Ramdeo Jha v. Narendra Narayan Mishra — 1964 DIGILAW 16 (PAT)

Judgment Ramratna Singh, J. 1. This appeal by defendants first party is directed against the judgment and decree of the Additional District Judge, Third Court, Bhagalpur, affirming those of Additional Subordinate Judge of Madhipura, in a suit for partition of 45 bighas of land. 2. Originally the property in suit belonged to one Jhaman Jha who left two sons namely, Lalit Jha and Ranglal Jha. Lalit had a son, named Genalal Jha who died leaving behind a widow, named Musst. Murti (defendant No. 4) -- defendant second party. Ranglal had two sons, namely Gudar Jha and Tofalal Jha, Gudar died leaving behind a widow, named Musammat Janmani who also died leaving behind three daughters, namely, Mosammat Parmesh wan (defendant No. 6) Jagdamba Devi (defendant No. 5) and Kaushalya Devi (defendant No. 7) Tofalal died leaving a son named Basdeo Jha, who also died leaving a son, Jagdish Jha. Jagdish Jha died leaving a widow, Gunjeshwari Devi (Sic.) (defendant No. 3) and two sons Ramdeo Jha and Phulkant Jha defendants (Nos. 1 and 2). These three defendants (Nos. 1 to 3) were defendants first party, and they are the appellants in this court. Defendants Nos. 5 and 5 constituted defendants third party. Defendant No. 7 alone constituted defendant fourth party. Defendants Nos. 8 to 12, who constituted defendants fifth party are purchasers from some of the defendants other than defendants first party, Genalal died sometime before 1910. Mosst Janmani died more than 37 years before the institution of the suit. The sole plaintiff, who is respondent No. 1 in this court, purchased some interest in the suit, property under a registered sale deed dated the 16th August 1956 executed by defendants 5 and 6, two of the daughters cf Gudar Jha. The case of the plaintiff is that there was separation amongst Gudar, Genalal and Tofalal and each of them used to cultivate specific plots of land for convenience, though there was no partition by metes and bounds. Though defendants Nos. 5 to 7 were in law to inherit the interest of Gudar Jha, defendant No. 7 gave up her claim to the property on account of the fact that she did not meet the expenses, incurred in the Sradh of Gudar or his widow, and, therefore, it is said, only defendants 5 and 6 inherited the interest of Gudar Jha, which was -/4/- annas in the family properties. This interest was purchased by the plaintiff and he claimed partition of the same in the suit, out of which the present appeal arises. 3. The claim, of the plaintiff was really contested by defendants first party only. They denied the alleged separation and asserted that there was no separation amongst any of the descendants of Jhaman Jha. On the other hand, they asserted that they got all the properties by the law of survivorship after the death of Genaial, Gudar and Tofalal. It was further asserted that even if defendants 5 and 6 had any interest in the property in suit, the same was extinguished by adverse possession for more than twelve years. The allegation that defendants 5 and 6 got th& interest of defendant No. 7 (Kaushalya Devi) was also denied. The sale deed in favour cf defendants fifth party were also challenged by these defendants. Some of the other defendants supported the case of the plaintiff, while some supported the case of defendants first, party. 4. The trial court found that: (i) The sale deed of the plaintiff is genuine, valid and for consideration, (ii) Mosammat Kaushalya, the daughter of Gudar Jha, did not claim any interest in the property of her father, as alleged by the plaintiff. (iii) Genalal Jha, Tofalal Jha and Gudar Jha were separate from one another. (iv) The defendants third party, that is, the vendors of the plaintiffs never came in khas possession over the property in question jointly with the defendants first-party. (v) Mosammat Janmani died 37 years ago, and, (vi) The case of ouster put forth by the defendants, first party has not been proved. 5. The lower appellate court substantially agreed with the finding of the trial court and dismissed the appeal preferred by the defendant first party. 6. Mr. (v) Mosammat Janmani died 37 years ago, and, (vi) The case of ouster put forth by the defendants, first party has not been proved. 5. The lower appellate court substantially agreed with the finding of the trial court and dismissed the appeal preferred by the defendant first party. 6. Mr. Lal Narayan Sinha who appeared for the appellants raised the following points in this Court: (i) The finding that Basdeos possession over the suit land for at least 37 years prior to the institution of the suit should be construed as constructive possession of all the co-sharers is illegal, because (a) it is contrary to the case alleged and attempted to be proved on behalf of the plaintiff, and (b) long exclusive possession coupled with other facts and circumstances admitted or proved in the case amount in law to adverse possession and ouster of the co-sharer, not constructive possession of the ca-sharer; (ii) Irrespective of the fact whether title of the plaintiff or their vendors was actually extinguished or not on account of adverse possession, if the plaintiff is not in possession, actual or constructive, on the date of the suit, then the suit for partition only without any relief for declaration of title, is not maintainable; and (iii) In any case, the plaintiff could not be granted, a decree in respect of the interest of defendant No. 7. 6a. The second point raised by Mr. Sinha can be disposed of easily. In Gur Narain Das V/s. Gur Tahal Das, AIR 1952 SC 225 , a similar argument was rejected by the Supreme Court. Their Lordships of the Supreme Court said: "The last point put forward on behalf of the appellants was that the plaintiff not being in possession of the properties which are the subject of the suit, he cannot maintain a suit for partition. This contention cannot prevail because the plaintiff is undoubtedly a co-sharer in the properties and unless exclusion and ouster are pleaded and proved, which is not the case, here, is entitled to partition." To the same effect is the observation of Mr. Justice R. K. Choudhary of this court in Tarkeshwar Prasarf V/s. Nanhkti Prasad Singh, AIR 1959 Fatna 523; Point No. (ii) urged by Mr. Sinha must, therefore, fail. 7. Point No. (i) related to the question of ouster snd limitation. Justice R. K. Choudhary of this court in Tarkeshwar Prasarf V/s. Nanhkti Prasad Singh, AIR 1959 Fatna 523; Point No. (ii) urged by Mr. Sinha must, therefore, fail. 7. Point No. (i) related to the question of ouster snd limitation. In Lakshmi Rccldy V/s. Lakshmi Reddy, AIR 1957 S C 314, their Lordships said : "Now, the ordinary classical requirement of adverse possession is that it should be nee vi nec clam nec pre-carlo. (See Secretary of State V/s. Debendra Lal, 61 Ind App 78 at p. 82: (AIR 1934 PC 23 at p. 25).) The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor (see Radhamoni Debi V/s. Collector of Khulna, 27 Ind App 135 at p. 140 (PC) ). But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in pessession 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. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. 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. (See Corea V/s. Appuhamy, 1912 AC 230). It is settled rule of law that as between co-heirs there must be evidence of open issertion of hostile title, coupled with exclusive possession ajid enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in Varada Pillai V/s. Jeevarathnammal, AIR 1919 PC 44 at p. 47 quotes, apparently with approval, a passage from Culley V/s. Deod Taylerson, (1840) 3 P and D 539 : 52 RR 566, which indicates that such a situation may well lead to an inference of ouster if other circumstances occur (see also Gobindrao V/s. Rajabai, AIR 1931 PC 48). It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession." In the case of Varada Pillai, AIR 1919 PC 44, the disputed property belonged to two brothers, G and P. G died in 1879, leaving a widow R and a daughter D.P. died in 1867 leaving a will by which he demised -/8/-afinas interest in the disputed property to his widow A who was found to have acquired an absolute interest. A died in 1912 and the plaintiffs claimed to succeed to the property as heirs of A. The defendant in the suit was the daughter of D, and the only substantial question raised on her behalf was one of the limitation. A question of title had also been raised on her behalf founded on a petition. Two widows had presented in 1895 to the Collector that they had made a gift of the entire property to D and asking the Collector to record D as the absolute owner of the property. D was accordingly ordered to be recorded as owner on the 8th May, 1896. Two widows had presented in 1895 to the Collector that they had made a gift of the entire property to D and asking the Collector to record D as the absolute owner of the property. D was accordingly ordered to be recorded as owner on the 8th May, 1896. The question of title, however, was raised because it was contended that the transaction of 1895 could not be relied upon by the defendant as there was no registered document evidencing the gift in question, but the defendant relied on the possession of D from the 8th May 1896, R however, died in 1901, and it was contended on behalf of the plaintiffs that on the death of R, the possession of D was that of a joint tenant, and, therefore, the rule of common law applied with force to the case before the Judicial Committee, Lord Viscount Cave pointed out the limits of the rule as follows: "Generally speaking one tenant in common cannot maintain an ejectment against another tenant in common because the possession of one tenant in common is the possession of the other and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant in common, has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster ....... and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety." His Lordship, on the facts of that case, found that the possession of the daughter D was adverse as against both owners, namely, A and R. The facts found were these. At or about the date of the attempted gift, D, who until then had lived with her husband in Madras came to live with her mother and her aunt A, in the neighbourhood of the property, and thenceforward spent the greater part of the year with them. At or about the date of the attempted gift, D, who until then had lived with her husband in Madras came to live with her mother and her aunt A, in the neighbourhood of the property, and thenceforward spent the greater part of the year with them. From the same date, all pattas were granted and muchilkas taken in the name of D alone; and the property was managed by agents appointed by her, who accounted to her for the rents. In these circum stances, it was held that the daughter D had proved ouster and acquired a title by adverse possession. I 8. In AIR 1931 PC 48, the case of ouster and adverse possession asserted by the defendants was accepted because there were certain revenue proceedings to indicate ouster in addition to the exclusion of the plaintiffs from the profits of the property for more than twelve years. In this connection it is significant that their Lordships of the Privy Council distinguished the case from the case of 1912 AC 230 in these words: "It was contended by Mr. Dube that, if not, they were held by the parties as tenants-in-common, and that the possession of one tenant-in-common was not adverse to the other, citing 1912 AC 230. In that case however what was decided by the Board was that the possession would not be adverse until ouster. The defendants predecessors had not only been in sole possession and perception of the profits of these villages for more than the statutory period, but as regards three of them, there were revenue proceedings between Gopal and plaintiff 1s guardian Sitabai in 1884, in which Gopal claimed mutation in his sole name and denied that plaintiff 1 had any interest in them. As regards the fourth village, there is no express evidence of his title having been denied before the settlement proceeding in 1912 which have been already referred to,- but having regard to the separation of the two branches of the family, and to the fact that plaintiff 1 never had possession or participation of profits in all these four villages ever since his fathers death in 1880 and that they were not included in the property handed over to him by Ganpat on his attaining majority, he must have known that his interest in them was not admitted, and their Lordships are of opinion that on these facts the appellate court was justified in holding that the possession of the defendant was adverse for more than statutory period." In the case of Corea, 1912 AC 230, Lord Macnaghten said that the possession of the defendant was in law the possession of his co-owners it was not possible for him to put an end to that possession by any secret intention in his mind and nothing short of ouster or something equivalent to ouster could bring.about that result. 9. It will be, therefore, noticed that in cases of Varada Pillai, AIR 1919 PC 44 and Govindrao, AIR 1931 PC 48, the plea of ouster was accepted not only on the ground of exclusion from the profits of the property, but on account of other circumstances in addition to that fact, indicating notorious exclusive possession in assertion of hostile title to the knowledge of the person ousted. 10. I shall now refer to the decisions cited at tne Bar. Mr. Lalnarain Sinha relied on the decisions of this Court in Ramlakhan Singh V/s. Chothu Sahi, AIR 1929 Pat 624 and Mahomed Yakub V/s. Abdul Manan, AIR 1943 Pat 48. In the case of Ramlakhan Singh, the plea of ouster was accepted on the ground that there were circumstances similar to those in the Privy Council case of Varada Pillai, AIR 1919 PC 44. The facts of the case of Ramlakhan Singh were these: An owner of 16 annas interest in a mauza gave in May, 1908 a Mokarrari of 8 annas interest in the mouza. The lessee continued to be in possession of his as well as the remaining 8 annas share. There was no participation by the owner in rents and profits. The facts of the case of Ramlakhan Singh were these: An owner of 16 annas interest in a mauza gave in May, 1908 a Mokarrari of 8 annas interest in the mouza. The lessee continued to be in possession of his as well as the remaining 8 annas share. There was no participation by the owner in rents and profits. In July, 1913, the owner gave the other 8 annas share in Mokarrari to a person who in turn transferred it to a third person. There was no participation by the owner or the second lessee or his transferee in rents and profits at any time since May 1908. The first lessee continued in possession of the entire 16 annas share for over 12 years since May, 1908. The last transferee brought a suit for partition of his share by metes and bounds. The owner had granted rent receipts in 1908 and 1909, in respect of the entire motiza; and the owner had thereafter conveyed his right to receive Mokarrari rent for the entire mouza. it was held that the lessee of the first 8 annss interest was holding the other 8 annas interest adversely to the owner and there was an ouster since the first lease, and that the ouster continued, making the possession of the first lessee adverse to the rightful owner of 8 annas Mokarrari, barring his right to partition. The reason given for this decision was that the doctrine that possession of one co-owner is possession of all co-owners cannot apply to a case between the landlord and the tenant. 11. In the case of Muhammad Yakub, AIR 1943 Pat 48, it was held on the facts of that case that the plea of ouster failed. But Mr. Sinha relied on placitum (f) which reads thus : "The appropriation by one co-owner of the whole of the income of the share of other co-owner is sufficient evi dence of an ouster of the other co-owner." This seems to be based on the following observation of Mr. But Mr. Sinha relied on placitum (f) which reads thus : "The appropriation by one co-owner of the whole of the income of the share of other co-owner is sufficient evi dence of an ouster of the other co-owner." This seems to be based on the following observation of Mr. Justice Shearer: "No doubt, if Jamal had himself been a co-owner or if Umat Fatma had not mortgaged the property and Jamal had been in possession of it as her mukhtar-am, then his conduct in appropriating the whole of Bibi Hasinas share of the income might perhaps have been regarded as sufficient evidence 6f an ouster." But the observation of his Lordship was hypothetical. Moreover the assumption made by his Lordship was justified by the fact that Jamal had executed several reham deeds, mortgating, one after another, most of the shops, and in all these deeds Jamal was purporting to act as the owner of the property, not as the Mukhtar-am of his wife, Umat Fatma, who was a co-owner. 12. Mr. Sinha also relied on two decisions of the Calcutta High Court to which f shall presently refer. Mr. B.C. De, who appeared for the contesting respondents, relied, on the other hand, on two decisions of this Court. In Lal Suraj Prasad v. Rsm Charitar Singh, AIR 1950 Pat 298 , their Lordships said: "It is well established that uninterrupted sole possession by one co-owner of undivided property does not by itself amount to ouster of his co-owner and is not sufficient to establish his adverse possession against them, and that his possession will be referred to his lawful title as a co-owner and will be taken to be the possession of his co-owners." In Mt. Bibi Zainab V/s. Mohammad Ayub, 17 Pat LT 366 : (AIR 1936 Pat 136), it was held that the onus of proving ouster is upon those who set up adverse title. The mere fact of non-receipt of rents is not conclusive evidence of ouster by the co-sharer who is in possession. Exclusion or ouster involves not merely, the act of the person custing but the state of mind of the person ousted; knowledge on the part of the latter, therefore, is essential. 13 In the case of Sabitri Dasi V/s. Nadir Chand, AIR 1926 Cal 881, which was cited by Mr. Exclusion or ouster involves not merely, the act of the person custing but the state of mind of the person ousted; knowledge on the part of the latter, therefore, is essential. 13 In the case of Sabitri Dasi V/s. Nadir Chand, AIR 1926 Cal 881, which was cited by Mr. Sinha, it was held that the ouster of the co-tenants in order to render the possession adverse need not be violent or intimidating expulsion or repulsion nor need notice of adverse holding be actually brought home to the other co-tenants by personal or formal communication; but it is sufficient, if contrary is not proved, that the circumstances show that such knowledge may reasonably be presumed. In that case, the facts were sufficient to indicate assertion of hostile title to the knowledge of the person alleged to have been ousted. It had been found that in 1279 the Roys granted a settlement of the whole of the Mokarrari interest to the defendant No. 1. By this settlement the title of the predecessors of defendants Nos. 6 to 10 was altogether ignored. Defendants Nos. 1 to 5 who claimed under that settlement, had been paying the whole of the mokarrari rent to the superior landlord since 1279. It was also found that defendants Nos. 1 to 5 had on several occasions mortgaged the whole of the Mouzah and had treated it as their sole property ignoring the rights of the predecessors of defendants Nos. 6 to 10. In these circumstances, it was held that there was adverse possession by defendants Nos. 1 to 5 with an assertion of hostile title. In Siteshwar Roy V/s. Tepua Barman, AIR 1926 Cal 589, which was also relied on by Mr. Sinha. there were important factors which led to the finding that there was an ouster. The facts found in that case were these. The plaintiffs story that they were in joint possession with the defendants co-sharers was not established. Some of the plaintiffs and the ancestors of the others had left the village where the suit land was situated more than 30 years before the suit and set up their own respective cultivation at those distant places. It was in these circumstances that their Lordships of the Calcutta High Court said that there was no room for the presumption that the defendants were in possession of the suit and on behalf of the plaintiffs. 14. It was in these circumstances that their Lordships of the Calcutta High Court said that there was no room for the presumption that the defendants were in possession of the suit and on behalf of the plaintiffs. 14. X X X 15. X X X 16. X X X On the basis of the last decision, Mr. Lalnarain Sinha submitted that in the instant case also the appellants plea of ouster should be accepted inasmuch as the plaintiff respondent had failed to prove his own actual possession or the possession of his vendors over any portion of the suit land for more than 37 years. But in the case of Siteshwar Roy, AIR 1926 Cal 589, there were other circumstances in addition to the fact that the plaintiffs had failed to prove that they were in actual possession of any portion of the suit land. (Then referring to the facts and circumstances of the instant case his Lordship held that they were quite different and justified the finding of the court below that the contesting defendants had failed to make out a case of ouster.) 17. Mr. B.C. De appearing on behalf of the respondents argued OH the basis of the decision in 17 Pat LT 366 : (AIR 1935 Pat 136), that the finding of the Court below on the question of adverse possession and ouster as a finding of fact and the appellants could not challenge this finding in second Appeal. At paga 370 of the above report Mr. Justice Wort referred to the observation of Lord Dentnan who said that in certain circumstances the Judge will direct the jury to take into consideration who they they will presume that there had been an ouster and said that the jury for the courts in India would be the court of fact. On the other hand, Mr. Lalnarain Sinna relied on a decision of the Privy Council in Lachmeshwar Singh V/s. Manowar Hossain, ILR 19 Cal 253 (PC), wherein it was held that a decision that the defendants possession had been adverse having been an inference from facts in the courts below the correctness of this, as a legal conclusion to be drawn or not was a question open to second appeal, and the High Court was not precluded from deciding to the contrary. That is why I have discussed the evidence" regarding ouster in second appeal. 18. That is why I have discussed the evidence" regarding ouster in second appeal. 18. The only point now left is whether the plaintiff is entitled to get a decree in respect of the share of defendant No. 7 as well. It may be recalled that there is no document in respect of the share of defendant No. 7, and the case of the plaintiff is that defendants 5 and 6 transferred the interest of defendant No. 7 as well because defendant No. 7 had relinquished her interest orally. Mr. B.C. De frankly conceded that in the eye of law, defendants 5 and 6 had no right to transfer the interest of defendant No. 7. Hence the contention of the appellants that the interest of defendant No. 7 cannot go to the plaintiff must be upheld; and to this extent this judgment and decree of the Court below must be modified. 19. In the result, the plaintiff respondent is entitled to a decree for partition in respect of only two-thirds of the one-fourth share which belonged to Gudar Jha and the judgment and decree of the court below are modified, accordingly. 20. The appeal is, therefore, allowed in part. In the circumstances of the case, the parties will bear their own costs of this court. The decrees of the court below regarding costs shall however, stand unmodified.