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CASE NO.: Appeal (civil)  5846 of 2000

PETITIONER: Des Raj & Ors

RESPONDENT: Bhagat Ram (Dead) By LRs. & Ors

DATE OF JUDGMENT: 20/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. Sinha, J.         The defendants are the appellants.  The parties were co-owners.  The  suit properties are situate in two villages; 232 bighas and 10 biswas in  village Samleu and 76 bighas in village Punjoh.

       It is not in dispute that whereas the plaintiffs - respondents had all  along been in possession of the property situate in village Samleu, the  appellants are in possession of village Punjoh.  Allegedly, in the revenue  settlement record of rights prepared in the year 1953, joint ownership of  lands situate in village Samleu was recorded.  However, it was observed  therein that if the predecessors of the appellants "do not give share" to the  plaintiff \026 respondent in the land in village Punjoh,  the plaintiff-respondent  may ask for the review of the order.

       On the plea that the land situate in village Punjoh was jointly  recorded, it was urged that the entry in the said record of rights attained  finality.

       Indisputably, however, the appellants had filed two suits; one in the  year 1968 and another in 1978.  In the aforementioned suits, a prayer for  partition and separate possession was claimed by the appellants herein in  respect of 2/3rd share in the entire land situate in village Samleu.     Admittedly, the 1968 suit was dismissed in 1977 and the 1978 suit was  dismissed in 1984.

       Plaintiff \026 respondent continued to possess the properties situate at  village Samleu.

       Plaintiff \026 respondent filed a suit in the year 1986 for declaration of  his title as also permanent injunction.                  In paragraph 8 of the plaint, the plea of adverse possession was raised,  which reads as under :                            "The    plaintiff has been in possession as owner in  adverse possession on the land of the defendant No. 1 to  12, area 155 Bigha \026 0 Biswa of the land for 12 years.   Hence it is appropriate to declare the possession and  ownership by way of adverse possession of the plaintiff  on the land in disputed land and the defendant Nos. 1 to  22 are intending to alienate the land on the basis of mere  entry in the papers.  Therefore, it is proper to restrain the  defendant Nos. 1 to 22 from selling, leasing out and  transferring the land by any means."                                      The Trial Court in view of the pleadings of the parties framed the  following issues:

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"1. Whether the plaintiff has become owner of the suit  property by adverse possession as alleged?

2. Whether the defendants are in joint possession of the  suit property as co-sharers? 3. Relief."

       By reason of a judgment and decree dated 9.10.1987, the learned Trial  Judge opined that the plaintiff had been in exclusive continuous peaceful  possession of the suit land to the exclusion of the other co-owners prior to  settlement which took place in the year 1953.

       Analysing the evidences brought on records, the learned Trial Judge  opined:

"As per statements PW-1 Bhagat Ram plaintiff and  Hishiara and others during settlement in the year 1953, as  per copies of Tankih No. 4 Ex. P-4, No. 10 Ex. P-16 and  No. 11 Ex. P-15, it is evident that present plaintiff Bhagat  Ram had asserted his hostile possession and ousters of  other co-owners even during settlement in the year 1953  and as per the copy of plaint Ex. P-1 in civil suit No.  42/74 instituted by Hushiara and others, Bhagat Ram had  denied the title of other co-owners on which suit for joint  possession against present plaintiff Bhagat Ram was filed  on 2-3-1968 for joint possession.  Bhagat Ram has  denied the title of other co-owners during May, 1967  which led other co-owner to file suits for joint possession  against present plaintiff Bhagat Ram which were  admittedly dismissed as abatted on 24-12-1977 Ex. P-11  and 11-01-1984 Ex. P-12.  It is thus evident that Bhagat  Ram had been making open assertion of his hostile title  coupled with exclusive possession and enjoyment to the  knowledge of other co-owners which is essential for  adverse possession against co-owners was held in  Krishan and others, Appellants vs. Krishanoo and others  Respondents AIR 1985 H.P. 103\005"

       It had been categorically held that assertion of exclusive possession by  the plaintiff was clear and explicit and the defendants \026 appellants had actual  knowledge thereof.

       The First Appellate Court dismissed the appeal preferred by the  appellants herein affirming the said view holding that ’no arrangement was  arrived at between the co-sharers’ to the effect that the respondents would be  cultivating the land on behalf of other co-sharers stating:

"\005Be it noticed that no such arrangement was shown to  have been ever agreed by the parties nor the contesting  defendants have pleaded any such arrangement in the  written statement.  The arrangement contemplated in  Tankih [Ex. P-2] with regard to denial of share of Bhagat  Ram in the joint land of village Panjoh, was a reason for  Bhagat Ram to claim an exclusive title in the disputed  land situate at village Samleu and the offer itself was not  a part of any mutual arrangement.  Since the contesting  defendants did not allow Bhagat Ram to have a share in  the joint land of Panjoh, Bhagat Ram staked his claim of  exclusive ownership in the disputed land situated at  Samleu Pargna Chuhan and did not allow the contesting  defendants to have any share in the disputed land of  Samleu for that reason.  This was a clear and open denial  of the title of the contesting defendants in the disputed

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land, may be for the reason that the contesting defendants  had not allowed the plaintiff to have a share in the joint  land of village Panjoh.  So, it is not correct that the  plaintiff was in possession of the disputed land under  some mutual arrangement."

       It was further held that repudiation of title of the defendant by the  plaintiff was open and hostile.   

       In the Second Appeal preferred by the appellants, the High Court  while determining the same, opined:

"In the present case, the plaintiff has specifically pleaded  that he is in continuous possession of the land in dispute  in open and unequivocal denial of title of defendants No.  1 to 22-A, since prior to 1952-53.  As stated above, the  longstanding revenue entries since 1952-53 record the  plaintiff to be in exclusive possession of the land in  dispute.

Ex. P.1 is the copy of the plaint of the suit instituted by  some of the defendants in the year 1968, against the  present plaintiff.  This plaint is dated 29.2.1968.  By  virtue of this suit, the plaintiffs therein, who are the  defendants in the present case, had prayed for joint  possession of the land, which is the subject matter of this  suit.  In para 3 of this plaint, it has been averred that the  plaintiff in the present case, was in exclusive possession  of the land in dispute and that he was asserting and  claiming himself to be the sole owner thereof."

       Referring to the two suits filed by the appellants herein, the High  Court held :

"Therefore, on the basis of the material coming on the  record, especially in the form of Ex. P-1, Ex. DW 2/A,  Ex. P-11 and Ex. P-12, it is established that the plaintiff  is coming in adverse possession of the land in dispute in  complete denial of the title of the defendants No. 1 to 22- A and to their knowledge at least since 1968.  The suit  out of which the present appeal has arisen was filed on  20.8.1986, that is, after about 18 years from the date of  denial of title of defendants 1 to 22-A by the plaintiff.   The adverse possession as on the date of suit having  continued for more than the statutory period of twelve  years has, thus, ripened into ownership."

       Mr. R.K. Dash, learned senior counsel appearing on behalf of the  appellants, would submit that the parties hereto being co-sharers, it was  obligatory on the part of the plaintiff to plead and prove ouster.  According  to the learned counsel, the learned Trial Judge as also the Appellate Courts  committed a manifest error in arriving at the conclusion that the plaintiff  perfected his title by adverse possession.

       Mr. E.C. Agrawala, learned counsel appearing on behalf of the  respondents, on the other hand, supported the impugned judgments.

       We have noticed hereinbefore the factual aspects of the matter which  are neither denied nor disputed.  Admittedly, the plaintiff \026 respondent had  remained in possession for a long time i.e. since 1953.

       It may be true that in his plaint, the plaintiff did not specifically plead  ouster but muffosil pleadings, as is well known, must be construed liberally.   Pleadings must be construed as a whole.  

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       In Devasahayam (D) by LRs. v. P. Savithramma and Ors. [(2005) 7  SCC 653], this Court opined:

"The pleadings as are well-known must be construed  reasonably. The contention of the parties in their  pleadings must be culled out from reading the same as a  whole. Different considerations on construction of  pleadings may arise between pleadings in the mofussil  court and pleadings in the Original Side of the High  Court."

       Only because the parties did not use the terminology which they  should have, ipso facto, would not mean that the ingredients for satisfying  the requirements of statute are absent.  There cannot be any doubt  whatsoever that having regard to the changes brought about by Articles 64  and 65 of the Limitation Act, 1963 vis-‘-vis Articles 142 and 144 of the  Limitation Act, 1908, the onus to prove adverse possession would be on the  person who raises such a plea.  It is also furthermore not in dispute that the  possession of a co-sharer is presumed to be possession of the other co- sharers  unless contrary is proved.

       A plea of adverse possession or a plea of ouster would indisputably be  governed by Articles 64 and 65 of the Limitation Act.

       In a case of this nature, where long and continuous possession of the  plaintiff-respondent stands admitted, the only question which arose for  consideration by the courts below was as to whether the plaintiff had been in  possession of the properties in hostile declaration of his title vis-‘-vis his co- owners and they were in know thereof.

       Mere assertion of title by itself may not be sufficient unless the  plaintiff proves animus possidendi.  But the intention on the part of the  plaintiff to possess the properties in suit exclusively and not for and on  behalf of other co-owners also is evident from the fact that the defendants \026  appellants themselves had earlier filed two suits.  Such suits were filed for  partition.  In those suits  the defendants \026 appellants claimed themselves to  be co-owners of the plaintiff.  A bare perusal of the judgments of the courts  below clearly demonstrates that the plaintiff had even therein asserted  hostile title claiming ownership in himself.  The claim of hostile title by the  plaintiff over the suit land, therefore, was, thus, known to the appellants.   They allowed the first suit to be dismissed in the year 1977.  Another suit  was filed in the year 1978 which again was dismissed in the year 1984.  It  may be true, as has been contended on behalf of the appellants before the  courts below, that a co-owner can bring about successive suits for partition  as the cause of action therefor would be continuous one.  But, it is equally  well-settled that pendency of a suit does not stop running of ’limitation’.   The very fact that the defendants despite the purported entry made in the  revenue settlement record of rights in the year 1953 allowed the plaintiff to  possess the same exclusively and had not succeeded in their attempt to  possess the properties in Village Samleu and/or otherwise enjoy the usufruct  thereof,  clearly go to show that even prior to institution of the said suit the  plaintiff-respondent had been in hostile possession thereof.

       Express denial of title was made by the plaintiff-respondent in the said  suit in his written statements.  The courts, therefore, in the suits filed by the  defendants \026 appellants, were required to determine the issue as to whether  the plaintiff- respondent had successfully ousted the defendants \026 appellants  so as to claim title himself by ouster of his co-owners.

       In any event the plaintiff made his hostile declaration claiming title  for the property at least in his written statement in the suit filed in the year  1968.  Thus, at least from 1968 onwards, the plaintiff continued to  exclusively possess the suit land with knowledge of the defendants \026  appellants.

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       The parties went to trial fully knowing their respective cases.  The fact  that they had been co-owners was not an issue.  The parties proceeded to  adduce evidences in support of their respective cases. Defendants \026  Appellants, keeping in view of the fact that they have unsuccessfully been  filing suit for partition, were also not prejudiced by reason of purported  wrong framing of issue.  They knew that their plea for joint possession had  been denied.  They were, therefore, not misled.  They were not prevented  from adducing evidence in support of their plea.

       Article 65 of the Limitation Act, 1963, therefore, would in a case of  this nature have its role to play, if not from 1953, but at least from 1968.  If  that be so, the finding of the High Court that the respondent perfected his  title by adverse possession and ouster cannot be said to be vitiated in law.

       Mr. Das has relied upon a decision of this Court in Saroop Singh v.  Banto and Others [(2005) 8 SCC 330], in which one of us was a member.   There is no dispute in regard to the proposition of law laid down therein that  it was for the plaintiff to prove acquisition of title by adverse possession.                  We are also not oblivious of a recent decision of this Court in  Govindammal v. R. Perumal Chettiar & Ors. [2006 (11) SCALE 452]  wherein it was held:

"\005In order to oust by way of adverse possession, one  has to lead definite evidence to show that to the hostile  interest of the party that a person is holding possession  and how that can be proved will depend on facts of each  case\005"

       Yet again in T. Anjanappa and Others v. Somalingappa and Another  [(2006) 7 SCC 570], it was held:

"12. 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 rights but denies  them. The principle of law is firmly established that 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. For deciding  whether the alleged acts of a person constituted adverse  possession, the animus of the person doing those acts is  the most crucial factor. Adverse possession is  commenced 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 the owner’s right  excluded him from the enjoyment of his property."

       In this case, however, a finding of fact has been arrived at by all the  three courts.  They have analysed the evidences on record.  They have taken  into consideration the correct legal position operating in the field as also  conduct of the parties.  They, in our opinion, applied the correct principles of  law as regards ’burden of proof’.

       We, having regard to the peculiar fact obtaining in the case, are of the  opinion that the plaintiff- respondent had established that he acquired title by  ousting the defendants \026 appellants by declaring hostile title in himself  which was to the knowledge of his co-sharers.

       We, therefore, find no infirmity in the impugned judgment.  The  appeal is allowed.   In the facts and circumstances of the case, there shall,  however, be no order as to costs.