become adverse to the other co-owners, it is necessary that there should be ouster or 13/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC something equivalent to it. At the same time, mere non- participation in the rights and profits of the land by a co-sharer does not amount to ouster so as to give title by adverse possession to the other co-sharer in possession. All the classical requirements of the adverse possession need to be established, with a higher degree of precision and proof, where the right of a co-owner is sought to be defeated on the principle of ouster.
18. A Three-Judge Bench of the Supreme Court in the case of P. Lakshmi Reddy vs. L. Lakshmi Reddy 8 expounded the law in the following words:
"4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [61 Ind App 78 at p 82). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See, Radhamoni Debi v. Collector of Khulna [27 Ind App 136 at p 140 (PC)]. 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 coheir 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-heir's title. (See Corea v. Appuhamy [1912] A.C. 230(C)]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other 8 AIR 1957 SC 314.14/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 :::
906-IA16701-2024INS102-2024.DOC so as to constitute ouster. 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 A.I.R. 1919 P.C. 44 (D) quotes, apparently with approval, a passage from Culley v. Deod Taylerson [(1840) 3 P & D 539: 52 RR 566 (E)] which indicates that such a situation may Tell lead to an inference of ouster "if other circumstances concur". (See also Govindrao v. Rajabai [AIR 1931 PC 48 (F)]. It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
(emphasis supplied)
19. Following the aforesaid pronouncement in the case of Md. Zainulabudden vs. Sayed Ahmed Mohideen9, the Supreme Court enunciated that it is well settled that where one co-heir pleads adverse possession against another co-heir it is not enough to show that one out of them was in sole possession and enjoyment of the profits of the properties. The possession of one co-heir is considered in law as possession of all the co- heirs. The co-heir in possession cannot render his possession adverse to the other co-heirs not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. It is a settled rule of law as between co- heirs that there must be evidence of open assertion of hostile 9 (1990) 1 SCC 345.
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906-IA16701-2024INS102-2024.DOC title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to construe ouster.
20. In the case of Vidya Devi (supra), on which reliance was placed by Mr. Narula, the requirements of "ouster" were postulated as under:
"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."
(emphasis supplied)
21. In the case of Md. Mohammad Ali (dead) by LRs vs. Jagadish Kalita and others10, after a survey of the precedents, the Supreme Court enunciated the law as under:
"19. 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 10 (2004) 1 SCC 271.16/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 :::
906-IA16701-2024INS102-2024.DOC 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.
20. 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. ............
25. 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."
(emphasis supplied)
22. In the light of the aforesaid enunciation of law, reverting to the facts of the case, it is imperative to note that the relationship between the parties was fractious, even during the lifetime of the deceased. As is evident from the material on record, the deceased father of the defendant was constrained to institute a suit to evict the defendant and his partner from the suit flat. The extent to which the relations between the 17/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC defendant, on the one part, and the other family members, on the other part, were strained can be gauged from the said factum of institution of a suit for eviction. It is in this backdrop, the allegations of the plaintiffs, that plaintiff No.1 was compelled to leave the suit flat after the demise of her husband, are required to be appreciated. A mere assertion that the defendant by his acts and conduct made the stay of plaintiff No.1 in the suit flat unbearable, need not necessarily justify an inference of either relinquishment of interest on the part of plaintiff No.1 or declaration of a hostile animus on the part of the defendant. Whether the said fact constituted ouster would be a matter for adjudication at the trial.
23. A heavy onus rests on the defendant to establish the classical requirement of adverse possession by cogent evidence. The fact that the initial possession of the defendant was either permissive or referable to a lawful title cannot be lost sight of. It would be impermissible for the defendant to put an end to such possession by a secret desire. Nothing short of ouster or something equivalent to ouster can only bring about that result.
24. It would be contextually relevant to note that the stated case of the defendant in the notice dated 5th May, 2023 was perfection of title by prescription on the basis of hostile 18/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC possession for 12 years from the abatement of the suit instituted by the deceased, in the year 2010. Evidently, the said suit was on the premise that the defendant was a gratuitous licensee. Suffice to note a claim for adverse possession by a person, who is stated to be a licensee is tenuous. Therefore, the question as to whether the suit is barred by law of limitation, being essentially a mixed question of fact and law, it would be rather hazardous, at this stage, to accede to the submission on behalf of the defendant that the instant suit is barred by law of limitation.
25. The reliance placed by Mr. Eklaspur on the decision of the Supreme Court in the case of Govindammal (supra) appears to be well founded. In the said case, it was enunciated that in order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case. In the facts of the said case, it was further observed that, it was the widow, who has been thrown out and she has been moving from pillar to post. The relief cannot be denied to her just because she sent notice claiming partition of the properties and she did not file any suit 19/20 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 27/07/2024 17:06:46 ::: 906-IA16701-2024INS102-2024.DOC thereafter and the stepsons were holding the properties adversely and hostile to her knowledge.
26. There is another significant factor, which renders the claim for rejection of the plaint untenable. Plaintiff No.2, being a Class-I heir of the deceased, is entitled to claim a share in the properties left behind by the deceased in her own right. Even if the averments in the plaint are read in the manner desired by the defendant, the claim of plaintiff No.2 cannot be said to be barred by law of limitation, by any stretch of imagination.
27. Resultantly, the application for rejection of plaint, being devoid of substance, deserves to be rejected.
28. Hence, the following order:
:ORDER:
(i) Application stands rejected.
(ii) Costs in cause.
[N. J. JAMADAR, J.]
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