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CASE NO.: Appeal (civil)  12450 of 1996

PETITIONER: Md. Mohammad Ali (Dead) By LRs.                  

RESPONDENT: Sri Jagadish Kalita & Ors.               

DATE OF JUDGMENT: 07/10/2003

BENCH: Ashok Bhan & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

                This appeal is directed against a judgment and decree dated  20.5.1991 passed by Gauhati High Court dismissing the Second Appeal  preferred by the appellant herein.

BACKGROUND FACT         Md. Sadagar Sheikh was the original owner of the suit premises.   He transferred the same to Gayaram Kalita and Kashiram Kalita.  The  premises in suit, thus, owned and possessed by the said Gayaram Kalita  and Kashiram Kalita, who were brothers.  By reason of a registered deed  of partition dated 1.12.1938, the structures standing on the land in  suit being holding Nos.522 and 523 of the Nalbari Municipality were  divided into half and half, each measuring 5 = lechas. Prafulla Kalita,  son of Gayaram Kalita, allegedly, amalgamated both the said holdings and  got them registered in his name as holding No. 121 in the records of  Nalbari Municipality.  Holding No. 522 was sold and portion of holding  No. 523 was leased out in favour of the respondent No. 3 by Prafulla  Kalita.

       Upon the death of Md. Sadagar Sheikh, however, his sons got the  lands mutated  in their favour in mutation case No. 414/70-71 in terms  of an order of the Sub Divisional Officer of the Nalbari Municipality.   

By reason of a registered deed of sale dated 28.11.1972, the  defendants Nos. 7, 8 & 9 transferred their possessory  rights in holding  No. 523 including the house to the appellant for valuable consideration.   On or about 24.9.1977, the legal representatives of Md. Sadagar Sheikh,  being defendant Nos. 10, 11 & 12 transferred their right, title and  interest in old holding No. 523 to the appellant herein on receipt of  the consideration of a sum of Rs. 5000/-.  Upon purchase of the suit  premises in the manner aforementioned, the appellant herein called upon  the respondent No. 3 to pay rent to him which was denied.

LEGAL PROCEEDINGS ;

       Although the name of the plaintiff was initially mutated in  Nalbari Municipality, the same was cancelled by an order dated  26.9.1977.  The taxes deposited by the plaintiff were directed to be  refunded.  As the respondent No. 3 did not pay rent to the appellant, he  filed a money suit for recovery of arrears of rent being No. 83 of 1978  in the Court of Munsif which was dismissed.  An appeal preferred  thereagainst  by the appellant was also dismissed.  In view of the fact

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that the name of the appellant was not ultimately mutated in the records  of the Municipality as also in view of dismissal of the said money suit,  the suit was filed wherein the appellant prayed for the following  reliefs :

"(i)    For a decree for declaration of right,  title and interest of plaintiff over the suit  land and the house standing thereon.

(ii)    A decree may also be passed against the  defendant No. 4 for ejectment from the suit  house by removing its goods and articles  therefrom and also a decree for mesne profit of  Rs. 4350.00 against defendant No. 4.

(iii)   A decree for issuing precept to the  Nalbari Municipal Board for mutating the name of  the plaintiff on holding No. 121 (kha) the suit  house.

(iv)    The cost of the suit may be decreed  against the contesting defendants.

(v)     Any other relief to which the plaintiff is  entitled to may also be decreed."

       In the said suit, there were three sets of defendants.  The first  set being defendants No. 1, 2, 3, 5 & 6 were the legal heirs and  representatives of late Prafulla Kalita.  The second set being  defendants No. 7, 8 & 9 were the legal heirs and representatives of late  Kashi Ram Kalita and the third set being defendants No. 10, 11 & 12 were  the legal heirs and representatives of late Md. Sadagar Sheikh.  The  defendant No. 4 (Respondent no.3 herein) was a cooperative society which  was inducted as a tenant by Prafulla Kalita.  In the said suit the  contesting respondents herein inter alia raised a plea of adverse  possession alleging :

"That right of adverse possession had accrued  upon the predecessor-interest, and these  defendant, as these defendants and their  predecessor interest, had their peaceful and  uninterrupted possession for more than 40 years,  adversely to the interest of defendant No. 10,  11, 12 and their predecessor interest."

       They further set up a plea that the suit house was not actually  partitioned by metes and bounds by and between the Kalita brothers nor  separate physical possession thereof was effected and in fact Kashiram  Kalita and Gayaram Kalita orally gifted the said plot to Prafulla Kalita  and since then he had been in exclusive and peaceful possession thereof  as owner.

       The learned Trial Court in view of the rival contentions  aforesaid, inter alia, framed the following issues:

"3.     Whether the plaintiff has right, title and  interest over the suit land as well as the house  thereon?

4.      Whether there exists a relationship of

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landlord and tenant in between the plaintiff and  the defendant No. 4.  If so, whether the  plaintiff is entitled to the rent legally due by  the defendant No. 4?

5.      Whether the suit land together with the  house was originally gifted by late Gaya Ram and  Kashi Ram to late Prafulla Kalita as alleged in  the W.S.?"

       The Trial Court decreed the said suit whereagainst Jagdish Kalita,   Dipak Kalita and the Secretary of the Cooperative Society preferred  appeal in the Court of District Judge, Nalbari which was marked as T.A.  No. 69 of 1986.  The first appeallate Court upon consideration of the  materials on record held that the appellants therein could not prove the  factum of oral gift.  It was, however, observed:

"But it may so happen that some sort of mutual  arrangement took place as Gaya Ram and Kashi Ram  left Nalbari for Lumding in quest of their  fortune."

       The first Appellate Court furthermore held that the burden lay  heavily on the plaintiff to prove his title and possession within 12  years since before the date of filing of the suit.  The learned Court of  first appeal invoked the principle of ’caveat emptor’ and opined:

"First he purchased the suit holding.  Then he  inquired about the title and found that it was  recorded in the name of Prafulla.  The plaintiff  dared to plunge in the cross currents of legal  intricacies.  But he could not swim across and  then he sank.  The suit is hit by Article 65 of  the Limitation Act.  Hence all these three  issues are decided against the plaintiff."

       As regard Issue No. 4 it was held that the appellant was not  entitled to claim any rent from respondent No. 3 herein.

       On a second appeal filed by the appellant herein the High Court by  its judgment and decree dated 20th May, 1991 dismissed the same holding:

"The learned District Judge having found that  Prafulla did not share the rent with prof.  Defendants 7, 8 and 9 it cannot be said that  these defendants were still co-sharers.  Mr.  T.S. Deka, learned counsel for the respondents  has shown from the records that by Exhibits 12  and 13 Kashiram paid Municipal taxes only upto  the year 1945 and this is not disputed by Mr.  Sarma.  There was, therefore, an open ouster by  Prafulla since 1950.  The plaintiff brought the  suit in 1979.  The case relied on by Mr. Sarma  does not apply to the facts of the instant case.   The learned District Judge, therefore, was  perfectly correct in holding that plaintiff’s  suit was barred by Schedule 65 of the Limitation  Act."

                                               (Emphasis supplied)

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       The appellant is, thus, before us.          

       This Court by an order dated 16.8.1986 directed the appellant to  bring the plaint and written statement filed by the parties on records  so as to enable it to decide whether plea of adverse possession taken by  the respondent is sustainable.  Pursuant thereto and in furtherance  thereof the appellants have filed copies of plaint and the written  statement.

SUBMISSIONS :

       Mr. Mehta, learned counsel appearing on behalf of the appellant  would submit that the parties hereto admittedly been co-sharers, the  first appellate court as also the High Court have committed a manifest  error in dismissing the suit holding that the respondents perfected  their title by adverse possession, although the contesting respondents  did not raise any plea nor proved ouster of other co-sharers.

       Mr. Amlan Kumar Ghosh, learned counsel appearing on behalf of the  respondents, on the other hand, would support the judgment of the High  Court contending that having regard to the fact that the plaintiff lost  in Money suit No. 83 of 1978 in the Court of Munsif, the question of  title could not have been permitted to be reagitated.  The said issue,  the learned counsel would contend, was barred under the principles of  res judicata. The learned counsel would submit that having regard to the  fact that the respondent no.1 alone having all along been possessing the  suit premises by payment of rent to the municipal authorities, must be  held to have acquired title by adverse possession.

        LEGAL PRINCIPLES RELATING TO OUSTER AND ADVERSE POSSESSION :           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.   

       On the other hand,  if no partition by meets and bounds took  place, the  respondents herein were bound to 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.

Long and continuous possession by itself, it is trite, would not  constitute adverse possession.  Even non-participation in the rent and  profits of the land to a co-sharer does not amount to ouster so as to  give title by prescription. A co-sharer, as is well settled, becomes a  constructive trustee of other co-sharer and the right of the appellant  and/or his predecessors in interest would, thus, be deemed to be  protected by the trustee.  As noticed hereinbefore, the respondents in

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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 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.  

       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.

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

       However, in the event, the case of the defendant was that the  predecessors in interest of the plaintiff ceased to be his co-sharers  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.   

       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 predecessors in interest.   Mere non-payment 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.

       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.

       Possession of a property belonging to several co-sharers by one  co-sharer, it is trite, shall be deemed that he possesses the property  on behalf of the other co-sharers unless there has been a clear ouster  by denying the title of other co-sharers and mutation in the revenue  records in the name of one co-sharers would not amount to ouster unless  there is a clear declaration that the title of the other co-sharers was  denied and disputed.  No such finding has been arrived at by the High  Court.

       In the instant case, the dispute between the parties as regard

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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.

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.   

       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  :

       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 co-sharer does not amount to an ouster  so as to give title by adverse possession to the  other co-sharer in possession..."  

 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: "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 enters into possession having a  lawful title, cannot divest another of that  title by pretending that he had no title at  all."

       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:

"27...it will be seen that in order that the  possession of co-owner 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 since been followed in  Mohd. Zainulabudeen v. Sayed Ahmed Mohideen.

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28. ’Ouster’ does not mean actual driving out of  the co-sharer from the property. It will,  however, not be complete unless it is coupled  with all other ingredients required to  constitute adverse possession. Broadly speaking,  three elements are necessary for establishing  the plea of ouster in the case of co-owner. They  are (i) declaration of hostile animus, (ii) long  and uninterrupted possession of the person  pleading ouster, and (iii) exercise of right of  exclusive ownership openly and to the knowledge  of other co-owner. Thus, a co-owner, can under  law, claim title by adverse possession against  another co-owner who can, of course, file  appropriate suit including suit for joint  possession within time prescribed by law."  

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

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

       It has further been observed that :

"In our view, the correct  legal position  is that possession of a property belonging to  several co-sharers by one co-sharer shall be  deemed that he possesses the property on behalf  of the other co-sharers unless there has been a  clear ouster by denying the title of other co- sharers and mutation in the revenue records in  the name of one co-sharer would not amount to  ouster unless there is a clear declaration that  title of the other co-sharers was denied."  

QUESTIONS OVERLOOKED BY THE HIGH COURT :

       The proposition of law relating to ouster of a co-sharer vis-‘-vis  adverse possession had been overlooked  by the High Court.  There are  also certain other aspects of the matter which could not be overlooked  and probably would require closer examination by the High Court.  

The High Court while determining the question should have  formulated substantial questions of law in terms of Section 100 of the  Code of Civil Procedure, 1908.  In absence of formulation of such  substantial questions of law,  probably  the High Court committed the  errors as pointed out hereinbefore.  

Prima facie the questions of law which arise for consideration are:

(i)     Whether the registered deed of partition was acted upon  so  as  to cause disruption of  the joint family? (ii)    Whether the amalgamation of holding Nos. 522 and 523 as one  holding being holding no. 121 at the instance of Prafulla  Kalita was to the knowledge of the heirs and legal  representatives of Gayaram Kalita or the third set of the  defendants and, if the answer to the aforementioned question is

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in affirmative, whether Prafulla Kalita started possessing  the  entire house standing on the plot in question being holding No.  522 and 523 exclusively pursuant to or in furtherance of the  said order; or such possession was referable only to some  adjustment or permission of the heirs of Gayaram Kalita? (iii)   What was nature and extent of right transferred to the  appellant by the heirs of Kashiram Kalita?  (Such a question  arises as the appellants in their list of dates stated that  only possessory rights were transferred.)  

(iv)    Whether the plaintiff derived any right title and interest in  relation to the suit property by reason of deed of sale  executed by the heirs of Md. Sadagar Sheikh?   

(v)     If Md. Sadagar Sheikh had transferred his entire right, title  and interest in favour of two brothers by reason of the  aforementioned deed of sale, under what circumstances the names  of defendants No. 10, 11 & 12 were mutated in the records of  Nalbari Municipality in the year 1971.

       These questions were required to be considered upon by the Trial  Court as also the Court of first Appeal so as to arrive at a correct  decision.  However, we hasten to add that we have ourselves not gone  into the materials on record and thus have recorded our tentative  opinion on the basis of the judgment of the High Court and the Court of  Appeal.  It would, thus, be open to the High Court to consider the  matter on its own merit.

CONCLUSION :

       We are, therefore, of the opinion that the matter should be  considered afresh by the High Court which may proceed to decide the  matter on framing proper substantial questions of law arising in the  second appeal.  The judgment of the High Court is, therefore, set aside.   

       This appeal is allowed.  However, in the facts and circumstances  of this case, there shall be no order as to costs.