M. F. SALDANHA, J. ( 1 ) A pure point of law or a situation wherein there is a conflict between two concepts of law arises for determination in this appeal. The dispute in the partition suit is in relation to a property that originally belonged to one Sakramma who had 3 sons, Advappa, Nanjappa and Basappa. The suit is directed against Basappa through his legal heirs and the prayer is for partition of the property on the basis of 1/3rd each by the legal heirs of Advappa and plaintiff No. 5 Nanjappa. I need to mention here, that Nanjappa had since died leaving behind no legal heirs and it is effectively therefore a straight contest between the legal heirs of the two brothers. The property of deceased Sakramma must be partitioned in 3 ways, one share going to each of the 3 branches represented by each of their sons. Sakramma died intestate and therefore, by virtue of the law of succession each of the sons would be entitled to a 1/3rd share and they would have to be treated as co-owners in respect thereof. The contention was that the defendant was in possession and had not agreed to give the shares to the other two brothers and therefore, a decree was sought from the Court. ( 2 ) THE defence pleaded in this suit was that the defendants have been maintaining the property all through by way of paying taxes and amounts have been spent for securing water connection etc. The Dft. also refers a mortgage which has been redeemed by him. The basic plank of the defence is that Basappa has been in possession of the property for more than 12 years and therefore has a perfect and (sic) absolute title by way of adverse possession. It is on this plea that this suit had been resisted. ( 3 ) THE learned trial Judge on consideration of the material before him and the position in law has upheld the plea of adverse possession that was canvassed. According to his finding since the record demonstrated that Basappa has been in possession right from the year 1949 onwards and since this possession has been to the knowledge of his brothers who had not resisted it, that he was entitled to contend that he has perfected his title through efflux of time. According to his finding since the record demonstrated that Basappa has been in possession right from the year 1949 onwards and since this possession has been to the knowledge of his brothers who had not resisted it, that he was entitled to contend that he has perfected his title through efflux of time. In the opinion of the learned trial Judge since 12 years had elapsed and since the title in question was hostile to the other two brothers who had not done anything to agitate their rights during this long period, the plea of adverse possession was liable to be upheld. Under this circumstance the suit came to be decreed and it is against this decree that the appeal has been directed. ( 4 ) THE principal contention raised by the appellant's learned Advocate is that the decision of the trial Court is palpably erroneous in law. He has taken me through the issues framed, the evidence on record, the discussion and reasoning of the learned Judge as reflected in the judgment under appeal and he has submitted that the plea of adverse possession is wholly untenable on the facts of this case. ( 5 ) ADVERTING to the legal aspect of the case the learned Advocate has contended that the plea of adverse possession has been wrongly pleaded and faultily accepted. He points out to me that the status of the parties has not been taken into consideration by the learned trial Judge who has completely overlooked the fact that the 3 contesting parties were brothers. He submits that this makes a world of difference because they were no strangers setting up pleas in respect of properties concerning disputed claims, but in the present instance the claim is for share in the property inherited from their mother. He has relied on a recent decision of the Supreme Court reported in AIR 1995 SC 895 in the case of Annasaheb Bapusaheb Patil v. Balwant Babusaheb Patil. The Supreme Court had occasion to consider the position in Hindu Law and to deal with facts that bore some similarity to the present case. The Apex Court had occasion in that case to repel the plea of adverse possession between co-owners by clarifying the case of a coparcener mere denial of title of the other by one co-parcener alone is not enough to give himself the benefit of a statutory limitation. The Apex Court had occasion in that case to repel the plea of adverse possession between co-owners by clarifying the case of a coparcener mere denial of title of the other by one co-parcener alone is not enough to give himself the benefit of a statutory limitation. It further proceeded to hold that where the possession could be linked to a lawful title it will not be considered to be adverse. Based on this decision of Supreme Court the learned Counsel for the appellants submitted that the plea of adverse possession will have to be discarded and once this is done the parties representing the legal representatives of plaintiff No. 1 and defendant No. 1 would be entitled to one-half shares since Nanjappa died without leaving behind any L. Rs. ( 6 ) THIS appeal has been listed for hearing. The appellant's earlier advocate Mr. Nagarajappa has retired from the proceedings and the appellants have made further arrangements. Their learned counsel has appeared in the matter and he has argued the same. This Court when it granted time on 16-6-95 passed a speaking order indicating that the appeal would be listed for hearing on 10-7-95 and no further adjournment would be granted under any circumstances. The appeal is heard and decided accordingly. ( 7 ) AS regards the application of the doctrine of adverse possession it requires to be first clarified that it is essentially a doctrine that operates by default. When the property is sought to be claimed by a third party, normally that party would not have any right to that property, but it is only on the ground that the party has set up a title to the knowledge of the true owner and continued in uninterrupted possession or in hostile possession of that property for over 12 years, the relief is claimed. The law takes into account the fact that the true owner has by virtue of his in-action during the entire period of the 12 years time nothing to reclaim the property and has allowed a right to accrue to the party in possession. It is these unusual factors that confer the benefit of the right in adverse possession. It presupposes the fact that there is no other right available to the party claiming adverse possession. It is these unusual factors that confer the benefit of the right in adverse possession. It presupposes the fact that there is no other right available to the party claiming adverse possession. As indicated earlier, it is a position that emerges virtually by default almost to the extent of recognising that if a party is not interested in the property and has lost all desire of exercising his right of ownership over it or reclaiming it, that the party in adverse possession should not be precluded from setting up and acquiring a title to the same. What needs to be taken special note of in such instances is that it is merely due to non-action of the owner that the plea of adverse possession can be set up only if and provided that there are no better rights in the picture. The appellant's learned Advocate is correct when he points out that the learned trial Judge has overlooked one cardinal aspect of the case namely, that the two contesting parties were brothers both of whom had the right of succession to the property which belonged to their late mother. If one of them was in possession of the property to the exclusion of the other ones regardless of for what length of time, the rights that have devolved on the opposite party namely plaintiff No. 1 by virtue of the law of succession cannot be extinguished by setting up the plea of adverse possession. The plea of adverse possession cannot override or conflict with or nullify the basic rights that have occurred in plaintiff No. 1 by virtue of his status. To me, the fact that he is the son of the deceased Sakramma is enough to record that the defendant was not holding the property to the exclusion of plaintiff No. 1. As pointed out by the Supreme Court in decision referred to supra, it should be held that the defendant was holding the property on behalf of or as an agent of the co-owners. This is not a case in which any substantial sums have been spent on the management or improvement of the property. Spending of some amount over the property itself would not vest any right of adverse possession in the defendant against a co-owner on the ground of adverse possession. That issue is therefore irrelevant. This is not a case in which any substantial sums have been spent on the management or improvement of the property. Spending of some amount over the property itself would not vest any right of adverse possession in the defendant against a co-owner on the ground of adverse possession. That issue is therefore irrelevant. If the defendant hold the property on behalf of his other co-owners he cannot perfect title by adverse possession. That position (sic) is foreign to the present situation and cannot be permitted to override the pre-existing rights. It is to this extent that an error has been committed by the learned trial Judge, which is required to be corrected in this appeal. ( 8 ) THE appeal accordingly succeeds, the judgment of the trial Court is set aside. The suit is decreed and it is directed that the heirs of plaintiff No. 1 shall be entitled to one-half share of the property in question and the office to draw up the decree accordingly. In the facts and circumstances of the case there shall be no order as to costs. Appeal allowed. --- *** --- .