Patna High Court
Kedar Nath Gupta & Ors vs Most.Sheojhari Kuer & Ors on 1 December, 2010
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No.402 OF 1980
Against the judgment dated 26.2.1980 and the decree
following thereupon signed on 12.03.1980 by Sri Ram Prit
Pathak, 6th Additional Subordinate Judge, Chapra in Partition
Suit No. 23 of 1963/ 47 of 1979.
DEVENDRA KUMAR GUPTA & OTHERS
............ Defendant Nos.1 to 3/Appellants
Versus
KAUSHILYA DEVI & OTHERS ............ Plaintiffs-Respondents
********
For the appellants : Mr. S.K. Verma, Sr. Advocate
Mr. Anish Chandra Sinha, Advocate
Mr. Jitendra Kishore Verma, Advocate
For the respondent Nos.39 to 50 : Mr. Kamal Nayan Chaubey,
Sr. Advocate
Mr. Vibhakar Tiwari, Advocate
Mr. Siddharth Harsh, Advocate
For the respondent No. 2 : Mr. Shiv Kr. Dwivedi, Advocate
Dated : 1st day of December, 2010
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar 1. The contesting defendants have filed this first appeal against
Sahoo, J.
the judgment dated 26.2.1980 and the decree signed on 12.3.1980 by Sri Ram Prit Pathak, the learned 6th Additional Subordinate Judge, Chapra in Partition Suit No. 23 of 1963/ 47 of 1979 decreeing the plaintiffs-respondents' suit for partition.
2. The original plaintiff Ram Dayal Sah filed the aforesaid Partition Suit No. 23 of 1967 claiming 1/6th share with respect to Schedule 1 property and 1/12th share with respect to the properties mentioned in Schedule 2 and 3 of the plaint.
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3. The plaintiffs claimed aforesaid relief alleging that their common ancestor was one Sheo Narayan Sah who had three sons namely Imrit Sah, Janaki Sah and Ram Narayan Sah. Imrit Sah had three sons namely Ram Gobind Sah, Ram Ayodhya Sah and Thakur Sah. Thakur Sah died issueless. Ram Gobind Sah had a son, Ram Dayal Sah who is original plaintiff. On his death his legal representatives have been substituted as original respondent Nos. 1 to
7. The second son of Imrit Sah namely Ram Ayodhya Sah had two sons Kamta Prasad Sah and Bishwanath Prasad Sah who were original defendant Nos. 4 and 5. Janaki Sah had a son Ram Saran Sah who in tern had three sons Bhagwati Prasad Sah (Defendant No.1), Makeshwar Prasad Sah (Defendant No.2) and Deoki Prasad Sah (Defendant No.3). The third son Ram Narayan Sah died in 1926 leaving behind his widow Sumitra Devi and a daughter Ram Sawari Kuer. Sumitra Devi died in 1933 and Ram Sawari Kuer died in 1951 without any issue. The genealogical table is as follows :-
Sheo Narayan Sah (1) Ist wife (2) 2nd wife Imrit Sah Janaki Sah Ram Narayan Sah (D-1926) Ramgovind Sah Ram Ayodhya Sah Thakur Sah Ram Sharan Sah Sumitra Devi (Wife) (Died Issuless) (D-1933) Ram Dayal Sah Kamta Bishwanath Bhagwati Makeshwar Deoki Ram Sawari Kuer (Plaintiff in Pd. Sah Pd. Sah Pd. Sah Pd. Sah Pd. Sah (D-1951) T.S.23/63) (Def. 4) (Def. 5) (Def. 1) (Def. 2) (Def.3) (Plaintiff in T.S. 24/41) (R. 1 to 7) (R. 9) (R. 10) (A-1) (A-7) (Earlier Suit) (Heirs of P) Gopaljee Sah Mohanjee Sah Ram Babu Sah Parwati Devi (Wife) And 3 daughters (A-2 to 6) Kedar Nath Banshi Pd. Kanhaiya Pd. Satrughan Pd. Vijay Kumar Dhrub Pd. Brijanandan Lallan Pd.
Gupta Gupta Gupta Gupta Gupta Gupta Gupta Gupta
(Substituted Heirs of A-1)
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4. The further case of the plaintiffs is that the three sons of Sheo Narayan Sah affected partition. Ram Narayan Sah acquired several properties separately and also with defendant Nos. 1 to 3 and their father Ram Saran Sah. He was in separate possession of the property acquired by him separately and was in joint possession of the properties acquired jointly with Ram Saran Sah and defendant Nos. 1 to 3 as tenant in common. Ram Saran and Ram Narayan started a partnership business of cloths in the name of "Ram Narayan Sah Ram Saran Sah". In that business both of them had half and half share.
With the help of the income from that property, several other properties were acquired. The properties acquired out of the income of that cloth business have been described in Schedule 2 and 3 of the plaint. After the death of Ram Narayan Sah his widow Sumitra Devi came in possession over the properties. After death of Sumitra Devi her only daughter Ram Sawari Kuer came in possession of the said properties and she died issueless in 1951. On her death in 1951 the plaintiff and the defendants Nos. 1 to 4 being the heirs of Ram Narayan Sah came in possession over the properties of Ram Narayan Sah by inheritance. The ancestral properties and self acquired properties of Ram Narayan Sah have been given in Schedule 1 of the plaint whereas the properties in which Ram Narayan Sah was tenant in common with defendant Nos. 1 to 3 has been mentioned in detail in Schedule 2 of the plaint. The defendant No.6 is the purchaser from the plaintiffs out of the plaintiffs' share and defendant Nos. 7 to 14 are the purchaser from defendant Nos. 1 to 3 who are also in joint possession, therefore they have also been made defendants in the suit.
5. The defendant Nos. 1 to 3 appeared and filed a contesting written statement. The defendant No.6 appeared and prayed for his transposition as plaintiffs and then he was transposed as plaintiff No.2. -4- The defendant Nos. 4 and 5 filed their written statement supporting the plaintiffs' case. The transferee-defendant from the defendants filed written statement supporting the defendant Nos. 1 to 3.
6. According to the contesting defendant Nos. 1 to 3 who are the appellants in this first appeal, the suit is not maintainable in its present form. The suit is barred by limitation and estoppel and also on the principle of res judicata. Their further defence is that Imrit Sah was the son of the first wife of Sheo Narayan Sah. Janaki Sah and Ram Narayan Sah were the sons of second wife of Sheo Narayan Sah. Since there was dispute between the second wife of Sheo Narayan and wife of Imrit Sah, he (Imrit Sah) separated from his father and brothers. At that time Ram Saran Sah was minor. During this separation Janaki Sah died. Imrit Sah took his share out of the joint family properties. Sheo Narayan Sah for self and as guardian of Ram Saran Sah and Ram Narayan Sah lived together which amounted to an agreement of re- union. After death of Sheo Narayan Sah, Ram Narayan Sah become the Karta of the re-united family. Whatever properties were acquired by Ram Narayan Sah were the joint family properties although stands in the name of family members and both the branch of Ram Narayan and Ram Saran were in joint possession of the properties.
7. The cloth business is joint family properties and not partnership firm business. Out of the properties mentioned in Schedule 1 of the plaint some properties were acquired by the defendant Nos. 1 to 3 and their father, out of their own funds and the said properties have been mentioned in Schedule A to the written statement. The remaining properties of Schedule 1 were joint family properties of Ram Narayan Sah and Ram Saran Sah. Out of Schedule 2 properties the father of defendant Nos. 1 to 3 and defendant Nos. 1 to 3 acquired properties out of their personal funds which have been mentioned in -5- Schedule B to the written statement. The properties as mentioned in Schedule 3 are non-existence and are imaginary.
8. The further case of the defendants-appellants is that neither Sumitra Devi nor Ram Sawari Kuer ever came in possession of the properties after the death of Ram Narayan Sah. After the death of Ram Narayan Sah the suit properties came in possession of defendant Nos. 1 to 3 to the exclusion of Ram Sawari Kuer, Sumitra Devi and the plaintiffs and defendants No. 4 and 5. These defendants have acquired title by adverse possession and ouster on the properties of Ram Narayan Sah. These defendants further alleged that the father of defendant Nos. 4 and 5 had filed a partition suit being Partition Suit No. 29 of 1927 for self and on behalf of defendant Nos. 4 and 5 against Ram Saran Sah and these defendants claiming half share in the properties of Ram Narayan Sah which was compromised in which the father of defendant Nos. 4 and 5 accepted that Ram Saran died in state of jointness with these defendants. The said compromise decree will operate as res judicata and estoppel against the plaintiffs and the defendant Nos. 4 and 5.
9. The Further case of the defendant Nos. 1 to 3 is that in the year 1941 the daughter of Ram Narayan Sah namely Ram Sawari Kuer had filed Title Suit No. 24 of 1941 for declaration of her title and recovery of possession over properties of Ram Narayan Sah on allegation that Ram Narayan Sah died in state of separation from the branch of his brothers. The suit being Title Suit No. 24 of 1941 was filed against these defendant Nos. 1 to 3 and the plaintiffs and defendant Nos. 4 and 5. Ram Saran Sah and these defendants contested the said suit on two grounds firstly that Ram Narayan Sah died in state of jointness with them and on his death the properties devolved upon them on the principle of survivorship and secondly that they are coming in possession over the entire properties of Ram -6- Narayan Sah adversely and have acquired title by adverse possession. Originally the suit filed by Ram Sawari Kuer being Title Suit No.24 of 1941 was dismissed by the trial court. Thereafter Ram Sawari filed First Appeal No. 60 of 1944 before this High Court which was allowed and thereafter these defendants filed appeal before the Hon'ble Supreme Court and the judgment of the High Court was set aside and the first appeal was remanded to the High Court. After remand the said first appeal No. 60 of 1944 abated as such was dismissed. Therefore, the judgment and decree of the learned court below became final which will operate as res judicata in the present case as the plaintiffs and father of the defendant Nos. 4 and 5 were party in the said title suit No. 24 of 1941.
10. The further case of these defendants is that they have spent huge amount i.e. Rs. 25,342.6 anna in defending their right against Kanhaiya, who claimed as the adopted son of Ram Sawari Kuer and prayed for satisfaction on the death of Ram Sawari Kuer. They also deposited Rs. 1,70,549/- for satisfaction of decree in Title Suit No. 11 of 1951 filed by Bhagwati Prasad for specific performance of contract alleged to have been executed by Ram Saran Sah for selling the lands of Ram Narayan Sah. They have also spent Rs. 20,225/- in the litigation. They also spent Rs. 6311.6 anna in safeguarding the suit property. They spent Rs.50,000/- after death of Ram Narayan Sah on reconstruction of the house of Mohalla Telpa and have spent Rs.50,000/- in the house of Mohalla Sahelganj and Rs.80,000/- was spent in construction of a house. In the event, if the suit is decreed, the plaintiffs have to pay the proportionate cost of the amount invested by the contesting defendants.
11. On the basis of the above pleadings the learned trial court framed the following issues.
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"1. Is the suit as framed maintainable ?
2. Have the plaintiffs got any cause of action for the suit ?
3. Is the suit barred by limitation, adverse possession and ouster ?
4. Is the suit hit by section 34 of the specific relief act ?
5. Is the suit barred by estoppel and res judicata ?
6. Whether the three sons of Sheo Narayan Sah separated from each other and Ram Sharan Sah and Ram Narayan Sah reunited ?
7. Whether the firm "Ram Narayan Sah Ram Sharan Sah"
was the partnership firm or it was a joint family business ?
8. Whether Imrit Sah was full brother of Janaki Sah and Ram Narayan Sah ?
9. Have the plaintiffs unity of title and unity of possession in respect of suit properties and are they entitled to a decree for partition, if so in which properties and to what extent ?
10. Whether the defendant No. 1 to 3 spent the amount in protecting the suit properties ? if so what was the amount and to what extent they are entitled to proportionate contribution from the plaintiffs and defendant No. 4 and 5.
11. To what relief if any the plaintiffs are entitled ?"
12. After trial the learned trial court while deciding the issue Nos. 5 and 6 held that the suit is not barred either by the principle of res judicata or by estoppel and also held that sons of Sheo Narayan Sah had in fact separated from one-another and Ram Saran Sah and Ram Narayan Sah never reunited as alleged by the contesting respondent Nos. 1 to 3. While deciding issue No.8 the learned court below found that Imrit Sah was full brother of Janki Sah and Ram Narain Sah. While deciding issue No.7 the learned court below found that the firm "Ram Narayan Sah Ram Saran Sah" was not a partnership business rather it was a joint business of Ram Narayan -8- Sah and Ram Saran Sah in which both of them were tenant in common. While deciding issue No.3 the learned court below found that the suit is neither barred by law of limitation nor by the adverse possession and ouster. While deciding issue No.10 the learned court below found that the defendants have miserably failed to prove that they had incurred any expenditure as given in their written statement. While deciding issue Nos. 1, 2, 4, 9 and 11 jointly the learned court below came to the conclusion that the plaintiffs and defendant Nos. 4 and 5 who belong to branch of Imrit Sah are also co-sharer in respect of the property of Ram Narayan Sah along with defendant Nos.1, 2, 3 who are in possession over the property of Ram Narayan Sah and, therefore, the plaintiffs and defendant Nos. 4 and 5 have got unity of title with defendant Nos. 1 to 3 who are in possession over the property of Ram Narayan Sah. The learned court below also observed that it is settled principles of law that possession of one co-sharer is possession of other, therefore, it has got to be held that there is unity of possession also between the plaintiffs and defendant Nos. 4 and 5 on the one hand and defendant Nos. 1 to 3 on the other hand in respect of the properties of Ram Narayan Sah.
13. It appears that on 19.11.1979 a petition was filed by defendant Nos. 1 to 3 for abatement of the suit relating to Khata No. 10, 12, 95 and 188 on the ground that consolidation proceeding has started. Accordingly, the learned court below held that the suit abated in part in respect of the lands pertaining to Khata No. 10, 12, 95 and 188 as the others did not dispute the fact of the issuance of notification under Section 3(a) of the Bihar Consolidation of Holdings Act. So far the rest of the properties the plaintiffs' suit was decreed except Schedule 3. The learned court below found that there is no material evidence with regard to Schedule 3 properties. -9-
14. Mr. S.K. Varma, learned Senior counsel appearing on behalf of the appellants submitted that the learned court below has miserably failed to appreciate question of law raised by the appellants and held that the suit is maintainable in its present form and it is not barred by principle of res judicata and wrongly decreed the plaintiffs' suit. The learned counsel further submitted that although there are oral and documentary evidence regarding adverse possession and ouster, the learned court below at paragraph 46 of the impugned judgment without discussing regarding adverse possession observed that the plaintiffs are co-sharer of defendant Nos. 1, 2 and 3 in respect of the properties of Ram Narayan Sah therefore, the plea of adverse possession is not applicable and so far plea of ouster is concerned the defendants have not adduced any evidence on this score which is an error of record. The learned counsel further submitted that the present original plaintiff Ram Dayal Sah was defendant No.12 in the Title Suit No. 24 of 1941 which was filed by Ram Sawari Kuer for declaration of her title and recovery of her possession. She in the plaint of that title suit admitted to have been ousted by the defendant Nos. 1 to 3 of the present suit. On her death in the year 1951 the plaintiff did not get himself substituted in First Appeal No. 60 of 1944 and did not carry on the first appeal after being transposed as appellant and therefore, the present appellants had already prescribed their title against Ram Sawari Kuer. According to the learned counsel since Ram Sawari admitted her ouster since the year 1933 vide paragraph 12 of the plaint of title suit No. 24 of 1941 Ext. 5 and on this admission she filed the said title suit for recovery of possession wherein she alleged that cause of action arose on 10th April 1933 i.e. on the death of Most. Sumitra Devi on 10th November 1940 when the last demand of possession was refused, the present suit for simple partition is not -10- maintainable but the learned court below simply held that the plaintiffs are co-sharer which is not sustainable in law.
15. Learned counsel for the appellants further submitted that the bona fide litigation by limited owner will bind the reversioner. According to the learned counsel when Ram Sawari Kuer herself had no title/lost her title because of adverse possession and ouster, there is not question of inheriting the property of Ram Narayan Sah by the plaintiff as revisioner. Moreover, in the said suit filed by Ram Sawari the present plaintiff who was defendant No.12 could have prayed for being substituted in place of Ram Sawari and/or could have prayed for being transposed as appellant in First Appeal No. 60 of 1944 but he allowed to abate the said first appeal and, therefore, the adverse possession of the appellants i.e. the defendant Nos. 1 to 3 which had already started in 1933 (admitted in paragraph 12 of Ext. 5) did not break which was completed in the year 1945 and if the pendency of the earlier suit will stop the limitation then also on the death of Ram Sawari in 1951, 12 years will be completed in the year 1953. The learned court below has not at all considered these aspects of the matter and wrongly held that the plaintiffs are co-sharer. Since the limited owner i.e. Ram Sawari fought the earlier case up to the Hon'ble Supreme Court bona fidely and in absence of facts showing her latches or collusion the decision of that suit will be binding on the reversioner i.e. the present plaintiff and therefore, the suit is barred by res judicata and also adverse possession and ouster.
16. The learned counsel further submitted that in the earlier suit the trial court dismissed the plaintiffs' suit holding that Ram Sawari Kuer had no title and did not grant the decree for recovery of possession. The First Appeal No.60 of 1944 filed by Ram Sawari Kuer before the High Court was abated and, therefore, the judgment of the trial court became final. In such view of the matter also the finding on -11- issue No.7 in the earlier suit will operate as res judicate. According to the learned counsel the effect of abatement is to wipe out everything done in the appeal and put back the parties in the same position existing at the time of filing of the appeal. In other words, every judgment and order passed after filing the first appeal also be wiped out. Learned counsel further submitted that the appellants being the defendants in the court below are at liberty to take inconsistent plea of defence. They were claiming title in the earlier suit on two counts, firstly on the ground of survivorship and secondly i.e. alternatively that they have acquired title by adverse possession. Even if there was finding of the Hon'ble High Court regarding the separation between Ram Saran Sah and Ram Nararayan Sah, the plea of the present defendants-appellants regarding ouster and adverse possession should have been decided by the court below but the learned court below has only observed that plaintiff is co-sharer as such adverse possession is not applicable and there is no evidence of ouster although Ram Sawari herself admitted ouster and these defendants-appellants in their written statement Ext. 6 in paragraph 16 pleaded adverse possession and also there is pleading in paragraphs 18 to 22 in the present written statement and the DW 11 has supported these pleadings in his evidence.
17. The learned counsel further submitted that although the present original plaintiff was defendant No.12 in the earlier suit but in the present partition suit he did not mention a single word regarding the earlier litigation and, therefore, he is guilty of suppression of material facts. He approached the court with un-cleaned hand. According to the learned counsel he even falsely pleaded that on the death of Ram Narayan Sah, Ram Sawari Kuer came in possession of the properties which is contrary to the admission of Ram Sawari in earlier suit. He also falsely pleaded that he came in joint possession -12- with these defendants on the death of Ram Sawari but the learned court below has not at all applied his mind with regard to these facts. The learned counsel further submitted that since Ram Sawari admitted herself to be ousted by the defendants-appellants in the year 1933 itself in any case the limitation expired in 1957 and title to the property of the heirs of Ram Sawari extinguished and were stopped from recovering the possession of the property by virtue of law of limitation. In such circumstances, when Ram Sawari had no title or possession there is no question of inheritance by reversioner arises. On these submissions the learned counsel prayed that the impugned judgment and decree is liable to be set aside.
18. On the other, hand Mr. Kamal Nayan Chaubey, learned Senior counsel appearing on behalf of the respondents submitted that the learned court below has rightly decreed the plaintiffs' suit for partition. The learned counsel further submitted that the present plaintiff being reversioner filed the present suit in 1963 i.e. within 12 years of the death of Ram Sawari therefore, the learned court below has rightly held that suit is not barred by law of limitation. The learned counsel further submitted that the defendant-appellants might have prescribed adverse possession against Hindu Widow but they are not entitled to hold the property adversely against the next reversioner i.e. the present plaintiff and therefore, the learned court below has rightly decided this question also against the present appellant. The learned counsel further submitted that so far title of Ram Sawari is concerned the trial court in the earlier suit found that the Ram Saran and Ram Narayan were joint and therefore, the properties devolved on the defendants-appellants on survivorship. On appeal the High Court reversed this finding and held that they were separate and on appeal by the defendants present appellants, the Hon'ble Supreme Court did not disturb this finding about separation of the Ram Saran Sah and -13- Ram Narayan Sah which became final. The learned counsel further submitted that the claim of defendants-appellants regarding acquisition of title by adverse possession is not sustainable because unless they give up claim of acquisition of their title by survivorship the defendants-appellants starting point for adverse possession will not start because plea of title and adverse possession are mutually inconsistent and the latter does not began to operate until the former is renounced. The learned counsel further submitted that the appellants have failed to prove that their possession is nec vi, nec clam, nec precario i.e. peaceful, open and continuous and, therefore, the learned court below has rightly did not accept their case. In support of his contention on all above points, the learned counsel for the respondents relied upon three decisions. AIR 1953 SC 125 Kalipada Chakraborti and another Vs. Smt. Palani Bala Devi and others, AIR 1969 SC 204 Ram Kristo Mandal and another Vs. Dhankisto Mandal and (2007) 6 SCC 59 P.T. Munichikkanna Reddy and others Vs. Revamma and others. On these grounds the learned counsel submitted that the appeal is liable to be dismissed.
19. In view of the above rival contentions of the parties the following point arises for consideration in this appeal :
"Whether the plaintiffs have got unity of title and possession over the suit property and whether the plaintiffs' suit is maintainable in its present form and whether the impugned judgment and decree are sustainable in the eye of law."
20. Before going into the merits of the case, it is proper to mention here some facts which are not disputed. The daughter of Ram Narayan Sah namely Ram Sawari Kuer earlier filed Title Suit No. 24 of 1941 wherein she prayed that she is entitled to the possession of the disputed properties left by her father and also prayed that possession -14- of the said property be delivered to her. The plaint of the said title suit has been produced in this case which is Ext. 5. The suit was filed against the present defendants and the plaintiffs. The plaintiff was defendant No.12 in the said suit. In that case the present defendants- appellants appeared and filed contesting written statement claiming title on two counts i.e. on the ground of survivorship and alternatively setup plea of ouster and adverse possession also. After trial by terms of judgment and decree dated 22.12.1943 the said Title Suit No. 24 of 1941 was dismissed. The judgment has been marked in this case as Ext. C. The trial court framed three material issues.
"Issue no. 6- Was there any separation between Ram Narayan Sah planitiff's father and defendant No.1 as alleged ?
Issue no.7- Has the plaintiff alleged title to the properties in suit and is the plaintiff entitled to a decree for possession and Issue No.8- Is the plaintiff entitled to decree for mesne profit, if so for what amount ?"
21. While deciding issue No.6 the learned court below found that Ram Narayan Sah the father of plaintiff was joint with defendant No.1 and, therefore, the issue No.6 was answered in negative. While deciding issue No.7 and 8 the trial court held that in view of the finding on issue No.6, the issue Nos. 7 and 8 were also answered in negative and thus, dismissed the plaintiffs' suit.
22. The plaintiff Ram Sawari filed first appeal No. 60 of 1944 before the High Court, Patna. A division bench of this Court held that Ram Narayan Sah and Ram Saran Sah were separate from each other and after the death of Sumitra Devi the plaintiff is entitled to succeed to such properties as has been left by her father and plaintiff is entitled to a decree. Accordingly, issue Nos. 7 and 8 was also decided in favour of Ram Sawari Kuer. This judgment is Ext.4-A in the present case. -15-
23. Against the above judgment of this Court, the present defendants-appellants filed Civil Appeal No. 83 of 1950 before the Hon'ble Supreme Court and by terms of judgment dated 7.5.1951 the Hon'ble Supreme Court although confirmed the finding of the High Court regarding separation between Ram Narayan Sah with defendant No.1 of that suit set aside finding on issue Nos. 7 and 8 and remanded the appeal to the High Court. The judgment of the Hon'ble Supreme Court is Ext. 4 in this present suit. It may be mentioned here that the judgment of the Hon'ble Supreme Court is also reported in AIR (39) 1952 Supreme Court 72 Bhagwati Prasad Sah and others Vs. Dulhin Rameshwari Kuer and another. The Hon'ble Supreme Court held at paragraph 10 that issue No.7 was raised in the trial court and it involved consideration of question as to what properties the plaintiffs could claim to recover possession of even if she succeeds in establishing that her father died separate. The trial court did not think it necessary to decide this issue as it dismissed the plaintiffs' suit altogether. The High court, it is to be seen, has given a decree to the plaintiff in terms of her prayer in the plaint without considering this matter at all. Accordingly, the Hon'ble Supreme Court remanded the case to the High Court in order that the same may be disposed of in accordance with law after determination of issue Nos. 7 and 8.
24. In view of the above, issue Nos. 7 and 8 was to be decided by the High Court after remand by the Hon'ble Supreme Court according to the directions and observations. As stated above issue No.7 relates to title and recovery of possession by Ram Sawari Kuer. The Hon'ble Supreme Court observed that it would be open to the learned judges to remit the issue to the trial court for finding on the points to be arrived at on the evidence on record or on such further evidence as the parties might be allowed to adduce. -16-
25. After remand Ram Sawari Kuer the appellant in First Appeal No. 60 of 1944 died on 30.5.1951. It may be mentioned here that the present plaintiff was defendant No.12 and was also respondent in the first appeal. Because of non-substitution of the legal representatives the said first appeal was held abated and ultimately it was dismissed on 22.9.1953. This order of High Court has been marked as Ext. D in the present appeal. These above facts are not disputed by any of the parties. However, from perusal of the present plaint it appears that the plaintiff has filed this simple suit for partition claiming the share as stated above. He has not whispered any word regarding the earlier litigation as mentioned above in detail. At paragraph 6 of the plaint the plaintiff has pleaded that on the death of Ram Naryan Sah his widow Sumitra Devi came in possession of the property and on her death her daughter Ram Sawari Kuer came in possession of the suit property who died on 31.7.1951. At paragraph 7 the plaintiff has pleaded that on her death the plaintiff and the defendant Nos. 1 to 5 are coming in joint possession. It may be mentioned here that it is admitted case that Ram Narayan died in 1926, Sumitra Devi died in 1933.
26. P.W. 1 Gopi Rai has only stated about the cloth shops. He has only stated that cloth shop is joint business in his examination in chief. The evidence of PW 2 is also on the same line. PW 3 is son of original plaintiff No.1 who has been substituted after death of original plaintiff Ram Dayal Sah. He has deposed about the separation between the three sons of Shiv Narayan Sah. He has denied the reunion at paragraph 5 of his deposition. This witness has stated that on the death of Ram Narayan Sah in the year 1926 his widow Sumitra Devi came in possession of the property. She died in 1933 and on her death Ram Sawari became the heir. She filed the suit against the Ram Saran in which suit Ram Dayal Sah was also the defendant and the said suit was fought up to the Supreme Court and after the death of Ram -17- Sawari the plaintiffs and the defendants became the heirs of the property of Ram Narayan Sah.
27. PW 4 has also stated about separation between Ram Narayan Sah and Ram Saran Sah. PW 6, PW 10 are on the same point. PW 11 is original plaintiff No.2. He has only stated that after death of Ram Narayan Sah the property devolved on his widow and on his death the same devolved on his daughter and after her death it devolved on Ram Dayal, Bishwanath, Kamta, Bhagwati, Kameshwar and Deoki and they came in joint possession. These are the oral evidence adduced by the plaintiffs.
28. The learned counsel for the appellants submitted that the evidences adduced on behalf of the plaintiffs are directly contrary to the admission made by Ram Sawari in the earlier suit. From perusal of Ext. 5 the plaint of title suit No. 24 of 1941, it appears that at paragraph 14 of the plaint Ram Sawari clearly pleaded that defendant Nos. 1 to 3 declined to give possession of the property and it is impossible to obtain possession without suit. Hence that suit was filed. In the prayer portion also she prayed for recovery of possession of the properties of Ram Narayan Sah as mentioned in detail in Schedule 1 to 4 of that plaint. At paragraph 12 she has also pleaded that her mother died in 1933 and she came with her husband to take possession of the above properties from defendant Nos. 1 to 3. In view of the above pleading of Ram Sawari in plaint of the earlier suit it appears that she admitted her ouster from this suit property from the date of death of her mother i.e. in the year 1933. In that suit the present appellants filed written statement. At paragraph 16 of the said written statement the defendant Nos. 1 to 3 pleaded that on the death of Ram Narayan his widow disclaimed the property and never came in possession and the possession of these defendants became adverse to the reversioner -18- since after death of Ram Narayan Sah and therefore, these defendants have acquired title by adverse possession.
29. In view of the above facts of the earlier case in which the present plaintiff was also defendant No.12 it is clear that Ram Sawari never came in possession of the property. The present defendants- appellants were claiming title on the ground of devolution of property of Ram Narayan Sah by survivorship and alternatively also on the ground of acquisition of title by adverse possession. The plaintiff Ram Sawari admitted her ouster since 1933. It may be mentioned hear that the first son of Shiv Narayan Sah namely Imrit Sah was admitted be separate. The only controversy between the parties was regarding separation between Ram Saran Sah and Ram Narayan Sah. In such circumstances when the present defendants-appellants were claiming exclusive possession and acquisition of title by adverse possession since 1926 and moreover Ram Sawari Kuer herself admitted to have been ousted since 1933 it is not acceptable that the present plaintiff came in joint possession of the property of Ram Narayan on the death of Ram Sawari in 1951.
30. From perusal of the impugned judgment and decree it appears that the learned court below held that the plaintiffs are co- sharer and, therefore, possession of defendant Nos. 1 to 3 will be deemed to be the possession of plaintiff also. While giving this finding the learned court below held that there is no evidence of ouster and adverse possession is not applicable. It may be mentioned here that the learned court below has not considered the admission of Ram Sawari in her plaint of Title Suit No. 24 of 1941 and the defendants- appellants pleading in their written statement of that suit and also the evidence of DW 11 in the present suit. In the written statement at paragraph 18 and 22 in the present suit the defendants have also clearly pleaded about adverse possession. DW 11 in his evidence at -19- paragraph 7 and 8 has also stated about ouster and adverse possession therefore, these are documentary evidence and also oral evidence available on record as such the observation of the learned court below that the defendants have not adduced any evidence is apparently an error on record. It appears that the case of these defendants in the earlier suit and also in the present suit is that they acquired title by adverse possession also.
31. The learned counsel for the respondents submitted that plea on title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced. The learned counsel further submitted that claiming title by adverse possession pre-suppress that the title is with another person but in the present case, defendants case is that on the death of Ram Naryan Sah his property devolved on them according to the principles of survivorships. Therefore, they are claiming title on the basis of survivorship and not admitted the title of anybody else therefore, there is no question of acquisition of title by adverse possession. In reply to the above submission the learned counsel for the appellants submitted that the defendants can take alternative plea which are mutually inconsistent.
32. The learned counsel for the respondents further submitted that adverse possession in one sense is based on the theory of presumption that the owner has abandoned the property to the adverse possessor and now the right of property is considered to be not only a constitutional or statutory right but also human right. According to the learned counsel now the courts around the world are taking unkind view towards law of limitation overriding property rights. In support of his contention the learned counsel relied upon the decision (2007) 6 SCC 59 P.T. Munichikkanna Reddy and others Vs. Revamma and others. It appears that in that case the plaintiffs filed the suit claiming title on the ground of adverse possession over -20- entire 5 acres 25 guntas which he had purchased subsequent to the defendants. The defendants have purchased only 1 acre 21 guntas in the year 1933. The Hon'ble Supreme Court found that it is a case of mistaken possession.
33. There was no intention to dispossess the true owner and therefore, dismissed the plaintiffs' suit. The facts of that case are entirely differently. In the present case, as discussed above, it is the specific case of the defendants-appellants that they are in exclusive possession of the property of Ram Narayan after his death since 1926. Even if this case is disbelieved then also the daughter of Ram Narayan Sah namely Ram Sawari in the previous suit admitted to have been ousted since 1933.
34. In a decision reported in AIR 1969 Kerala 222 Velliyottummel Sooppi and others vs. Nadukandy Moossa and others, a division bench of Kerala High Court at paragraph 16 has held as follows :
"Ouster is certainly a positive matter: and the hostile animus necessary to constitute ouster must also be a positive matter. It is a matter involving action: it cannot be mere inaction. If the co-owner in possession did not give a share of the income to the co-owner out of possession merely because the latter did not ask for it, then, such animus may be only a negative animus. On the other hand, if the evidence shows that even if the co-owner out of possession demanded his share the co-owner in possession would not have given him a share, then, the animus is positive, in the sense that it is indicative of an animus to exclude. For entertaining a hostile animus to oust the real owner, the person in possession need not know who the real owner is. If he has the animus to hold the property as his against the whole world -21- including the real owner, whoever he be, known or unknown, the animus is sufficiently hostile to exclude the real owner also."
35. In the present case as stated above Ram Sawari Kuer in her plaint clearly admitted that in spite of demand of possession the defendant Nos. 1 to 3 did not gave her possession and, therefore, she filed the suit for recovery of possession. The trial court refused to give her possession by dismissing the suit. On remand the first appeal was dismissed as abated and, therefore, finding of the trial court on the issue No.7 and 8 becomes final, therefore, the daughter of Ram Narayan Sah namely Ram Sawari Kuer as limited owner of the property of the last male holder tried her best to recover possession from these defendants and she bona fidely prosecuted the earlier proceedings up to the Hon'ble Supreme Court. In such circumstances, ouster stands proved. Whether she could have been granted relief for recovery of possession was to be decided in the first appeal but unfortunately she died. The present plaintiff did not either pray for his substitution and/ or for being transposed as appellants in the said first appeal. The learned counsel for the appellants submitted that since Ram Sawari fought the case bona fidely the same will be binding on the reversioner i.e. the present plaintiff.
36. In a case reported in AIR 1918 Privy Council 87 Chaudhri Risal Singh and another Vs. Balwant Sing and others, it has been held that where the estate of a deceased Hindu has vested in a female heir a decree fairly and properly obtained against her in regard to the estate is in the absence of fraud or collusion binding on the reversioner heir. Although Section 11 does not strictly apply, the principle of res judicata is applicable so as to bind reversioners by decision in litigation, fairly or honestly conducted, given for or against Hindu females who represented estate.
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37. In AIR 1931 Privy Council 114 Mt. Munni Bibi and others vs. Tirloki Nath and others, the Privy Council has again reiterated the said principles of law following the case reported in AIR 1925 Privy Council 249. In the case of Kalipada Chakraborti and another vs. Sm. Palani Bala Devi and others AIR 1953 SC 125, a three judges bench of Hon'ble Supreme Court at paragraph 14 has taken the same view. The relevant portion of paragraph 14 is quoted hereinbelow :
".......................... But all doubts on this point were set at rest by the decision of the Privy Council itself in Jaggo v. Utsava, 56 Ind. App. 267 (P.C.) and the law can now be taken to be perfectly well settled that except where a decree has been obtained fairly and properly and without fraud and collusion against the Hindu female heir in respect to a property held by her as a limited owner, the cause of action for a suit to be instituted by a reversioner to recover such property either against an alienee from the female heir or a trespasser who held adversely to her accrues only on the death of the female heir. This principle, which has been recognized in the Law of Limitation in this country ever since 1871, seems to us to be quite in accordance with the acknowledged principles of Hindu Law. The right of reversionary heirs is in the nature of spes successionis, and as the reversioners do not trace their title through or from the widow, it would be manifestly unjust if they are to lose their rights simply because the widow has suffered the property to be destroyed by the adverse possession of a stranger. The contention raised by Mr. Ghose as regards the general principle to be applied in such cases cannot, therefore, be regarded as sound".
38. Again this decision of the Hon'ble court has been followed subsequently in AIR 1969 SC 204 Ram Kristo Mandal and another vs. Dhankisto Mandal.
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39. As stated above, in the present case no case has been made out by the plaintiffs that the decree has been obtained by fraud or collusion against the Hindu female heir i.e. Ram Sawari Kuer. Therefore, the decree obtained fairly and properly and without fraud and collusion against the Ram Sawari is binding on the plaintiffs- respondents.
40. The learned counsel for the respondents submitted that the finding of title was dependant on the finding of issue No.6 in the earlier suit which became final by the judgment of the Supreme Court. Now therefore, Ram Sawari inherited the property of her father. So far this submission is concerned, it may be mentioned here that the Hon'ble Supreme Court remanded the first appeal to the High Court for decision on issue No.7 and 8. I have quoted the issue No.7 and 8 above from which it will appear that issue No. 7 relates to title of Ram Sawari and entitlement of recovery of possession. On abatement of first appeal the finding on issue No.7 of the trial court becomes final. According to explanation (5) of Section 11 of the Code of Civil Procedure any relief claimed in the plaint which is not expressly granted by the decree shall for the purposes of this section be deemed to have been refused. In view of this provision regarding issue No. 7 it will be deemed to have been refused by the learned court below and, therefore, the prayer of Ram Sawari Kuer to recover possession of the property was refused by the trial court and this finding of the trial court became final. In my opinion therefore, this finding which has been obtained against Ram Sawari in the earlier suit fairly and properly and without fraud and collusion against her in respect of the property of Ram Narayan Sah, the finding shall operate as res judicata against the plaintiff who was also a party. Now he is estopped to say that Ram Sawari came in possession on the death of her mother and on her death the present plaintiff and others came in joint possession. -24- Moreover no cogent evidence has been produced on behalf of the plaintiffs to show that they came in joint possession. Consistently the case of the defendants-appellants is that they are in adverse possession of the property of Ram Narayan Sah.
41. In a case of Wuntakal Yalpi Chenabasavana Gowd Vs. Rao Bahadur Y. Mahabaleshwarappa and another AIR 1954 SC 337 the four judges bench of the Hon'ble Supreme court held that "Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the dispossessed co-sharer will not interrupt the running of adverse possession. He must actually and effectively break-up the exclusively possession of his co-sharer by re-entering upon the property or by resuming possession in such manner as it is possible to do. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession".
42. In AIR 1944 (31) Patna 77 Krishana Prasad Singh Vs. Adyanath Ghatak and another, a division bench of this court has held that a mere decree even a decree for possession which is not executed cannot possibly in itself interrupt adverse possession. The decree merely emphasis its adverse character.
43. In the present case even it the case of Ram Sawari about her ouster in the year 1933 is accepted then also the possession of defendant Nos. 1 to 3 became adverse since the death of Sumitra Devi which continued up to 1941 i.e. about 8 years. The litigation continued up to 1951 i.e. till death of Ram Sawari. In such circumstances when the adverse possession/ouster which was stopped in 1941 on the institution of the suit revived because the pendency of litigation will -25- interrupt the adverse possession of the defendants. Had the present plaintiff continued that suit i.e. First Appeal No. 60 of 1944 by being transposed as appellants the adverse possession would not have revived. Now therefore, the question arises is when Ram Sawari could not recover possession even after filing suit for recovery of possession, whether the present suit for simple partition is maintainable and whether the present plaintiff will be deemed to be co-sharer. In view of the above discussion, in my opinion these questions are to be answered against the plaintiffs.
44. So far the submission of learned counsel for the respondents that the appellants cannot be allowed to take inconsistent plea is concerned also I find no force.
45. In a decision reported in 1992 (1) PLJR 87 Chandi Prasad Sarkar Vs. Satya Prasad Roy and another, after discussing various decisions of Hon'ble Supreme Court as well as various other High Court this court held that plea of adverse possession may be held to be alternative to the plea of general title.
46. In AIR (38) 1951 SC 177 Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and others also it has been held that there is nothing in C.P.C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief therein in the alternative.
47. In AIR 2006 SC 2832 Baldev Singh Vs. Manohar Singh and another, the Hon'ble Supreme Court also held that the inconsistent pleas can be raised by the defendants in written statement although same may not be permissible in case of plaint. The same view has been taken by the Hon'ble Supreme Court in AIR 2009 SC 2544 Sushil Kumar Jain Vs. Manoj Kumar and another. -26-
48. In view of the settled principles of law the case of the defendants-appellants that they have also acquired title by adverse possession cannot be discarded. In this regard the admission of Ram Sawari in the earlier suit regarding her ouster will be binding on the reversioner. Moreover, in view of the decision of the Hon'ble Supreme Court in the case of Kalipada Chakraborti and Ram Kristo Mandal (Supra) the decision in the earlier suit will be binding on the present plaintiff being the reversioner. According to the said decisions if the limited owner allows the property to be ouster for the reasons of her act or omission the same shall not bind the reversioner but in the present case the appellants are not coming in adverse possession because of her inaction rather she fought the case up to the Hon'ble Supreme Court. When the appeal abated before High Court the respondent No. 12 who is present plaintiff could have prosecuted the appeal after being transposed as appellants because on the death of Ram Sawari a part of the property of the Ram Narayan Sah devolved on him and in view of the order 22 Rule 10 he could have obtained the leave. Order 22 Rule 10 sub rule (1) reads as follows :
"In other cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of Court, be continued by or against the person or upon whom such interest has come or devolved".
This rule is applicable in appeal also in view of the provision contained in Order 22 Rule 11.
49. The plaintiffs-respondents have not adduced any evidence about their joint possession except the statement in oral evidence that they are coming in joint possession suppressing the material facts regarding admission of dispossession of Ram Sawari and claiming ouster and adverse possession by the defendants-appellants. It may be mentioned here that the courts of law are meant for proper justice -27- between the parties. One who comes to the court must come with unclean hands. In the present case the plaintiff suppressed these material facts with a view to get undue advantage. According to Article 141 of the Limitation Act also reversioner can file suit to recover possession within 12 years. Whether he will be granted relief or not is separate matter. In the present case no suit for recovery of possession has been filed. The submission of the learned counsel for the respondent that a person who has been in adverse possession of property inherited by a female heir is not entitled to hold it adversely against next reversioner and therefore the suit is not barred by law of Limitation is correct but as has been held by the Hon'ble Supreme Court in the case of Kalipada AIR 1953 SC (Supra) and Ram Kristo Mandal AIR 1969 SC (Supra) it is applicable where there is no decree obtained fairly and properly and without fraud and collusion against the Hindu female heir. Moreover, both these decisions relied upon by the learned counsel for respondent also speaks about filing of suit for recovery of possession and not simple suit for partition. It is well known that for partition suit there is no limitation and the plaintiff has to prove unity of title and possession over the suit property. As discussed above in the present case no question of unity of title and possession arisen.
50. In view of my above discussion, I find that the plaintiffs have failed to prove their unity of title and possession over the suit property and the present suit for simple partition is not maintainable. The learned court below has not decided this question and wrongly held that the plaintiff is co-sharer and there is no plea of ouster. Therefore, the findings of learned court below on these points are hereby set aside.
51. In view of my above finding, the impugned judgment and decree are not sustainable in the eye of law.
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52. In the result, this first appeal is allowed and the impugned judgment and decree are set aside. The plaintiff respondents' suit for partition is dismissed with costs throughout. The advocate's fee is assessed at Rs. 10000/-.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 1st December, 2010 S.S./A.F.R.