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1978 DIGILAW 802 (MP)

Bahadur Khan v. Jenabbi

1978-10-20

S.S.SHARMA

body1978
Short Note : 1. This is an appeal by the defendants against a judgment and decree dated 28-6-71 passed in Civil appeal No.22A of 1968 by first Additional District Judge Sagar. 2. Learned counsel for the appellant urged that Hashmatbi was in the continuous cultivating possession of the suit lands and had been paying land revenue thereon. According to him she possessed the lands to the exclusion of the plaintiffs and therefore the defendants had acquired a title by adverse possession. He even made a grievance about the summary manner in which the lower appellate Court had dealt with this question. Held: 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 out of them if in sole possession and enjoyment of the profits of the properties in question. 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 coheir 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 degoration of the other co-heir's title It is a 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. This does not necessarily mean that there must be an express demand by one and denial by the other. (See P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 . 3. Apart from the question that in a second appeal under section 100 of the Code of Civil Procedure the findings of fact will not be open to challenge, I find no convincing evidence on record which could, on the principles stated above make out a case of adverse possession in favour of Hushmatbi or even Bahadur Khan. The only evidence is that it was Hushmatbi who had been getting the lands cultivated and was paying the land revenue. The only evidence is that it was Hushmatbi who had been getting the lands cultivated and was paying the land revenue. On her death it was Bahadur Khan who was dealing with those lands. In view of the evidence that is available on record, the finding of the lower appellate Court arrived at in how-so-ever summary manner cannot be said to be wrong much less perverse. As against that the evidence and the material on record justify the finding. That being so the contention of the learned counsel for the appellant that the title to the land had been acquired by adverse possession, fails and is hereby rejected. AIR 1957 SC 314 , relied on. Appeal dismissed.