JUDGMENT 1. Appellant-plaintiff no. 1 along with respondent nos. 2 and 4 (plaintiff nos. 2 and 3 respectively) filed a suit for partition and perpetual injunction against the respondent nos. 1 and 3 (defendant nos. 1 and 2) in respect of property bearing no. 3477, Gali No. 4/5, Rehgar Pura, Karol Bagh, New Delhi (for short, hereinafter referred to as the “suit property”). By the judgment and decree dated 8th September, 1980 trial court dismissed the suit, hence, this appeal has been preferred by plaintiff no.1 wherein plaintiff nos.2 and 3 have been impleaded as respondent nos. 2 and 4 as they chose not to challenge the impugned judgment and decree. 2. Plaintiffs alleged in the plaint that plaintiff no. 1 was daughter and plaintiff nos. 2, 3 and defendant no. 2 were grand children; whereas defendant no. 1 was daughter-in-law of Shri Maman, who died in the year 1948. The pedigree table of Late Shri Maman is as under :- 3. Late Shri Maman got the suit property built in the year 1924 after “PEDIGREE TABLE” acquiring the land underneath it on lease during the year 1919 from Delhi Improvement Trust. Late Shri Maman gifted the suit property to his daughters, that is, plaintiff no. 1 and Smt. Dharam Kaur @ Modi (mother of plaintiff nos. 2 and 3 and defendant no.2) on 19th August, 1945 through a registered Gift Deed dated 21st August, 1945. The daughters along with widows of pre-deceased son continued to reside with Late Shri Maman in the suit property till his death. They were still in possession of the suit property. Smt. Sarupi, second widow of deceased Prabhu, son of Late Shri Maman, was issue less. She remarried after the death of Prabhu prior to coming into force the Hindu Succession Act, 1956, hence, she was not entitled to any share in the suit property being the widow of pre-deceased son. Plaintiff no. 1 and Late Smt. Dharam Kaur, mother of plaintiff nos. 2, 3 and defendant no. 2 filed a suit for possession in respect of the suit property on 19th December, 1946 against the defendant no.1 which was decreed by Sub Judge, Ist Class on 23rd March, 1948. Defendant no. Plaintiff no. 1 and Late Smt. Dharam Kaur, mother of plaintiff nos. 2, 3 and defendant no. 2 filed a suit for possession in respect of the suit property on 19th December, 1946 against the defendant no.1 which was decreed by Sub Judge, Ist Class on 23rd March, 1948. Defendant no. 1 and Smt. Sarupi went in appeal before Punjab High Court which was partly allowed on 10th October, 1954 whereby plaintiffs were granted a decree for possession of half of the suit property. Accordingly, plaintiff nos. 2, 3 and defendant no. 2 were joint owners of the suit property. The remaining half portion of the suit property fell into the share of defendant no.1 and Smt. Sarupi. It was alleged that defendant no. 2 was not interested in institution of the partition suit, thus, was arrayed as defendant no.2. Defendant no. 1 had been openly claiming herself to be the exclusive owner of suit property and was threatening to alienate and transfer the suit property, hence, the suit for partition and perpetual injunction. 4. Defendant no. 1 filed written statement wherein she took certain preliminary objections to the effect that suit was barred by limitation; suit was undervalued, inasmuch as, insufficient court fee was paid; suit was not maintainable; suit was barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as “The Code”). On merits, it was denied that Late Shri Maman acquired and got built the suit property after taking the lease of land underneath the built up portion from Delhi Improvement Trust in the year 1919. It was alleged that Late Shri Maman was very poor and had no means to acquire the suit property. It was Prabhu, son of Late Shri Maman and husband of defendant no. 1 who had purchased the land underneath the disputed property from Shri Lachhman son of Shri Sadhu and raised construction from his own earnings. Shri Lachhman had taken the lease from the Deputy Commissioner of Delhi. Prabhu took the land on lease for a period of 20 years in the name of his father-Late Shri Maman out of respect for his father. It was alleged that suit property was self acquired property of Late Shri Prabhu who raised the construction from his own funds and earnings. Late Shri Maman had no right, title or interest in the suit property. It was alleged that suit property was self acquired property of Late Shri Prabhu who raised the construction from his own funds and earnings. Late Shri Maman had no right, title or interest in the suit property. It was denied that Late Shri Maman had gifted the suit property to his daughters, that is, plaintiff no. 1 and Smt. Dharam Kaur. It was alleged that even if it is assumed that the gift deed was executed the same was void, invalid and illegal since Late Shri Maman had no right to execute the alleged gift deed. It was denied that daughters of Late Shri Maman had been living with him in the suit property. It was alleged that the cause of action, if any, for filing suit for partition arose during the year 1946, inasmuch as, defendants disputed the claim of plaintiffs during Suit No. 285/1986 which was decreed way back on 23rd March, 1948. Appeal, preferred against the said judgment, was decided on 15th October, 1954 but no execution was filed against the said decree of High Court. Execution became time barred on 15th October, 1966, thus, plaintiffs had abandoned their rights. Suit was hopelessly barred by time for the above reason. Defendant no. 1 has been in actual physical possession of the suit property right from the death of her husband Late Shri Prabhu. She never allowed the plaintiffs to enter in the suit property or obtain possession over any part thereof. The possession of defendant no. 1 over the suit property was exclusive open, hostile and continuous, thus, she had become owner by adverse possession. Defendant no. 1 had made additions and alterations in the suit property, inasmuch as, got her name mutated in the municipal records and was paying the house tax, water and electricity bills etc. It is she who had been letting out the different portions of the suit property to tenants and recovering rents. She had also acquired fresh lease hold rights over the plot underneath the disputed property in her own name. It was prayed that suit be dismissed. 5. Following issues were framed by the Trial Court :- i) Whether the plaintiffs and defendant no. 2 are join owners of the suit property as alleged in para 8 of the plaint? OPP ii) Whether the suit is within limitation? OPP. It was prayed that suit be dismissed. 5. Following issues were framed by the Trial Court :- i) Whether the plaintiffs and defendant no. 2 are join owners of the suit property as alleged in para 8 of the plaint? OPP ii) Whether the suit is within limitation? OPP. iii) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPP. iv) Whether the suit is maintainable? OPP v) Whether the defendant no. 1 is or has become the sole and exclusive owner of the suit property as alleged in her written statement? OPD vi) Whether the suit is barred under Order 2 Rule 2 CPC? vii) What is the effect of non-execution of the decree passed in suit no. 285 of 1946, as modified by the High Court? OPP viii) Relief. 6. Upon scrutiny of entire evidence adduced by the parties trial court has held that suit was not maintainable as the decree passed by the Punjab High Court in the year 1954 had become incapable of execution since no execution petition was filed by the appellant. Punjab High Court held that the site was acquired and taken on lease with the money which was provided wholly or partly by Late Shri Maman on which construction was raised by Late Shri Prabhu, thus, plaintiffs and defendants were joint owners in the suit property. Issue No. 1 was decided accordingly. During the course of hearing, Issue Nos. 3 and 6 were not pressed by defendant no.1. As regards Issue Nos. 4 and 7, Trial Court held that suit was barred under the provisions of Section 47 of the Code which envisaged that all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. Trial court was of the view that suit was filed on the basis of a decree passed by the Punjab High Court on 15th October, 1954 whereby it was held that appellants were entitled to possession of half share in the suit property. If the said decree was not taken into consideration the plaintiffs were left with no interest in the suit property. Thus, the present suit was nothing but a subtle device to execute the said decree. If the said decree was not taken into consideration the plaintiffs were left with no interest in the suit property. Thus, the present suit was nothing but a subtle device to execute the said decree. Reliance was placed on Ramanand and others versus Jai Raj & Others AIR 1921 All 369 wherein Allahabad High Court held thus:- “we have given our best consideration to the question before us and we are of opinion that, both on authority and on a correct interpretation of Section 47 of the Code, the present suit was not maintainable. Stripped of all unnecessary details, the relief claimed by the plaintiffs, in substance, amounts to asking for the fruits of a decree which they are unable to execute owing to lapse of time. The suit, in effect, does raise a question “relating to the execution, discharge or satisfaction” of the former decree and cannot be determined by a separate suit. The plaintiffs’ claim in reality is that they obtained a decree for possession of this property, the defendants have not given them possession in spite of the said decree, and therefore the Court should compel the defendants to carry out their obligation under that decree. In our opinion such a suit falls clearly within the purview of Section 47 of the Code, and if it did not, we fail to see what other form of suit would”. 7. Reliance was also placed on Mal Singh Bika Singh and Others versus Mohinder Singh Mehar Singh AIR 1970 P&H 509 wherein, it was held as under :- “If the nature of a decree requires that it should be executed, a decree-holder cannot, after allowing the period of limitation to lapse without issuing process of execution, seek by a fresh suit on the decree to obtain that which he should have sought for by execution”. 8. Trial court observed that decree was passed for possession of half share in the disputed property, thus, plaintiffs could have very well applied for the execution of the decree and in that eventuality the bailiff could have put them in possession over the disputed property under the orders of the court, executing the said decree. 9. As regards Issue No. 5, it was held that defendant no. 1 had become sole owner of the suit property by way of adverse possession. 9. As regards Issue No. 5, it was held that defendant no. 1 had become sole owner of the suit property by way of adverse possession. One joint owner can perfect his title by adverse possession against the other joint owner, however, in that eventuality there must be exclusive possession of one joint owner over the disputed property for over twelve years. The said possession must be open, hostile as a matter of right against the other joint owner. On the basis of evidence on record, it was held that defendant had succeeded in proving all the ingredients for claiming ownership by way of adverse possession. Trial court placed reliance on P. Lakshmi Reddy versus L. Lakshmi Reddly AIR 1957 SC 314 to conclude that one joint owner can claim adverse possession over the disputed property. Reliance was also placed on Haraballav Sarma and others versus Mohodar Sharma AIR 1975 Guwahati 76 and A.R.R.M.V. Arunachallam Chetty and others versus Venkatachalapathi Guruswamigal AIR 1919 Privy Council 62. 10. In Haraballav Sarma (supra), it was held as under:- “The submission of learned counsel cannot be accepted as a correct proposition of law. In my opinion when a person openly and continuously possesses land under a claim of right adverse to the title of the true owner for the statutory period, his possession becomes adverse to the rightful owner. His belief that the land did not belong to the true owner is immaterial. His belief that it belonged to himself is necessary as that will be a claim of right adverse to the title of the true owner.” 11. In Arunachallam Chetty (supra) it was held as under:- “…This is a very ordinary case of possession nec vi nec clam nec precario. The person now claiming to be owner has stood by while others continued to possess not by any derivative title but in practical contravention of his alleged rights. The law does not require that the claimant to ownership must in such circumstances be shown to have protested that his rights were being violated, and that the possession went on adversely to his protests. In short, their Lordships cannot agree with the legal view upon this subject of possession adopted by the Court below.” 12. The law does not require that the claimant to ownership must in such circumstances be shown to have protested that his rights were being violated, and that the possession went on adversely to his protests. In short, their Lordships cannot agree with the legal view upon this subject of possession adopted by the Court below.” 12. In P. Lakshmi Reddy (supra), Supreme Court held as under:- “Now, the ordinary classical requirement of the adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 at p 82: (AIR 1934 PC 23 at p. 25) (A). 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. Collector of Khulna, 27 Ind App 136 at p. 140 (PC) (B). But it is well-settled that in order to establish adverse possession of one coheir as against another it is enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possession 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 coheirs. 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-heir’s title. (See Corea v. Appuhamy, 1912 AC 230 (C). 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.” 13. Law regarding adverse possession is no more res integra. Long and continuous possession by itself, it is trite, would not constitute adverse possession. A person claiming adverse possession has to prove his continuous and hostile possession against the true owner. For proving adverse possession ouster of the co-owner has also to be there. Law regarding adverse possession is no more res integra. Long and continuous possession by itself, it is trite, would not constitute adverse possession. A person claiming adverse possession has to prove his continuous and hostile possession against the true owner. For proving adverse possession ouster of the co-owner has also to be there. In order to show that possession of the co-owner is adverse to other it is necessary that there should be ouster or something equivalent to it. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. These 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 coowner. 14. Coming back to the facts of the present case, defendant no. 1 had all along been claiming that the suit property did not belong to late Shri Maman. This plea was taken in the suit in the year 1946. It was alleged that gift deed was invalid for the above reason. Gift deed was executed under undue influence. Superstructure was raised by Late Shri Probhu from his own funds. The said suit was decreed on 23rd March, 1948 by the Sub-Judge Ist Class in favour of the plaintiff no.1 and Dharam Kaur. Defendant no. 1 Sarupi went in appeal before the Punjab High Court which was partly allowed on 10th October, 1954. It was held that there was no iota of evidence on record to justify the conclusion of Sub-Judge that either the plot of land which was taken on lease in the year 1919 or the superstructure, which was put up thereon in or about the year 1924, was acquired with the aid of joint family property. It was further held that suit property was not a joint family property. It was also held that though the lease was taken in the name of Late Shri Mamam but this fact alone was not sufficient to prove conclusively that he provided funds for the payment of lease money or that his son provided the funds from his income. No clear evidence was available on record in this regard. However, there was convincing evidence to justify the conclusion that superstructure was built up by or at the expense of Late Shri Prabhu. No clear evidence was available on record in this regard. However, there was convincing evidence to justify the conclusion that superstructure was built up by or at the expense of Late Shri Prabhu. In the year 1924 when the house was constructed Late Shri Maman was aged about 65 years. He had not inherited any property from his father and he did not follow any vocation or engage in any work. When he died at the age of 80, in the year 1946 he was deaf as well as blind and had been so for about 15 years previously. Thus, he was incapable because of his physical infirmities either of earning a livelihood for himself or of contributing substantially towards the construction of the building. Late Shri Prabhu was 40 years of age in the year 1924 and was mason and electrician by profession. He was reasonably affluent. He purchased various quantities of goods required for construction of the house. Thus, it was held that although the site was probably taken on lease with his funds by Late Shri Maman but the construction was raised at the expense of Late Shri Prabhu. It was, thus, concluded that half the property in suit should be deemed to be self acquired property of Maman and other half as that of Prabhu. Thus, Maman had power to make a gift of his own share to his daughters but had no power whatsoever to make a gift of the share of his son which on the death of the son had devolved on his widows. Punjab High Court granted a decree of possession to plaintiff no.1 and Dharam Kaur in respect of half of the suit property. 15. It is not in dispute that the decree was not executed by the plaintiffs. There is sufficient evidence on record to show that plaintiffs were never in possession of the suit property which fact is also evident from the action of filing of suit for possession which was decreed ultimately in their favour in respect of half share in the suit property by the Punjab High Court on 15th October, 1954. Plaintiffs also failed to lead any cogent evidence to show that after the decree they came in possession of any portion of the suit property through the process of court or otherwise. Plaintiffs also failed to lead any cogent evidence to show that after the decree they came in possession of any portion of the suit property through the process of court or otherwise. On the other hand, sufficient and conclusive evidence has been led by the defendant no. 1 before trial court to show that it is she who had been in continuous possession of the suit property. Plaintiffs have all along been out of the suit property. Right from the beginning defendant no. 1 had been asserting her right in the suit property. She had been claiming ouster of the plaintiffs from the suit property, inasmuch as, has proved the same by leading definite evidence in this regard. The possession of defendant no.1 in the suit property has all along remained hostile to the plaintiffs. Trial court has taken a note of the fact regarding continuous possession of defendant no.1 in the suit property which was not only supported by the ocular evidence but also from documentary evidence including decree passed by the Punjab High Court as well as other documents, that is, house tax receipts, electricity bills, water bills etc. which were paid by the defendant no.1. There is not even an iota of evidence regarding possession of the appellant. Thus, in my view, trial court has rightly concluded that possession of defendant no.1 was open, hostile and as a matter of right against other joint owners continuously for more than 12 years, thus, she had acquired the ownership rights by way of adverse possession. Obviously, this would be in respect of half portion of the suit property since as per the decree of Punjab High Court, which has remained unchallenged, defendant no.1 otherwise was having ownership rights in respect of half portion of the suit property. 16. Learned senior counsel has vehemently contended that defendant no.1 has taken diametrically opposite pleas which are mutually destructive. On one hand, she claimed herself to be the exclusive owner of suit property having derived title from her late husband on the other, she has claimed that she was absolute owner of the entire suit property as is evident from her written statement wherein the judgment of Punjab High Court has also been assailed as having been decreed only with regard to the possession and not on the question of title, which plea has been negated by the trial court. Having failed in said plea respondent sought to base her claim on adverse possession. He has contended that the two claims are diametrically opposite and are mutually destructive. The latter does not begin to commence till the former is renounced. Reliance has been placed on N. Kirpal Singh versus S.Harchar Singh 2011 (121) DRJ 66. I do not find any force in this contention of learned senior counsel. The judgment relied upon by him is in the context of different facts and is of no help to the appellant. In the present case, right from the beginning defendant no.1 had been asserting that Late Shri Maman was not the owner. Late Shri Prabhu had raised construction. She had derived the title from her Late husband Prabhu. Late Shri Maman had no right to gift the suit property. However, this plea was not accepted by the Punjab High Court in appeal and it was held that Late Shri Maman and Late Shri Prabhu were having joint rights in the suit property. Maman could have passed on his share to his daughters by way of gift in respect of his half share while other half share vests in the widows of Late Shri Prabhu. Defendant no. 1 is the widow of Late Shri Prabhu. Decree passed by the Punjab High Court had become final and could not have been assailed in this suit as has been rightly held by the trial court while dealing Issue No.1. It is in the context of Punjab High Court judgment that plea of adverse possession has been set up, obviously, because on the face of Punjab High Court judgment defendant no.1 could not have claimed herself to be exclusive ownership rights flowing from her Late husband. Only respect of the remaining half share she could have claimed ownership rights by way of adverse possession. 17. Learned senior counsel has next contended that after the decree was passed by Punjab High Court on 10th October, 1954, the nature of possession of plaintiffs stood changed. The possession of defendant no.1, after passing of decree in the year 1954, became joint in view of the settlement/compromise arrived at between the parties. After passing of the decree plaintiffs otherwise, are deemed in constructive possession of the suit property being co-sharer. This argument also has no force. The possession of defendant no.1, after passing of decree in the year 1954, became joint in view of the settlement/compromise arrived at between the parties. After passing of the decree plaintiffs otherwise, are deemed in constructive possession of the suit property being co-sharer. This argument also has no force. No conclusive evidence could be led by the appellant that after the decree a compromise or settlement was arrived at between the parties whereby defendant no.1 accepted their joint possession. In fact, the evidence led by defendant no. 1 before the trial court show otherwise. Defendant no.1 all throughout disputed the possession of the plaintiffs. There is nothing on record to indicate that defendant no.1 acknowledged or accepted the joint possession of plaintiffs at any stage. 18. Learned senior counsel has further contended that trial court has committed a patent error by accepting the house tax receipts as well as electricity and water bills to conclude that defendant no.1 had derived ownership rights by way of adverse possession. Reliance has been placed on Harbans Kaur versus Bhola Nath & Ors. 57 (1995) DLT 101. This argument is rejected being misconceived. The above referred documents have not been accepted as a proof of title of the defendant no.1. Judicial notice of the above documents has been taken with regard to physical possession of the defendant no. 1 in respect of the suit property and nothing wrong can be found with this approach. In Harbans Kaur (supra), it has been held that a person who is in possession is bound to pay house tax as well as electricity and water bills; meaning thereby such documents can be accepted as proof of actual physical possession of a person. 19. Learned senior counsel has further contended that suit filed in the year 1946 was only for possession and no relief of partition was claimed at that time, thus, Court was not competent to go into the question of partition of the suit property. The decree passed in the year 1954 was merely a decree of joint possession. No partition by metes and bounds had been ordered, thus, in absence of specific demarcation of the share of the parties in the decree. Executing Court could not have gone beyond the decree and allot separate portions to the parties; meaning thereby the decree passed in the year 1954 in its form was inexecutable. No partition by metes and bounds had been ordered, thus, in absence of specific demarcation of the share of the parties in the decree. Executing Court could not have gone beyond the decree and allot separate portions to the parties; meaning thereby the decree passed in the year 1954 in its form was inexecutable. Executing Court could not have gone beyond or behind the decree in exercise of its powers under Section 47 of the Code. Thus, finding returned by the trial court that suit was not maintainable is perverse. Reliance has been placed on Vijay Kumar Jain & Ors. versus A.R. Marwah 103 (2003) DLT 193. I need not to go into this question in detail since, in view of the findings on the issue of adverse possession suit must fail, inasmuch as, the suit otherwise is hopelessly barred by time even if for the sake of arguments, contention of learned senior counsel regarding decree being inexecutable are accepted. Suit filed by the plaintiffs for partition, on the face of it, is hopelessly barred by time as has rightly been held by the trial court. Vide decree passed by Punjab High Court appellant and late Smt. Dharam Kaur (mother of plaintiff nos. 2 and 3 and defendant no.2) were jointly held entitled to half share in the suit property; while the other half share vested in defendant no.1. The hostility between the plaintiffs and the defendant no.1right from the day one is writ large since defendant no.1 had been resisting the claim of plaintiffs to the possession of suit property, inasmuch as, they were never in joint possession of the suit property as is evident from the evidence on record. Thus, the cause of action for filing the suit for partition arose on 15th October, 1954 when the decree was passed and the plaintiffs ought to have filed the suit for partion, if any, within the period of three years from the said date, that is, October, 1957. However, the present suit has been filed in the year 1976, that is, after about 22 years. Period of limitation relating to a partition suit would be three years under the residuary provision, that is, Article 113 of the Limitation Act which envisages a period of three years for filing such suits from the date when the right to sue accrues. Period of limitation relating to a partition suit would be three years under the residuary provision, that is, Article 113 of the Limitation Act which envisages a period of three years for filing such suits from the date when the right to sue accrues. In the instant case, right to sue commenced on the date when decree was passed by Punjab High Court on 15th October, 1954. 20. In the light of above discussions, appeal is dismissed. No order as to costs.