REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.829  OF 2002

Bonder & Anr.  ... Appellants

Versus

Hem Singh (dead) by LRs. & Ors. ... Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. This  appeal  is  directed  against  the  judgment  and  

decree passed by the High Court of Madhya Pradesh, Indore  

Bench at  Indore  in Civil  Second Appeal  No.  103 of  1982  

dated 24.8.2000.    

2. In order to appreciate the controversy involved in the  

case, it is necessary to recapitulate the basic facts of the  

case.

3. The appellants’ father Sukhram (since deceased) filed a  

suit bearing Civil Original Suit No. 230A of 1972 before the  

learned Fifth Civil Judge, Indore, Madhya Pradesh against  

Jagannath (since deceased).  It was pleaded, inter alia, that  

Sukhram  (plaintiff)  and  Jagannath  (defendant)  were  

brothers  and  sons  of  Narsingh,  who  died  leaving  behind  

22.39 acres of agricultural land and an ancestral house in  

village Kadwali Khurd.  The said land was jointly cultivated  

and the house was jointly occupied by both the brothers.  

Sukhram went to his maternal uncle’s house to look after  

his property. Sukhram before leaving the village went to his  

brother  Jagannath  and  requested  him  that  he  would  be  

looking  after  his  maternal  uncle’s  property  and  till  he  

returned to his village, the property may be looked after by  

him (Jagannath)  and he be given the usufruct  or income  

from his share of the property.

4. On return, Sukhram demanded the possession of the  

property of his share and also demanded the income derived  

from the said property from Jagannath, but he did not pay  

any attention to his request.  Ultimately, Sukhram had to  

issue a notice on 13.6.1971 to Jagannath.  The said notice  

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was served upon Jagannath on 19.6.1971 but even then he  

did not give possession of the land and the income from it to  

Sukhram during the period when he was away.  Ultimately,  

Sukhram  filed  a  civil  suit  and  claimed  possession  and  

future mesne profits at the rate of Rs.1,000/- per year and  

Rs.8,000/- for the past mesne profits.   

5. In  his  written  statement,  defendant  Jagannath  

surprisingly taken following pleas that:-  

(a) the parties were not brothers, but step brothers;  

(b) the house in dispute was in a dilapidated condition at  

the time of death of his father;  

(c) the property was not partible and the plaintiff Sukhram  

was not entitled to any share in it.  It was also incorporated  

in the written statement that father of the parties had taken  

loan  from different  persons  and had  created  a  charge  of  

Rs.5,000/- over the land and the house and that it was not  

possible to discharge the debt from the income of the said  

property and, therefore, immediately after the death of their  

father, the plaintiff Sukhram went to his in-law’s house and  

started living  there.   It  was further  stated  by defendant  

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Jagannath that he discharged the loan from the earnings of  

the property, income from the service and business of cattle  

and  while  doing  so  rebuilt  the  house  and  developed  the  

property.   He  further  stated  that  he  also  sunk  a  well  

spending a sum of Rs.4,000/-.    Sukhram came back to his  

village  and  demanded  his  share,  but  Jagannath  did  not  

accede  to  his  request  and  turned  him  out.  Defendant  

Jagannath pleaded absolute ouster of Sukhram and claimed  

that he had perfected his title by adverse possession.  In the  

alternative,  it  was  also  submitted  that  as  he  had  spent  

money for  construction  of  the  house,  development  of  the  

land  and  sinking  of  the  well,  in  case  a  decree  is  to  be  

granted in favour of the plaintiff,  half  of  the expenses be  

given to him.  He, however, prayed for dismissal of the suit.

6. The learned Civil Judge decreed the suit in favour of  

plaintiff Sukhram.   The plaintiff’s case is crystal clear that  

he had entrusted his share of immovable properties to his  

brother Jagannath to look after it and return the same to  

him on his return along with the usufruct or income derived  

from his share of the immovable properties.   The evidence  

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does not reveal that the plaintiff left the suit property with a  

view to permanently abandoning it.         

7. The first Appellate Court relied upon the decision in P.  

Lakshmi Reddy v. L Lakshmi Reddy AIR 1957 SC 314 at  

para 4, wherein this Court referred to the decision in Corea  

v.  Appuhamy  1912  AC  230  (C).   In  the  said  case  the  

principle of law has been clearly enunciated.  The relevant  

portion of the said judgment reads as under:

“It  is  well  settled  that  in  order  to  establish  adverse  possession  of  one  co-heir  as  against  another it is not enough to show that one of them  is in sole possession or enjoyment of the profits of  the properties.  Ouster of the non-possessing co- heir by the co-heir in possession who claims his  possession to  be  adverse,  should be  made out.  The possession of  one  co-heir  is  considered,  in  law, as possession of all the co-heirs.  The co-heir  in  possession  cannot  render  his  possession  adverse  to  the  other  co-heir  not  in  possession  merely by any secret hostile animus on his own  part in derogation of the other co-heirs title.   It is  a well settled rule of law that as between co-heirs  there  must  be  evidence  of  open  assertion  of  hostile  title,  coupled  with  exclusive  possession  and enjoyment by one of them to the knowledge  of the other so as to constitute ouster.”

8. This  principle  has  been  consistently  applied  by  the  

Indian courts.

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9. The first  Appellate  Court  also  held  that  even in  the  

revenue records the name of plaintiff Sukhram continues to  

show that  the  defendant  Jagannath never  considered the  

plaintiff  Sukhram as ousted and not continuing as a co-

heir.    

10. The first Appellate Court upheld the judgment of the  

trial  court  and observed that  the trial  court  was right  in  

holding that it is not proved that the defendant’s title over  

the suit land has been perfected by adverse possession and  

ouster  of  the plaintiff  to  his  knowledge for  more than 12  

years.   The first Appellate Court dismissed the appeal with  

costs and the preliminary decree passed by the trial court  

was confirmed.     

11. The plaintiff respondent, aggrieved by the judgment of  

the  first  Appellate  Court  (Eighth  Addl.  District  Judge,  

Indore) preferred second appeal before the High Court.  The  

High Court by the impugned order set aside the concurrent  

findings of facts of the courts below and allowed the appeal.  

The High Court, while setting aside the concurrent findings  

of  facts  of  courts  below,  gave  very  unusual,  strange  and  

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totally unsustainable reasonings.   The High Court observed  

that the plaintiff,  according to his own pleadings, left  the  

village somewhere between 1935-40 and received his share  

in the property up to the year 1950 and thereafter all his  

rights were denied and defendant Jagannath asserted his  

absolute right in the property.   According to the impugned  

judgment of the High Court, the two courts had not taken  

into  consideration  the  pleadings  of  the  parties  and  the  

admissions  made  by  the  plaintiff  which  have  important  

bearing on the facts of the case and the appreciation of the  

evidence.

12. The High Court held that the findings recorded by the  

two courts are not only wrong and illegal but also perverse.  

The High Court  in the impugned judgment also observed  

that the plaintiff, though, has proved that he was the joint  

owner  of  the  property,  but  has  failed  to  prove  that  he  

continued to be the joint owner of the property and had no  

knowledge  about  the  hostility  asserted  by  defendant  

Jagannath, and his exclusion. It was further held that the  

defendant was successful  in  proving  the  exclusion of  the  

plaintiff and the said exclusion was to the knowledge of the  

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plaintiff.    According  to  the  High  Court,  the  suit  of  the  

plaintiff was patently barred by limitation.    

13. The plaintiff Sukhram, aggrieved by the said judgment  

of the High Court, has preferred this appeal under Article  

136 of the Constitution.

14. The High Court has not examined the pleadings of the  

parties and evidence on record in proper perspective.   The  

High Court ought to have appreciated that the plaintiff while  

leaving  the  village  asked  his  brother  (defendant)  that  he  

should look after the land which was in the share of the  

plaintiff  also and keep the account of usufruct or income  

from the property of the plaintiff. The plaintiff had always  

remained  a  co-owner  of  the  property  in  question.   While  

leaving  the  village  he  asked his  brother  to  look after  the  

property  in  his  absence.   From  that  it  can  never  be  

construed  that  the  plaintiff  at  any  point  of  time  did  not  

remain co-owner of the property or surrendered his interest  

in the property.  The defendant is guilty of taking entirely  

dishonest defences before the trial court.  The court should  

always effectively discard such a dishonest conduct.   

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      15. In our considered opinion, the High Court erroneously  

set  aside the concurrent  findings of  facts of  the  two well  

reasoned judgments of the courts below.  

16. The impugned judgment of the High Court is wholly  

unsustainable,  illegal,  perverse  and against  the  norms of  

any civilized society.   The judgment of the High Court has  

demolished  the  entire  fiber  of  joint  family  system of  our  

country  and  has  put  premium  on  the  dishonesty  of  the  

defendant and the  same deserves to be set  aside.    It  is  

unfortunate  if  one  brother  cannot  trust  his  own  brother  

even  to  this  extent  then  how  can  peace  and  tranquility  

prevail  in the society?  The saddest part is that the High  

Court while setting aside the concurrent findings of the two  

courts has put judicial seal of approval on such a dishonest  

conduct  of  the  defendant  (Jagannath).    The  impugned  

judgment  of  the  High  Court  cannot  be  sustained  and  is  

accordingly set aside.  The defendant did not have any case  

either in law or equity.

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17. This appeal is allowed with costs which is quantified at  

Rs.50,000/- to be paid by the respondent to the appellant  

herein within two months.   

....……….……………………..J.                                                     (Dalveer Bhandari)

.…..…….……………………..J. (Dr. Mukundakam Sharma)

New Delhi; May 15, 2009  

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