Sheru (Since Deceased) Through His Lrs ... vs Zannat And Ors on 18 July, 2019

[Cites 14, Cited by 0]

Himachal Pradesh High Court

Sheru (Since Deceased) Through His Lrs ... vs Zannat And Ors on 18 July, 2019

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 209/2007 Reserved on: 11.7.2019 Date of decision: 18.7.2019 .

Sheru (since deceased) through his LRs Hind Rustam and ors. ...Appellants Versus Zannat and ors. ....Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 Yes For the appellants: Mr. Bhupender Gupta, Senior Advocate with Ms. Rinki Kashmiri, Advocate.

For the respondents: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, for respondents No. 1 to 5, 7 and 8. None for respondents No.6 (a) to 6 (c).

Tarlok Singh Chauhan, Judge The defendants are the appellants, who successfully proved their adverse possession over the suit land before the learned trial court, however said findings were reversed by the learned first appellate court constraining them to file the instant appeal.

Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 2 2 The parties shall be referred to as the "plaintiffs"

and the "defendants".

3 Brief facts giving rise to the instant case are that the plaintiffs and defendants No. 1 and 2 had been recorded as joint owners in possession of the suit land in two villages, Surajpur and Damowala in Tehsil Kasauli, District Solan.

The plaintiffs, who had been residing in Kalka (Haryana) since their childhood, in the year 1986 applied to the Tehsildar Kasauli for partition of their shares in the suit land.

The defendants No. 1 and 2 resisted the claim of the plaintiffs by raising question of title by setting up their ownership in the suit land on the basis of ouster, which objection was overruled by the Tehsildar, Kasauli. However, in appeal, the Sub Divisional Collector also refused their claim. Thereafter, in further appeal before the Divisional Commissioner, the plea of the defendants was accepted as the plaintiffs were found out of possession and they were thereafter directed to get the question of title raised by the defendants decided by the civil court. It was against the order of Divisional Commissioner, the plaintiffs filed the suit that they along with defendants were coowners in possession of ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 3 the suit land and the order passed by the Divisional Commissioner is without application of mind being wrong, .

illegal and contrary to the factum on spot. The plaintiffs prayed for decree of injunction against the defendants restraining them from interfering in their possession.

4 The defendants contested the suit by filing written statement, wherein they claimed to have become owners of the suit land by adverse possession. It was pleaded that the defendants had been coming in exclusive possession of the suit land as the plaintiffs were residing at Village Kedarpur, situated in Haryana at a distance of more than 60 kms from the suit land. The hostile possession of the defendants came to the knowledge of the plaintiffs and public at large immediately when after the death of father of the parties, which took place in 1990, the defendants did not permit the plaintiffs to pay land revenue of their share to the 'Numberdar' and also resisted the claim of the plaintiffs by use of force over their share in the suit land. It was also claimed that the defendants had spent huge money in improvement and development of the suit land, whereas the plaintiffs never participated in the profits and loss of the land in question. It was also alleged that the plaintiffs are ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 4 estopped from filing the suit on account of admission, acts, conduct and deeds, the suit is barred by res judicata, the .

suit is bad for nonjoinder of necessary parties and the plaintiffs have no locus standi to file the present suit.

5 The issues were firstly framed on 12.9.1990 and thereafter on 29.7.1993 and the same read as under:

1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP

2. Whether the orders passed by Divisional Commissioner in revision No.7/88, 8/88, 9/88 and 10/88 on 2.3.1989 are wrong, illegal and not binding on the rights of the plaintiff as alleged? OPP

3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for?

OPP

4. Whether the plaintiff is estopped from filing the present suit as alleged? OPD

5. Whether the defendants No. 1 and 2 have become owner of the suit land by way of adverse possession? OPD

6. Whether the suit is bad by principle of res judicata as alleged? OPD

7. Whether the suit is bad for nonjoinder of necessary parties as alleged?OPD

8. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 5

9. Whether the revenue entries in favour of plaintiff in respect of the suit land are wrong as alleged? OPD .

10. Whether the plaintiff has no cause of action to file the present suit as alleged? OPD.

11. Relief.

6 After recording the evidence and evaluating the same, the learned trial court vide judgment and decree dated 18.4.1997 dismissed the suit. However, the judgment and decree so passed by the learned trial court was reversed by the learned first appellate court vide judgment and decree dated 20.1.2007 constraining the defendants to file the instant appeal.

7 On 3.4.2008, the instant appeal came to be admitted on following substantial question of law:

"1. Whether there has been misreading of evidence by the learned First Appellate Court in recording the findings in regard to adverse possession?"

8 I have heard the learned counsel for the parties and have also gone through the records of the case.

Substantial Question of Law No.1 9 Article 65 of the Limitation Act reads as under: ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 6 Description of suit Period of Time from limitation which period begins to run For possession of immovable Twelve When the .

property or any interest therein years possession of based on title. the defendant Explanation.--For the purposes becomes of this article-- adverse to the

(a) where the suit is by a plaintiff.

remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;

(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;

(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession.

10 Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well settled principle that a party claiming adverse possession must prove that his possession is " nec vi, nec clam, nec precario" i.e. peaceful, open and ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 7 continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is .

adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual visible, exclusive, hostile and continued over the statutory period.

Therefore, a person who claims adverse possession has to show (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party ; (d) how long his possession is continued; and (e) his possession was open and undisturbed. It has to be remembered that the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession (Refer Dr. Mahesh Chand Sharma vs. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 1).

11. Property held in common, by two or more persons, whatever be its nature or origin, is said to be joint property and the owners thereof joint owners. Joint property envisages a community of interest (ownership) and a commonality of possession vested in the entire body of owners called co ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 8 sharers/joint owners. This body of owners is joint, both in possession and in ownership of the property and every cosharer .

shall be owner in possession of every inch of the joint estate.

Inherent in his status as a cosharer/joint owner and flowing from his status as a joint owner or a cosharer of the joint property is the right to assert ownership with respect to every part and parcel of the joint property. The status as a cosharer would be preceded by a tangible act of conferring proprietary status, whether by way of membership of a coparcenary or by devolution of interest, pursuant to inheritance or by assignment of property by sale etc.

12. A cosharer asserts joint title and possession even, where other cosharers/joint owners are in separate possession of different parcels of land and as a natural consequences, a co sharer in possession of a specific area of joint property possesses the property for and on behalf of all other cosharers/joint owners. Cosharers may and often do for the purpose of better management of the joint estate hold separate possession of parcels of joint land. This separation of possession, without a corresponding intent, to sever the joint status of the community of joint owners does not confer a right upon a cosharer in separate possession to assert his separate ownership. A joint owner, ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 9 therefore, would be owner of a specific share in the entire joint property but would not be entitled to claim separate ownership of .

any specific and particular portion of the joint property till such time, as the property remains joint.

13. The legal relationship between coowners is not regulated by any statute. It is governed by judicial decisions, and the principles laid down by judicial decisions are based on the 14 to principle of equity, justice and good conscience.

The inter se rights and liabilities of the cosharers were a subject matter of a Division Bench decision of the Punjab and Haryana High Court in Sant Ram Nagina Ram versus Daya Ram Nagina Ram AIR 1961 Punjab 528 and the following propositions inter alia were settled: "1. A coowner has an interest in the whole property and also in every parcel of it.

2. Possession of joint property by one coowner is in the eye of law, possession of all even if all but one are actually out of possession.

3. A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.

4. The above rule admits of an exception when there is ouster of a coowner by another. But in order to negative the ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 10 presumption of joint possession on behalf of all, on the ground of ouster, the possession of a coowner must not only be exclusive but also hostile to the knowledge of either as, .

when a coowner openly asserts his own title and denies that of the other.

5. Passage of time does not extinguish the right of the co owner who has been out of possession of the joint property except in the event of ouster or abandonment.

6. Every coowner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other coowners.

7. Where a coowner is in possession of separate parcels under an arrangement consented by the other coowners, it is not open to any body to dispute the arrangement without the consent of others except by filing a suit for partition."

15. A coowner's possession of the common property is not prima facie adverse against another coowner, because such possession is considered as one on behalf of all the coowners, except when there is clear proof of ouster or assertion of a hostile title.

16. As each coowner is entitled to possess every bit of the common property and is not restricted to enjoyment according to his share so long as he does not deny to the other coowners an equal right of possession and enjoyment of the common property, ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 11 he is under no obligation either to account for or to pay compensation to such cosharers. The matter is different if there .

is objection from the other cosharers and no amicable arrangement is arrived at. That would equally be the case where there is ouster or denial of the title of the other coowners and an assertion of a hostile title in himself.

17. The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right and in fact deny the same. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed.

In order to determine whether the act of a person constitutes adverse possession is 'animus in doing that act' and it is most crucial factor. Adverse possession commences in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of owner's right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 12 extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The persons setting up .

adverse possession may have been holding under the rightful owner's title, i.e., trustees, guardians, bailiffs or agents, such person cannot set up adverse possession. Burden is on the defendant to prove affirmatively.

18. Thus, what is clear from the aforesaid exposition of law is that the concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of title of the true owner. The plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession has to show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. It is, therefore, explicit that unless there is specific plea and proof that adverse possession has disclaimed the right of the true owner and asserted title and possession to ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 13 the knowledge of the true owner within a statutory period and the true owner has acquiesced to it, the adverse possessor cannot .

succeed to have it established that he has perfected his right by prescription.

19. The pleading must be specific to the date when possession become adverse because it is more than settled law that mere possession however long does not necessarily mean that it is adverse to the true owner. Where a plea of adverse possession is taken, the pleadings are of utmost importance and anything, if found missing in pleadings, it may be fatal to such plea so raised. A person claiming adverse possession must prove as to how and when adverse possession commenced and whether fact of adverse possession was known to the real owner.

20. As regards adverse possession amongst or between coowners, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by a person claiming adverse possession to the knowledge of the others so as to constitute an ouster. A coowner in possession cannot render his possession adverse to the other coowner not in possession, merely by any secret hostile animus on his part to the other co owner's title.

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21. Locus classicus on the subject is the judgment of the Hon'ble Supreme Court in P. Lakshmi Reddy vs. L. Lakshmi .

Reddy, AIR 1957 SC 314 wherein in para4 it was observed as under:

"4. ......But it is well settled that in order to establish adverse possession of one coheir 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 nonpossessing coheir by the coheir in possession who claims his possession to be adverse should be made out. The possession of one coheir is considered, in law, as possession of all the coheirs. When one coheir 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 coheir not in possession merely by any secret hostile animus on his own part in derogation of the other coheir's title. (See Corea v. Appuhamy, 1912 AC 230 (C)). It is a settled rule of law that as between coheirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. 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 interfered when one coheir 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 ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 15 or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 at p. 47(D) quotes, .

apparently with approval, a passage from Culley v. Doed Taylerson, (1840)3 P&D 539: 52 RR566(E) which indicates that such a situation may well lead to an inference of outster "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 coheir by his adverse possession."

22. Legal r principles relating to ouster and hostile possession have been elaborately considered by the Hon'ble Supreme Court in Md. Mohammad Ali (dead) by LRS vs. Jagadish Kalita and others (2004) 1 SCC 271, wherein it was observed as under:

LEGAL PRINCIPLES RELATING TO OUSTER AND ADVERSE POSSESSION :

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

18. On the other hand, if no partition by meets and bounds took place, the respondents herein were bound to ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 16 plead and prove ouster of the plaintiff and/ or his predecessors' interest from the land in question. For the said purpose, it was obligatory on the part of the .

respondents herein to specifically plead and prove as to since when their possession became adverse to the other co sharers. Moreover, if the possession of Prafulla Kalita was permissive or he obtained the same pursuant to some sort of arrangement as had been observed by the High Court, the plea of adverse possession would fail.

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 cosharer, as is well settled, becomes a constructive trustee of other cosharer and the right of the appellant and/or his predecessors in interest would, thus, be deemed to be protected by the trustee. As noticed hereinbefore, the respondents in their written statement raised a plea of adverse possession only against the third set of the defendants. A plea of adverse possession set up by the respondents, as reproduced hereinbefore, do not meet the requirements of law also in proving ouster of a co sharer. But in the event, the heirs and legal representatives of Gayaram Kalita and Kashiram Kalita partitioned their properties by meets and bounds, they would cease to be co sharers in which event a plea of adverse possession as contra distinguished from the plea of ouster could be raised. The courts in a given situation may on reading of the written statement in its entirety come to the conclusion that a proper plea of adverse possession has been raised if requisite ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 17 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.

21. For the purpose of proving adverse possession/ ouster the defendant must also prove animus possidendi.

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

23. The respondents herein, as noticed hereinbefore, has failed to raise any plea of ouster. No finding has been arrived at by the High Court as to from which date they began to possess adversely against the plaintiff or his ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 18 predecessors in interest. Mere nonpayment of rents and taxes may be one of the factors for proving adverse possession but cannot be said to be the sole factor. The .

High Court has not assigned any reason as to how there had been an open ouster by Prafulla Kalita since 1950.

24. Furthermore, the first appellate court applied a wrong principle of law in relation to interpretation of Article 65 of the Limitation Act, 1963. The High Court fell into the same error.

25. Possession of a property belonging to several co sharers by one cosharer, it is trite, shall be deemed that he possesses the property on behalf of the other cosharers unless there has been a clear ouster by denying the title of other cosharers and mutation in the revenue records in the name of one cosharers 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.

26. In the instant case, the dispute between the parties as regard mutation of the name of the appellant was finally decided, as noticed hereinbefore, only on 26.9.1977. The Money Suit filed by him was also dismissed by the Appellate Court on 19.5.1979. The appellant instituted title suit on 24.10.1979. In that view of the matter, the question of the respondents acquiring title by ouster of the appellant on the basis of the order of the Municipal Authorities in the mutation proceedings does not arise.

27. So far as submission of Mr. Ghosh to the effect that the decision in the money suit shall operate as res judicata is stated to be rejected.

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28. In the aforementioned suit, the only issue which could be raised and determined was as to whether respondent No. 3 was a tenant of the plaintiff. As the plaintiff or his .

predecessors in interest failed to show that respondent No. 4 was inducted by them, his claim for arrears of rent was rejected but the Court while determining the said issue could not have gone into a pure question of title as well as the question as to whether the respondents herein acquired title by adverse possession.

SOME CASE LAWS ON THE QUESTION OF OUSTER/ADVERSE POSSESSION :

29. In Karbalai Begum vs. Mohd. Sayeed and Another [(1980) 4 SCC 396], the law has been stated by this Court in the following terms :

"...It is well settled that mere non participation in the rent and profits of the land of a cosharer does not amount to an ouster so as to give title by adverse possession to the other cosharer in possession..."

30. In Annasaheb Bapusaheb Patil and Others etc. etc. Vs. Balwant alias Balasaheb Babusaheb Patil (Dead) by LRs. and Heirs and Others etc.etc. [(1995) 2 SCC 543, this Court held: (SCC p.554, para 15] "15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 20 enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."

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

(SCC p. 505, paras 2728) "27...it will be seen that in order that the possession of coowner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case which has rsince been followed in Mohd. Zainulabudeen v.

Sayed Ahmed Mohideen.

28. 'Ouster' does not mean actual driving out of the cosharer 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 coowner. 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 coowner. Thus, a coowner, can under law, claim title by adverse possession against another coowner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."

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32. Yet again in Darshan Singh and Others Vs. Gujjar Singh (Dead) by LRs. and Others [(2002) 2 SCC 62], it is stated (SCC pp. 6566, para 7):

.

"...It is well settled that if a cosharer is in possession of the entire property, his possession cannot be deemed to be adverse for other cosharers unless there has been an ouster of other co sharers."

It has further been observed that : (SCC p.66, para

9) r "9. In our view, the correct legal position is that possession of a property belonging to several co sharers by one cosharer shall be deemed that he possesses the property on behalf of the other cosharers 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 cosharer would not amount to ouster unless there is a clear declaration that title of the other cosharers was denied."

23. Thus, what can be taken to be well settled is that the possession of a coheir is in law treated as possession of all the coheirs. If one coheir has come in possession of the properties, it is presumed to be on the basis of a joint title. A coheir in possession cannot render its possession adverse to other coheirs not in possession, merely by any secret hostile animus on his own ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 22 part, in derogation of the title of his other coheirs. Ouster of the other coheirs must be evidenced by hostile title coupled by .

exclusive possession and enjoyment of one of them to the knowledge of the other.

24. The position of Mohamedan law is the same. The estate of a deceased Mohamedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. Where the heirs continue to hold the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title.(See: Syed Shah Gulam Ghouse Mohiudin and others vs. Syed Shah Ahmad Mohiuddin Kamisul Qadri (dead) by his legal representatives and others AIR 1971 SC 2184).

25. In Mohd. Zainulabudeen (since deceased by LRs) vs. Sayed Ahmed Mohideen and others AIR 1990 SC 507, the Hon'ble Supreme Court held that the possession of one coheir is considered possession of all the coheirs and to constitute ouster between coheirs, there must be open ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 23 assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other .

It is apposite to refer to the relevant portion of the observations which reads thus:

"12....It is well settled that where one coheir pleads adverse possession against another coheir then it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. The possession of one coheir is considered in law, as possession of all the coheirs. The coheir in possession cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other coheir's title. Thus, it is a settled rule of law as between coheirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to construe ouster...."

26. As regards this Court, a detailed judgment with respect to the rights and liabilities of coowners have been laid down by this Court in Ashok Kapoor vs. Murtu Devi 2016 (1) Shim. L.C. 207b wherein after taking into consideration some of the aforesaid judgments, it was observed in paras 41 to 45 of the judgment as under:

"41. The exposition of law as enunciated in the various judgments referred above including those of this High ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 24 Court, insofar as the rights and liabilities of the co owners is concerned, gives rise to the following propositions: .

1. A coowner has an interest in the whole property and also in every parcel of it.

2. Possession of joint property by one coowner is in the eye of law, possession of all even if all but one are actually out of possession.

3. A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.

4. The above rule admits of an exception when there is ouster of a coowner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a coowner must not only be exclusive but also hostile to the knowledge of either as, when a coowner openly asserts his own title and denies that of the other.

5. Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property except in the event of ouster or abandonment.

6. Every coowner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co owners.

7. Where a coowner is in possession of separate parcels under an arrangement consented by the ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 25 other coowners, it is not open to any body to dispute the arrangement without the consent of others except by filing a suit for partition.

.

8. The remedy of a coowner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a coowner sets up an exclusive title in himself.

9. Where a portion of the joint property is, by common consent of the coowners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a coowner, if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.

42. It can further be safely concluded that coowners hold property by several and distinct titles but by unity of possession. Actual physical possession is not indispensable, the requirement being of the right to possession of the common property.

43. As a corollary to the aforesaid right, any coowner, in the absence of any agreement to the contrary, has a right to enter upon the common property and take possession of the whole, subject to the equal right of the other coowners with whose right of possession he has no right to interfere.

44. A coowner's possession of the common property is not prima facie adverse against another coowner, ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 26 because such possession is considered as one on behalf of all the coowners, except when there is clear proof of ouster or assertion of a hostile title.

.

45. As each coowner is entitled to possess every bit of the common property and is not restricted to enjoyment according to his share so long as he does not deny to the other coowners an equal right of possession and enjoyment of the common property, he is under no obligation either to account for or to pay compensation to such cosharers. The matter is different if there is objection from the other cosharers and no amicable arrangement is arrived at. That would equally be the case where there is ouster or denial of the title of the other coowners and an assertion of a hostile title in himself."

27. In view of the aforesaid exposition of law, since defendants No.1 and 2 admittedly are cosharers in the suit land and have taken up the plea of adverse possession against another cosharer, who is not in physical possession of the suit land, therefore, it was incumbent upon them to establish that they are not only in open and unequivocal denial of the title of the plaintiffs but such denial or repudiation was to the knowledge of the plaintiffs.

28. Adverting to the pleadings, it would be noticed that the plea of adverse possession has been raised in paras 3, 7 and 8 of the preliminary objections of the written ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 27 statement filed on behalf of defendants No.1 and 2 and the same read as under:

.

"3. That the replying defendants denies the ownership of the plaintiff over the suit land. The replying defendants also entry the correctness of the revenue entries in column of record of rights. At the spot the physical possession of the suit land has been coming peacefully, continuously, uninterruptedly in the hands of the replying defendants as the plaintiff remained out of possession of the suit land throughout his life.

7. That the replying defendants have become absolute owners of the suit property qua the share of plaintiff, by way of adverse possession as the replying defendants assert hostile title coupled with exclusive possession to the knowledge of the plaintiff and public at large.

8. That the replying defendants also claims ouster and abandonment against plaintiff qua his share in the suit property. The plaintiff never participated in profits and losses qua his share in suit land alongwith replying defendants."

29. From the pleadings, it would be noticed that defendants No.1 and 2 have asserted their title over the suit land openly after the death of their father about 19 years back by claiming that they had not permitted the plaintiffs to pay the land revenue of their share to the Numberdar and they also resisted the claim of the plaintiffs by use of force ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 28 over his share in the suit land and since then they are in exclusive possession of the suit land. In short, the defendants .

wanted to establish the plea of ouster. But then coming back to the evidence i.e. the statement of DW3 Gurdayal Singh, who has simply stated that he had seen the suit land in possession of defendants No.1 and 2 and has not stated that such possession was ever denied the title of the plaintiffs or that the defendants had asserted their own hostile title over the suit land at any point of time and, as such, has rightly held by the learned appellate Court that his statement is of no help to the defendants to prove the plea of adverse possession sought by them.

30. Labhu Ram (DW1) is the Numberdar of the area, who in his statement has asserted that after the death of Jiwanu, which took place somewhere in the year 1969, Gulam Din tried to pay the land revenue regarding his share in the suit land, but defendants No.1 and 2 objected to payment of such land revenue and thereafter some altercation took place between them and thereafter Gulam Din never paid the land revenue to him. It would be noticed that there is nothing in the statement of this witness to infer that defendants No.1 and 2 denied the title of Gulam Din ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 29 deceased plaintiff over the suit land at that time and they asserted their own hostile title over the suit land at that time.

Mere objection of payment of land revenue in such circumstances cannot be construed to be the denial of title as has otherwise been rightly held by the learned first Appellate Court.

31. Now, adverting to the statement of defendant Sheroo Ram, who appeared as DW2, it would be noticed that he has simply stated that his father Waziru died in the year 1969 and thereafter the plaintiffs never paid any land revenue regarding the suit land at any point of time to the defendants and once the plaintiffs tried to pay the land revenue but the Numberdar refused to accept such payment which led to some altercation between the parties. Thus, going by the statement of DW2, it would be noticed that it was the Numberdar, who refused to accept the payment of land revenue from Gulam Din and thereafter some altercation took place between the plaintiffs and defendants No.1 and 2.

Not only is his statement contrary to the statement of Numberdar Labhu Ram, but otherwise there is nothing on record to infer that the defendants objected to the payment of ::: Downloaded on - 29/09/2019 00:56:19 :::HCHP 30 land revenue by the plaintiffs regarding their share in the suit land.

32. From the aforesaid discussion, it is absolutely clear that not only the pleadings qua adverse possession are deficit but even proof thereof is totally lacking. In such circumstances, no fault can be found with the judgment and decree passed by the learned first Appellate Court.

accordingly.

r to The substantial question of law is answered

33. Consequently, there is no merit in this appeal and the same is accordingly dismissed. However, taking into consideration the relationship between the parties, they are left to bear their own costs. Pending application(s) if any, also stands disposed of.






    18th July, 2019                       (Tarlok Singh Chauhan)
      (GR)                                         Judge





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