Amrit Lal v. Jagdish Lal — 1999 DIGILAW 34 (RAJ)

Honble SINGH, J.–Heard the learned counsel for the appellants and the respondent. (2). This appeal is directed against the judgment and preliminary decree dated 30.11.96 passed by the learned Additional District Judge No.1, Sri Ganganagar in civil suit no. 83/91 Jagdish vs. Amrit Lal. By the aforesaid judgment and decree, the learned Additional District Judge no.1, Sri Ganganagar declared the parties to the suit to be entitled to 1/3 share in the house in question and further held the plaintiff to be entitled for partition. (3). The learned counsel for the appellants has submitted that the findings on issues no. 1, 2, 3 and 7 by the trial Court are incorrect and against law. The learned counsel for the respondent has supported the impugned judgment and decree passed by the learned Additional District Judge No.1, Sri Ganganagar. (4). It appears that respondent-plaintiff Jagdish Lal filed a suit for partition of a residential house no. 78-P-Block, Sri Ganganagar. According to the averments made in the plaint, the house in dispute was purchased on 2nd April, 1960, in the name of the plaintiff and the defendants. On the date of the execution of the sale-deed, the house was duly constructed. The money for the purchase of the house was supplied by the father of the plaintiff and the respondents and during his life time, the father of the plaintiff and the defendants continued to live in the disputed house. He expired on 5th July, 1988. It was further averred in the plaint that the plaintiff and the defendants were jointly in possession of the house in dispute, but after the demise of their father, some differences arose between the plaintiff and the defendants and in consequence thereof, the plaintiff found it difficult to live in the house in dispute unless partition took place. It was also averred in the plaint that the plaintiff requested the defendants for partition of the house, but latter did not care. Consequently, a notice was sent to the defendants on 12th March, 1991, but the defendants did not care to reply the same. The plaintiff, therefore, prayed for the partition of the house in dispute. (5). A joint written statement was filed by the defendant Amrit Lal and Subhash Chandra. It was admitted in the written statement that the house in dispute was purchased on 2nd April, 1960 in the name of the plaintiff and the defendants. The plaintiff, therefore, prayed for the partition of the house in dispute. (5). A joint written statement was filed by the defendant Amrit Lal and Subhash Chandra. It was admitted in the written statement that the house in dispute was purchased on 2nd April, 1960 in the name of the plaintiff and the defendants. However, it was pleaded in the written statement that after the purchase of the house, the defendants alone constructed rooms, two kitchens and two bath rooms and spent about Rs. 2,50,000/-. It was also alleged in the written statement that the plaintiff was never in possession of the house in dispute and after the death of the father of the plaintiff and the defendants, defendants alone continued in the possession of the house. Plaintiffs share in the house in dispute was denied by the defendants and it was pleaded that by adverse possession, both the defendants acquired sole ownership rights in the house in dispute and the right and title of the plaintiff was extinguished. (6). The learned trial Judge (Additional Civil Judge) Sri Ganganagar framed as many as 7 issues. Issue no. 8 was added on 1st August, 1985 by the learned Additional District Judge, to whose Court, the suit had been transferred. Issues no. 1,2,3 and 7 are reproduced below:- ¼1½ vk;k fookfnr ifjlj ij izfroknhx.k ds }kjk gh fuek.kZ dk;Z fd;k x;k gS vkSj ;g igys iq[rk rkehjlqnk ugha Fkk\ ¼2½ vk;k oknh fookfnr edku ua- 78-ih Cykd Jhxaxkuxj dk foHkktu djk ikus dk vf/kdkjh gS\ ;fn gkW rks fdl izdkj ls\ ¼3½ vk;k fookfnr edku ij izfroknhx.k dk la;qDr :e ls dCtk lu~ 1960 ls fujUrj fcuk fdlh jksdVksd ds kkafriw.kZ pyk vk jgk gS o dCtk eq[kkyQkuk ds vk/kkj ij bl edku ds ekfyd gks x, gS vkSj bl izdkj oknh dk fgLlk lekIr gks pqdk gSA ¼7½ vuqrks"k\ (7). After hearing both the parties, the learned Additional District Judge by the impugned judgment, decided issue no.1 partly in favour of the plaintiff and partly in favour of the defendant. The learned Additional District Judge held that whatever constructions were made before the death of the father of the parties, were made out of the sum supplied by the father of the plaintiff and the defendants and what- ever constructions were made subsequent to the death of the father of the parties, were made by the defendants alone. The learned Additional District Judge held that whatever constructions were made before the death of the father of the parties, were made out of the sum supplied by the father of the plaintiff and the defendants and what- ever constructions were made subsequent to the death of the father of the parties, were made by the defendants alone. Regarding issue no.3, the learned Additional District Judge held that the defendants had failed to prove that they had acquired any right or title in the house in dispute by adverse possession and that it was not proved that the plaintiffs right and title in the house in suit was extinguished. Regar- ding issue no.2, the learned Additional District Judge held that the plaintiff was entitled to partition of the house in suit. Issue no. 7 deals with relief and in view of the finding on issue no.3, the learned Additional District Judge held the plaintiff to be entitled to partition of the house in dispute. (8). During the arguments, the learned counsel for the defendants-appellant was asked whether the defendants are entitled to recover the amount which they spent on raising any constructions in the house in dispute without the consent or permission of the plaintiff-respondent. The learned counsel for the appellants could not bring to my notice any law which may be said to entitle the defendants-appellants in this case to recover part or whole of any amount, which they spent on raising constructions in the house in dispute, without the consent/permission of the plaintiff-respondent. (9). I have carefully gone through the findings given by the learned Additional District Judge No.1, on issue no.1. In view of the findings on record, the finding connate be said to be unreasonable or perverse. I, therefore, find to sufficient gro- und to interfere with the ground of issue no.1. (10). (9). I have carefully gone through the findings given by the learned Additional District Judge No.1, on issue no.1. In view of the findings on record, the finding connate be said to be unreasonable or perverse. I, therefore, find to sufficient gro- und to interfere with the ground of issue no.1. (10). Regarding issue no.3, the learned counsel for the appellants has submitted that the finding given by the learned trial Judge is against law and facts, in as much as, the defendant-appellants have proved by evidence that they were in exclusive possession of the house in dispute since the death of their father and they had raised constructions by spending about Rs.2,50,000/- and the plaintiff, who was in service and was posted outside Sri Ganganagar never resided in the house in dispute nor he occupied any portion of the house ever since the death of his father, must be said to have forfeited his right and title on account of the adverse possession of the defendants for more than 12 years. (11). The learned counsel for the respondent has supported the finding of the learned trial Judge on issue no.3. It is submitted by him that the house in dispute was purchased in the year 1960 in the name of the plaintiff and the defendants without there being any partition of the house, and therefore, the plaintiff and the two defendants became co-owners of the house in dispute and unless it is establi- shed that there was a conscious act of ouster of the plaintiff and such ouster was known to the plaintiff and he acquiesed in its for the statutory period for 12 years necessary for maturing title by adverse possession, it cannot be said that the right and title of the plaintiff in the house in suit has been extinguished nor it can be said that the defendants have become absolute owners of the house in suit to the exclu- sion of the plaintiff. Reliance has been placed by the learned counsel for the respondents on the following cases:- (12). (1) The first case relied upon by the learned counsel for the respondent is Shiv Saran Singh vs. Shri Ram Sarup Thakur (1). Reliance has been placed by the learned counsel for the respondents on the following cases:- (12). (1) The first case relied upon by the learned counsel for the respondent is Shiv Saran Singh vs. Shri Ram Sarup Thakur (1). At page 5 of the All India Reporter, their Lordships of the Division Bench have observed:- ``For upholding the plea of adverse possession, where parties are co-owners of the property and, more so where the relationship bet- ween them is that of husband and wife, law requires strict proof. The essential elements for upholding such a plea, in a case where it is founded upon ouster of a co-owner, are that there should be ``evidence of open assertions of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other so as to constitute ouster. (13). Their Lordships of the Himachal Pradesh High Court placed reliance on the law laid down by the Honble Supreme Court in P. Lakshmi Reddy vs. L. Lakshmi Reddy (2), Govindrao vs. Rajabai (3), Shambhu Prasad Singh vs. Most. Phool Kumari (4) and several other cases. (14). The next case relied upon by the learned counsel for the respondent is Sadasivam vs. K. Doraisamy (5). In this case, their Lordships of the Honble Supreme Court made following observations:- ``Even if it is accepted that Doraisamy had exercised possession over the lands covered by the sale deed, such possession may be explai- ned by indicating that Doraisamy obtained interest to the extent of half share by virtue of the will executed by Karuppanna. Hence, as a cosharer, he was expected to possess the lands not partitioned between the parties. Exclusive possession of a cosharer does not amount to adverse possession against other cosharers unless such possession is excercised by ousting the other cosharers. (15). The next case relied upon by the learned counsel for the respondent is Meethiyan Sidhiqu vs. Muhammed Kunju Pareeth Kutty and Ors. (6). In this case, their Lordships of the Honble Supreme Court laid down the law in the following words:- ``In order to constitute adverse possession the other co- owners out of possession must be proved to have had notice of the assertion of hostile title and exclusive possession ousting them with the requisite animus for the statutory period. It must be pleaded and proved. It must be pleaded and proved. There is no such plea or proof and no such plea or proof could be found out from the judgments of the Courts below also. xxx .... xxxx ...... It is therefore, clear from the above facts that unless there is a specific plea and proof that the appellant had disclaimed his right and asserted hostile title and possession to the knowledge of the respon- dent within the statutory period and the latter acquiesced to it, he cannot succeed to have it established that he perfected his right by prescription. (16). In the case of property jointly owned by two or more persons, so long partition does not take place, the possession of one or more joint owners is deemed to be the possession on behalf of all the co-owners of the property. The rule behind this presumption is that all the joint owners of a property or tenants in common and each of them, though unable to distinguish his separate share, is entitled to possess the property jointly on behalf of himself and all others. This is why possession by one or more joint owners of a property is now be deemed to be possession of all the co-owners. But like all rules of presumption, this presumption has its own limits. It is a rebuttal presumption, which means that the persons, who are in possession of the whole or part of the joint property, may plead and prove that their possession over the joint property is to the exclusion of other co-owners and is hostile them and that they are possessing the joint property, not on behalf of all the co- owners, but for themselves only. In order, such a plea of adverse possession may succeed, it is necessary that there must be proper pleadings and proper proof of the facts showing that the persons in possession of the property or holding the property for themselves only and their possession is adverse to right and interest of other co-owners. It is also necessary that the adverse possession, must be known to the other co-owners and that it should be acquiesced by them during the statutory period necessary for perfecting title by adverse possession. It is also necessary that the adverse possession, must be known to the other co-owners and that it should be acquiesced by them during the statutory period necessary for perfecting title by adverse possession. This principle is based on the general principle that no human-being shall lay traps for another and even if a trap is to be laid, the other party would be given due notice thereof so that the other party may avoid the trap and save his interest. This taboo against laying down the trap by one person against another is the very foundation of the principles of natural justice. When a co- owner occupies the property which is jointly occupied by two or more persons and the property is not partitioned, the presumption that he occupies the property on behalf of all the co-owners, creates a reasonable expectation in the mind of all the co-owners that the possession of property by one or more other co-owners will not be to their detriment. In such cases, if a person enters a property under the guise of a co-owner, but afterwards claims adverse possession against the other co-owners, this would amount to laying down traps against the co-owners. Therefore, as soon as, a co-owner wants to assert a title hostile to other co- owners, he must manifest this intention in such a way so that who are not in possession of such property, may take suitable steps to protect their own possession by taking appropriate steps. So long, this is not done, the plea of adverse possession must fail on account of want of notice to other co-owners. It is also necessary that the adverse possession must be continued without break for the whole of the statutory period necessary for perfecting title by adverse possession. (17). In the instant case, there is nothing to show that the defendant-appellants at any time made known to the plaintiff- respondent that they were possessing the house in dispute not as co-owners of the house, but as persons claiming title adverse to the plaintiff. In view of this, the finding given by the learned trial Court that the plaintiff-defendant are entitled to 1/3 share of the house in dispute and that the defendants-appellants have failed to prove the alleged absolute title to the house in dispute by adverse possession, cannot be said to be unreasonable or perverse. In view of this, the finding given by the learned trial Court that the plaintiff-defendant are entitled to 1/3 share of the house in dispute and that the defendants-appellants have failed to prove the alleged absolute title to the house in dispute by adverse possession, cannot be said to be unreasonable or perverse. The finding on issue no.3, is therefore, upheld. (18). Regarding the issue no.2, the learned counsel for the appellant has sub- mitted that since the house in dispute was purchased out of the funds supplied by the plaintiff and the defendants, therefore, the house in dispute should be deemed to be the property of Brij Lal, the father of the plaintiff and the defendants and therefore, after the death of Brij Lal, not only the plaintiff and the defendants, the daughters of Brij Lal have also become entitled to share in the house, and therefore, the suit for partition is not maintainable so long the daughters of Brij Lal are not impleaded. (19). The defendants-appellants have claimed adverse possession over the property. It is not their case that the house is jointly owned by them along with the plaintiff and the daughters of Brij Lal. The registered sale-deed of the house was executed in the name of the plaintiff and the two defendants. No issue has been framed regarding the question whether the house in dispute was in fact, the property of Brij LaL ? In view of these facts and circumstances of this case, the contention that the house in dispute was the property of Brij Lal and that after his death, his daughters too had become entitled to the share of the house, does not appear to be well founded. I, therefore, find no force in this submission made by the learned counsel for the appellant. (20). For the reasons mentioned above, this appeal does not have any force. It deserves to be rejected and is hereby rejected. (21). The learned counsel for the appellants has submitted that it may be clarified that the finding on issue no.2 will not preclude the trial court from deciding the issue no.6 so far as actual partition of the house is concerned. The learned trial court has deferred the decision on issue no.6, which deals with the question of actual partition of the house having regard to its size and the extent of constructions. The learned trial court has deferred the decision on issue no.6, which deals with the question of actual partition of the house having regard to its size and the extent of constructions. Right to seek partition has been adjudicated upon by the trial court while deciding issue no.2. Shares of the parties have already been declared by the trial court by deciding the issue no.3. In case, the issue no.6 is decided against the plaintiff and the trial court comes to the conclusion that the house, on account of its size and the nature of constructions standing, but it cannot be conveniently devide into three parts, the trial court shall be free to pass such orders as may be deemed fit according to law.