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2014 DIGILAW 1685 (MAD)

G. Radhakrishnan v. Kanna Pillai

2014-06-25

S.VIMALA

body2014
Judgment : 1. “Whether a co-owner, without pleading and proving that his possession was 'nee vi nee clam nee precario' i.e. peaceful, open and continuous, for the statutory period, can succeed in non-suiting the plaintiff ?” - is the issue to be considered in this second appeal. This is not a case of the father denying the right to property to the son, but it is vice versa. This is a case where, though the property stands in the name of the father, which is admittedly a joint family property, the son denies the right of the father to claim his share of the property on the plea of ouster. Without the imperative pleadings and evidence regarding ouster, how far the plea of the son is maintainable is the issue to be decided. 2. The father has filed the suit both against his son / vendor, the first defendant, and defendants 2 to 5 / the purchasers of item Nos.1 to 4 of the suit property (from the first defendant alone), claiming half-share in the entire 8 items of the suit property. A preliminary decree was passed in accordance with the claim made in the plaint. Challenging the same, first appeal was filed by defendants 2 to 5. The first appeal was dismissed and thereby, the judgment of the trial Court got confirmed. Aggrieved over the judgment and decree of the first appellate Court, the second appeal has been filed by the defendants 2 and 3. Brief Facts: 3. The first defendant is the only son of the plaintiff. The suit properties are the ancestral properties even in the hands of plaintiff's father, Arumugampillai. Plaintiff's father and his (father's) brothers got the properties divided by virtue of the partition deed dated 04.07.1983. In the partition, the suit properties were allotted to the share of plaintiff's father, Arumugampillai. 3.1. Arumugampillai had three sons, namely, Kannan-plaintiff, Pandurangan and Mani. There was an oral partition among three of them and the suit properties were set apart to the share of plaintiff. 3.2. The first defendant has no right to alienate the entire extent of the properties. At the most, he can sell only his half-share of the properties. Without any right, the first defendant has executed sale deeds in favour of defendants 2 to 5. Hence, the plaintiff was constrained to file the suit for partition. 3.3. The first defendant remained ex parte. At the most, he can sell only his half-share of the properties. Without any right, the first defendant has executed sale deeds in favour of defendants 2 to 5. Hence, the plaintiff was constrained to file the suit for partition. 3.3. The first defendant remained ex parte. The second defendant filed the written statement with the following contentions: The suit properties originally belonged to the plaintiff's ancestors and the plaintiff got the same by way of partition; The plaintiff did not live as a member of the joint family and he married according to his will and wish and got separated from the family. Therefore, he cannot be said to be a member of the joint family; The plaintiff has lost title by not objecting to the sale deeds executed by the first defendant and also by not making any claim over the suit properties. 3.4. The fifth defendant filed a separate written statement, wherein the contents are as under: The first defendant has prescribed title by adverse possession; The plaintiff never objected to the sale deeds executed by the first defendant and therefore, he is estopped from denying the title of the first defendant; 4. The trial Court framed the following three issues: Whether the suit properties are joint family properties belonging to the plaintiff and the first defendant ? Whether the plaintiff is entitled to a share in the suit properties ? What is the share ? To what relief, the plaintiff is entitled to ? 4.1. Holding that the suit properties are joint family properties belonging to the plaintiff and the first defendant, the trial Court granted the decree for partition and separate possession of plaintiff's half-share over the suit properties. The First Appellate Court also confirmed the findings of the trial Court. Hence, the second appeal. 5. The substantial questions of law, on which the second appeal was admitted are modified during the course of hearing of appeal and the same read as under: Whether a co-owner, without pleading and proving that his possession was 'nee vi nee clam nee precario' i.e. peaceful, open and continuous, for the statutory period, can succeed in non-suiting the plaintiff ? Just because the joint family property was in exclusive possession of one co-parcener, whether that exclusive possession can be treated to be adverse to the other co-parceners, without any proof as to hostile animus ?” 6. Just because the joint family property was in exclusive possession of one co-parcener, whether that exclusive possession can be treated to be adverse to the other co-parceners, without any proof as to hostile animus ?” 6. In order to answer the issues raised in the appeal, it is necessary to consider the essential requirements as to the pleadings regarding adverse possession, which has been laid down by the Apex Court in the case of Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779 . “Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed ” It would be relevant to point out that these details are lacking in the pleadings of the present case. 6.1. The essential elements that must be proved in order to support the claim of adverse possession has been highlighted in the decision of three Judges Bench of the Apex Court reported in (1993) 4 SCC 375 (Parsinnin vs. Sukhi), cited supra, which are extracted below: "5. The appellants claimed adverse possession. The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. .... Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession mast be 'nee vi nee clam nee precario' i.e. Peaceful, open and continuous" The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner." 6.2. It is the grievance of the appellants / defendants 2 and 3 that they being the bona fide purchasers of the suit property for valuable consideration, the trial Court is not correct in holding that the plaintiff is entitled to half of the share of the suit property, without declaring the sale deeds executed by the co-owner as null and void. Continuous possession of the appellants was not considered by the trial Court, is yet another grievance of the appellants. 7. Continuous possession of the appellants was not considered by the trial Court, is yet another grievance of the appellants. 7. A perusal of the grounds of appeal would go to show that the judgment of the trial Court and the first appellate Court have not been understood by the appellants in proper perspective. The finding of the first appellate Court is that the sale deeds executed under Exs.B1 to B5 would bind the first defendant only to the extent of property owned by the first defendant, i.e., half-share of the suit property. Only in respect of the plaintiff's half-share, it has been held that the sale deeds will not be binding upon the plaintiff. 7.1. The trial court in paragraph 12 of the judgment has held that the plaintiff and the first defendant are entitled to half-share in the suit properties. While allotting the properties between the plaintiff and the first defendant, the properties sold by the first defendant to defendants 2 to 5 must be allotted to the share of the first defendant is the direction issued by the trial Court with regard to mode of allotment of the suit properties at the time of partition. 8. The contention of the learned counsel for the appellants is that the Courts below should have upheld the right of the first defendant over the entire extent of the suit properties and that plaintiff ought not to have been allotted half-share over the suit property. In other words, the contention is that the first defendant has prescribed title by adverse possession by ousting the father from the suit property and therefore, the right of the first defendant and consequently, the right of the purchasers claiming under him must be upheld. 9. On the other hand, it is contended by the learned counsel for the first respondent / plaintiff that neither the oral evidence nor the documentary evidence available would indicate the claim of title by adverse possession. It is pointed out that there are not even pleadings with regard to adverse possession. 10. It is not the case of purchasers / defendants 2 to 5 that the suit property is a separate property of the first defendant. In other words, they have admitted that it is the joint family property belonging to the plaintiff and the first defendant. 10. It is not the case of purchasers / defendants 2 to 5 that the suit property is a separate property of the first defendant. In other words, they have admitted that it is the joint family property belonging to the plaintiff and the first defendant. Contending that the father- plaintiff was living away from his son / first defendant and that he was not in physical possession of suit property for several years and that he has not objected to the execution of sale deeds by the first defendant, the defendants contended that the first defendant has prescribed title by adverse possession. 10.1. This plea is incorrect. Every co-owner has equal right to the possession of every bit of joint property and none of them can exclude the other from the enjoyment thereof. Many a time joint possession is inconvenient. There may be arrangements for the exclusive enjoyment of different portions of the common property. Again, a co-owner may possess exclusively any property which had not been hitherto enjoyed by any other co-owner. For want of knowledge or for other reasons, the other co-owners would not have protested. That does not mean that they have consented or relinquished their right over the property. The exclusive possession must point out any act which is inconsistent with joint ownership. 10.2. A purchaser from a co-owner steps into the shoes of his vendor and becomes a co-owner. Such a purchaser from a co-parcener cannot become a co-parcener nor a purchaser from a joint tenant may be invested with rights or be subjected to the liabilities of a joint tenant is the settled legal position. But, such a purchaser would be a tenant in common with the other co-owners and would be bound by any amicable arrangement as to possession entered into before such purchase. Only to this extent, purchaser's rights have been protected under law. 11. Admittedly, the plaintiff and the first defendant are father and son. Admittedly, the suit property is also a joint family property belonging to the plaintiff and the first defendant. Therefore, the defendants can succeed only if they plead and prove ouster on the part of the first defendant. 12. 11. Admittedly, the plaintiff and the first defendant are father and son. Admittedly, the suit property is also a joint family property belonging to the plaintiff and the first defendant. Therefore, the defendants can succeed only if they plead and prove ouster on the part of the first defendant. 12. When a co-owner set up a plea of ouster to prove adverse character of such possession by asserting affirmatively and that too, to the knowledge of other members that he asserted the exclusive hostile title and if the possession continues for statutory period of more than twelve years, then only, the co-owner / purchaser from the co-owner can succeed. Therefore, it is necessary to find out whether the burden of proof has been discharged either by the first defendant or by defendants 2 and 3 who are claiming title through the first defendant. 12.1. The burden of proof lies on the party who claims adverse possession. The defendants had to plead and prove that the possession of the first defendant was nee vi, nee clam, nee precario, i.e., peaceful, open and continuous. This has been so held in the case reported in (1993) 4 SCC 375 (Parsinnin vs. Sukhi), cited supra. 12.2. As per the decision reported in (1995) 4 SCC 496 (Vidya Devi vs. Prem Prakash) (in para 27 and 28), in case of co-owner, three elements are necessary for establishing the plea of ouster. declaration of hostile animus; long and uninterrupted possession of the person pleading ouster; and exercise of right of exclusive ownership, openly and to the knowledge of other co-owner. 12.3. One who holds possession on behalf of another, does not, by mere denial of others title, make his possession adverse so as to give himself the benefit of statute of limitation. This is the proposition held in the decision reported in (1995) 2 SCC 543 (Annasaheb Bapusaheb Patil Vs. Balwant). 12.4. It has been held, in the context of co-sharer, in (1980) 4 SCC 396 (Karbalai Begum vs. Mohd. Sayeed), that mere non-participation in the rent and profits of the land of a co-sharer does not amount to ouster. 13. If the facts of this case are tested on the bed rock of the principles enunciated by the Supreme Court, it will be clear, as already stated, that the case of the defendants suffer from lack of pleadings and evidence. 14. 13. If the facts of this case are tested on the bed rock of the principles enunciated by the Supreme Court, it will be clear, as already stated, that the case of the defendants suffer from lack of pleadings and evidence. 14. Just because the plaintiff was living away from the first defendant, just because the plaintiff married a lady of his own choice and just because the plaintiff did not live jointly with the first defendant, it will not lead to the conclusion that the plaintiff is not a joint family member. The first defendant has not proved the intention to claim the property adverse to the interest of the plaintiff, leading to the invasion of the rights of the plaintiff. 15. The Courts below have rightly appreciated the legal proposition in proper perspective and therefore, there are no grounds to interfere with the judgments and decree of the Courts below. 16. In the result, the second appeal is dismissed. The judgement and decree dated 16.09.2004 in A.S.No.20 of 2004 before the Sub Court, Panruti, confirming the judgment and decree, dated 27.02.2004 in O.S.No.107 of 2002 on the file of the District Munsif Court, Panruti, are confirmed. No costs. Consequently, C.M.P.No.10677 of 2005 is also dismissed.