B.R. Patil vs Tulsa Y. Sawkar

B. R. PATIL APPELLANT(S)

VERSUS

TULSA Y. SAWKAR & ORS. RESPONDENT(S)

JUDGMENT

K. M. JOSEPH, J.

1. The first defendant in O.S. No.7944 of 2003 in the

Court of Additional City Civil Judge at Bangalore is

the appellant before us. The said suit was filed by his

sister as the first plaintiff and his sister- in-law

as the second plaintiff. The reliefs sought read as

follows: -

Signature Not Verified Digitally signed by JAGDISH KUMAR

“(1)(a) For partition and separate th possession of their 1/5 share each, in Date: 2022.02.14 17:02:09 IST Reason:

the suit schedule items 1 to 3 properties by metes and bounds and 1/5th share each, in the sale proceeds of items 4 & 5 of the

1 suit schedule properties, after their sale.

(b) a direction to the 1st defendant to render accounts of the rentals received by him, from item no. 1 and 3 of the suit schedule properties from 1983 onwards till the date of suit and for partition of 1/5th share of each plaintiff, in the said rentals.

(c) For an enquiry into the rentals to be received by the 1st defendant from suit items 1 & 3 during the pendency of the suit and for partition of 1/5th share of each plaintiff, and

(d) for mesne profit from the date of preliminary decree, till date of delivery of the 1/5th share of each plaintiff, and

(e) for such other relief or reliefs as this Hon’ble Court deems fit to grant to the plaintiffs in the facts and circumstances of the case.

(2) For Perpetual injunction restraining the 1st defendant from interfering with the peaceful possession and enjoyment of 1st floor of item no. 3 of the suit schedule property and to park the car in the premises of the item No. 3 by the 2nd plaintiff.”

2. The Trial Court partly decreed the suit. It

granted prohibitory injunction in favour of the second

plaintiff.

ORDER

“The suit is decreed in part.

2

The claim of plaintiff for partition and separate possession of their alleged 1/5th share each and other consequential reliefs as prayed in Paras (b) to (d) is dismissed.

The reliefs claimed by defendant No. 1, defendant No. 2 and defendant No. 3 are disallowed.

The claim of plaintiff No. 2 for the relief of injunction is granted in the following terms:

Defendant No. 1, his men, agents etc., are directed not to interfere with peaceful possession and enjoyment of 1st floor of item No. 3 of the suit schedule by plaintiff no. 2 and her right to park the car in the premises of Item No. 3 till the division in the estate of the joint family takes place by metes and bounds, in accordance with law.

In the circumstances of the case, parties are left to bear their own costs.

Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this the 9th day of July, 2005.

(I.S. Antin) XXII Addl. City Civil Judge, Bangalore”

3. Feeling aggrieved by the aforesaid judgment, three

separate appeals have been generated. RFA No.1503/2005

was filed by the appellant. RFA No.1296/2005 was filed

3 by the plaintiffs whereas RFA No.1369/2005 was filed

by the second defendant in the suit. By the impugned

judgment, the High Court has allowed the appeal filed

by the plaintiffs and the second defendant and

dismissed the appeal filed by the first defendant.

Resultantly, the High Court has decreed the suit in the

following manner: -

“33. Accordingly, the judgment dated 08.07.2005 passed by the XXII Addl. City Civil Judge, Bangalore in O.S. No.7944/2003 in respect of partition of suit schedule properties, is set aside.

The appeals are allowed insofar as partition of item Nos. 1 to 4 of plaint schedule properties. The suit for partition of item No.5 of the plaint schedule property is dismissed.

34. The plaintiff Nos.1 and 2 and defendant Nos.1 to 3 who are legal heirs of the deceased R. M. Patil are entitled for 1/5th share each in item Nos.1 to 4 of the suit schedule properties which were acquired by R.M.Patil during his lifetime. Insofar as item No.5 i.e., library books purchased and maintained by late R. M. Patil during his lifetime is concerned, the plaintiffs have averred in the plaint that the value of the library books is about Rs.1 lakh and it was purchased about 30 years back, but no documentary evidence are produced to show the total value of the library/law books, therefore, the plaintiffs are in no way concerned with the library books. Therefore item No.5 is treated as valueless. Since the first defendant was working as junior under

4 his father till his death i.e., 1975 and is continuing his legal profession, he is entitled to retain the library books with him.

Draw the decree accordingly. No order as to costs.”

4. We heard Mr. Salim A. Inamdar, learned counsel

appearing for the appellant and we also heard Mr. S.

N. Bhat, learned senior counsel who appears on behalf

of the plaintiffs, second defendant and also the legal

representatives of the deceased third defendant.

5. Learned counsel for the appellant would address

the following submissions before us: -

He would submit that this is a case where the

suit is liable to be dismissed on the ground that

there was non-joinder of necessary parties. It is

equally bad for the reason that the plaintiffs have

not scheduled all the properties which should have

been included for the purpose of partition. He

would further submit that the Plaint Schedule

Properties were actually purchased out of the Joint

Family funds. These three submissions find their

foundation with the following facts. It is pointed

out that admittedly one Shri Marigowda Patil, had

5 two sons, namely, Shri R. M. Patil and Shri Ningana

Gowda Patil. Shri R. M. Patil had three sons and

two daughters. The first plaintiff is one of the

daughters. So is the third defendant. The second

plaintiff is the daughter-in-law of Shri R. M.

Patil being married to his son late Shri Vijay R.

Patil. The first defendant is another son. So is

the second defendant. There were Joint Family

Properties belonging to the joint family which

consisted of the grandfather of the appellant Shri

Marigowda Patil and his two sons. Those properties

yielded sufficient income and it is utilizing the

same that the plaint schedule properties were

purchased. That apart, those properties should

have been reflected in the plaint schedule and the

entire properties should have been made available

for the Court to make a decree which is valid in

law. Necessarily the inevitable consequence is

that the suit would fail for non-joinder of the

brother of the appellant’s father (Shri R.M. Patil)

who was the other co-owner/coparcener who is

conspicuous on the party array by his absence.

Next, the learned counsel would point out that at

6 any rate the appellant is entitled to Plaint

Schedule Property Item No.3. He points it out to

be a house. He would contend that he is in the

exclusive possession of the house. He relies on

evidence in the form of Notice issued in June, 1991

and he submits that it decisively proves that the

appellant has acquired title by ouster at any rate

in regard to item No.3. He has been in exclusive

possession of the said house. He does not have any

other house. Apart from being illegal it is

inequitable to throw the appellant out on the

street. He would point out that all the other

siblings have houses of their own. Next, he would

point out that the appellant in his written

statement has included certain properties in the

schedule, which stand in the name of family members

which he claimed were purchased with funds of the

joint family. Though the written statement alludes

to properties being properties which stood in the

name of the husbands of appellant’s sisters what

he presses before us is his claim in regard to item

Nos. 2 and 3 relating to properties standing in

the name of defendant No.2. He would submit that

7 the Trial Court has correctly found that these

properties must be treated as properties of the

coparcenary. This was part of the reasoning which

impelled the Court to dismiss the suit insofar as

it related to the relief of partition. He took us

to the finding of the High Court over turning the

said finding and he would complain that the

findings are insupportable with reference to the

evidence on record. He would point out that there

was evidence as to the extent of ancestral property

which was noted by the Trial Court but no challenge

to the same was laid in the appeals filed by the

respondents. He would finally conclude by pointing

out that both in law and equity this Court may pass

an Order which reaches justice to the appellant

and an equitable allocation of the properties at

any rate for which this Court is adequately

equipped under Article 142 of the Constitution of

India.

6. Per contra, Mr. S. N. Bhat, learned senior counsel

would contend that as far as the alleged Joint Family

Properties which existed and adverted to by the learned

counsel for the appellant is concerned, the cause of

8 action for the present suit is the opening up of the

succession upon the death of the father of the

appellant, Shri R. M. Patil on 19.10.1977. The suit in

other words is instituted only for the purpose of

claiming and establishing the rights over the separate

self acquired properties of Shri R. M. Patil. He would

also take us through the pleadings and evidence to

contend that there is no basis in the complaint that

Joint Family Properties had being excluded. Therefore,

he contends that on that basis there is no occasion

also to implead the other branch referred to by the

appellant in the suit. He would contend that all that

is required to be found is whether the plaint schedule

properties are the self acquired properties of Shri R.

M. Patil. As far as this question is concerned, the

pleadings and evidence on record clearly warranted the

conclusion arrived at and the relief which has been

granted by the impugned judgment. In regard to ouster,

he would first of all point out that the pleading of

the first appellant itself is one of partial ouster,

which in law is incapable of extinguishing the title

which the principle of ouster seeks to allow and

achieve. He would further contend that actually the

9 building in question consists of two floors. The

appellant is only in possession of the Ground Floor.

He harnesses the finding of the Trial Court itself that

the second plaintiff was in possession of the First

Floor and he draws our attention to the decree passed

by the Trial Court itself which is one of prohibitory

injunction in favour of the second plaintiff in regard

to the First Floor. He further contends that the very

prayer of the appellant in his written statement was

that he be declared entitled to 1/4th share in the

Plaint Schedule Properties which takes in item No.3

which means that he is admitting title of the co-owners

except the first plaintiff which is impermissible in

law. Regarding the contention of the learned counsel

for the appellant that non-impleadment of the other

branch, may prejudice public interest, he would submit

that it is a theoretical proposition and it has no

application in the facts of this case. The properties

in question which are alleged to exist have not been

established in the evidence and it may not lie in the

mouth of the appellant to voice this complaint. As

regards item Nos. 2 and 3, standing in the name of the

second defendant which the appellant claimed should

10 also be partitioned, he would point out that the

finding of the Trial Court in favour of the appellant

stands correctly overturned by the High Court even

though the findings could have been better couched. He

points out that the second defendant was indeed

employed and had sufficient funds and the Trial Court

was mainly guided by Exhibit D-75 which having regard

to its date (17.08.1982) and the sum involved

Rs.11,330/- and the circumstances which led to it would

be sufficient to rob it of the value which was otherwise

attached to it by the Trial Court.

FINDINGS

1) WHETHER SUIT MUST FAIL ON ACCOUNT OF NON- INCLUSION OF CERTAIN PROPERTIES AND NON-JOINDER?

7. We have already noticed the genealogy of the

parties in the manner, we have referred to above.

Undoubtedly, the grand parent of the parties was one

Shri Marigowda Patil. He had two sons. There is no

dispute regarding this. In the plaint, it is true that

that the plaintiffs have, no doubt, stated that Shri

Marigowda Patil had another son who remained an

agriculturist. It is the further plea of the plaintiffs

11 that Shri Marigowda Patil had a bit of landed property

which was sufficient to eke out his livelihood. He left

the landed property to the other son who remained an

agriculturist. It is the further case and which is not

open to dispute also that Shri R. M. Patil was got

educated and he obtained a Degree of Law and started

practicing and later Shri R. M. Patil became a Public

Prosecutor and he resigned the post and he entered into

politics. He became a successful politician and became

a Cabinet Minister holding various portfolios. These

facts are, in fact, not in dispute. The only point to

be considered under the first head of complaint of the

appellant is about the non-inclusion of the property

of which there is a faint reference in the plaint,

namely, that Shri Marigowda Patil had a bit of landed

property and it was left to the other son. The appellant

would lay store by the deposition given by one of the

witnesses for the plaintiffs, namely, PW-3. He has

indeed stated as follows: -

“4. I do not know the extent and also the Survey Number of the land given by R. M. Patil to his elder brother. The above said land is black soil land and they used to grow cotton, jawar and wheat. I do not know how much income they were getting from the said agricultural property. R. M. Patil

12 informed me about the land given to his brother. I was visiting R.M. Patil frequently as I was residing in Dharwad. Even after, he settled down at Bangalore also I used to visit his house frequently. I visited him for about 20 times when he was in Bangalore. I have not seen the deed of partition entered into between R.M.Patil and his brother.”

8. The appellant, no doubt, in his evidence has

crystallized the extent in somewhat greater detail by

stating that the property involved, which was Joint

Family Property, was about 46 acres of Agricultural

Land.

9. It is not in dispute that the land which is alluded

to is Agricultural Land. It is highly relevant to

notice, however, what the appellant has deposed in this

regard: -

“5. Since 33 years I have been practicing as an Advocate. My Advocate prepared the written statement on my instructions, it is true that in my written statement have claimed that myself is a kartha of family and looking after the plaint schedule property as Kartha of the family. It is true that during the lifetime of my father, my father was looking after the plaint schedule property. It is true that I have not produced any document in respect of the property referred to at para-2 of my affidavit. I am having the documents pertains to the property referred to in my affidavit. I have got

13 RR extracts, Khata extracts of those lands standing in the name of Ninganagowda Patil. There is no difficulty for me to produce the said documents before the Court. There are 12 Sy. Nos. The total extent of said Sy. Nos. is 44 acres. I cannot give the boundaries of the above property. It is true that I have claimed 1/4th share in the plaint schedule properties. I have not sought for any share in the properties mentioned in my affidavit evidence.” (Emphasis supplied)

10. This is the state of the pleading and evidence in

support of the existence of the property other than

what has been scheduled by the plaintiffs and for which

partition is sought. It is true that the law looks with

disfavor upon properties being partitioned partially.

The principle that there cannot be a partial partition

is not an absolute one. It admits of exceptions. In

Mayne’s ‘Treatise on Hindu Law & Usage’ 17th Edition,

Paragraph 487, reads as follows:

“487. Partition suit should embrace all property – Every suit for a partition should ordinarily embrace all joint properties. But this is not an inelastic rule which admits circumstances of a particular case or the interests of justice so require. Such a suit, however, may be confined to a division of property which is available at the time for an actual division and not merely for a division of status. Ordinarily a suit for partial partition does not lie. But, a suit for partial partition will lie when

14 the portion omitted is not in the possession of coparceners and may consequently be deemed not to be really available for partition, as for instance, where part of the family property is in in the possession of a mortgagee or lessee, or is an impartible Zamindari, or held jointly with strangers to the family who have no interest in the family partition. So also, partial partition by suit is allowed where different portions of property lie in different jurisdictions, or are out of British India. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such item does not become legally incompetent of any rule against partial partition.”

11. In the facts of this case having noticed the state

of the pleadings and the evidence, we are of the view

that the interest of justice lies in rejecting the

appellant’s contention. The appellant has not been able

to clearly establish the exact extent or identity of

the property available by way of ancestral property.

Despite claiming to having documents relating to the

properties and admitting to having no difficulty to

produce them, he does not produce them. He is unable

to even give the boundaries. It is obvious that he does

not claim to be in possession of the said properties

even if it be as a co-owner on the basis that it is

15 ancestral property. His evidence discloses that in

reality and on the ground these properties could not

be said to be actually available for the parties to the

present suit to lay claims over them. Properties not

in the possession of co-sharers/coparceners being

omitted cannot result in a suit for the partition of

the properties which are in their possession being

rejected.

12. The case that is set up by the plaintiffs and which is sought to be drawn upon by the appellant is that the

grandfather of the appellant had two sons, including

his father and since there was this extent of property

which is spoken by and since that is not included, it

would be contrary to public interest also to deprive

the other sharer in the joint family, namely, the

brother of the appellant’s father an opportunity to

appear in the suit and establish that the plaint

schedule properties were acquired with the help of

joint family funds in which they also had a share. We

must notice that while it is true, there is no document

produced by which it can be established that there was

a partition by which the properties stood allotted to

the father’s brother of the first appellant. The case

16 which has been set up apparently is more of the nature

of an arrangement between the parties by which the

appellant’s grandfather allotted the property to his

other son (appellant’s uncle). DW3, who is the 2nd

defendant, speaks of a relinquishment by his father.

13. There is the uneducated brother of appellant’s father who was into agriculture who was given the

property in question and the appellant’s father went

on to become a successful advocate and pursued with

success also a career in politics. It may have so

happened that the said property which is targeted by

the appellant may be property in which Sh. R.M. Patil

has abandoned his rights. We would not wish to go

further into this matter, noticing the aspect of the

matter already discussed. Therefore, this appears to

be a case where finally before the Court, there is

dearth of material to establish both the extent and the

identity of the so-called joint family property which

is not included in the plaint. Interestingly, the other

branch has not come forward with any complaint despite

the fact that this is a litigation of the year which

commenced in the year 2003. No doubt, they have not

been made parties and we need not make any observation

17 in this regard. If the finding that the plaint schedule

properties are the separate properties of R.M. Patil

is invulnerable that would conclusively rule out the

need to implead the appellant’s uncle or his successor

in interest. Suffice it to say in the facts of this

case, we do not think that the appellant should be

permitted to persuade us to non-suit the plaintiffs on

this ground.

14. Yet another aspect which we cannot overlook is

that the plaintiffs have proceeded to institute the

suit on a particular cause of action. As pointed out

by Mr. S. N. Bhat, learned senior counsel, the

appellant could not have brought the present suit till

the year, 1977 when Sh. R. M. Patil was alive. This is

for the reason that the cause of action for the present

suit is based on the rights of the plaintiff to the

separate and self acquired properties of Sh. R. M.

Patil. The parties do not have any birth right in the

said properties and they could not have brought a suit

based on such a right. The cause of action arose

therefore only upon his death and on the basis of

intestate succession plaintiffs have brought the

present suit. A suit for partition in regard to

18 ancestral property/joint family property on the other

hand would be premised on birth right.

15. In this regard we may notice two aspects. Order

II Rule 3 of the Code of Civil Procedure, 1908 reads

as follows:

“3. JOINDER OF CAUSES OF ACTION. -

(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.”

16. Order I Rule 3 speaks about the persons who may

be made parties. Interpreting these rules, this Court

in Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar

Behera and Another 1 held inter alia as follows:

“14. These two provisions, namely, Order 1 Rule 3 and Order 2 Rule 3 if read together indicate that the question of joinder of parties also involves the joinder of causes of action. The simple

1 AIR 1999 SC 1341

19 principle is that a person is made a party in a suit because there is a cause of action against him and when causes of action are joined, the parties are also joined.”

On the cause of action in this case, there is no

warrant to complain against the non-impleadment of the

appellant’s uncle or his successors in interest. We may

also point out that Order II Rule 3 does not compel a

plaintiff to join two or more causes of action in a

single suit. The failure to join together all claims

arising from a cause of action will be visited with

consequences proclaimed in Order II Rule 2. Order II

Rule 3 permits the plaintiff to join together different

causes of action. No doubt it is a different matter

that if there is a misjoinder of causes of action, the

power of the court as also the right of the parties to

object are to be dealt with in accordance with law

which is well settled.

17. The Code of Civil Procedure indeed permits a plaintiff to join causes of action but it does not

compel a plaintiff to do so. The consequences of not

joining all claims arising from a cause of action may

be fatal to a plaintiff and we are not in this case to

predicate for what would happen in a future litigation.

20 That would at any rate not advance the case of the

appellant. Hence for all these reasons, we are of the

view that contention of the appellant, must fail.

18. We have no quarrel with the proposition that the non-joining of necessary parties is fatal but in the

facts of this case, on the cause of action which is

projected in the plaint and the schedule of properties

which has been made by the plaintiffs, we would not

think that the non-joinder of the uncle of the

appellant or his legal representatives would imperil

the suit filed by the plaintiffs.

2. WHETHER PLAINT SCHEDULE PROPERTIES ARE SEPARATE PROPERTIES OF SHRI. R.M. PATIL?

19. The next question is whether the plaint schedule properties must be found to be the self acquired and

separate properties of Shri R. M. Patil. In this

regard, we must notice the pleadings first in the

plaint. It is stated, inter alia, in paragraph 4 as

follows:-

“4. The Suit Schedule properties at item no.1 house property at Dharwar, item no.2 a site situated at Dharwar, item No.3 a house property consisting of ground and first floor situated at Palace Orchards

21 at Bangalore, Item No.4, the fiat car and item No.5 the library worth rs.1 Lakh, were acquired by him (herein after referred to as “Suit Schedule Properties” for brevity). They are self acquired properties, originally belonged to Late R.M. Patil S/o Marigowda.”

The answer to this pleading is found in paragraph

6 of the appellant’s Written Statement, which reads as

follows: -

“6. This defendant submits that the allegations made in paragraphs 2 to 8 of the plaint is admitted.”

20. Thus, the specific allegation that the plaint schedule properties were self-acquired properties of

R.M. Patil, was not only not denied but it is admitted

expressly. If that were not enough the defendant when

it came to adducing evidence has fortified the

plaintiffs in their case that the plaint schedule

properties were separate properties and he deposed as

follows: -

“6. It is true that Ninganagowda and his children are not concerned to the suit schedule property. It is true that suit schedule properties are the self acquired properties of R. M. Patil. The title deeds in respect of the suit schedule properties stand in the name of R.M.Patil. It is true that after the demise of my father, I gave an affidavit before the revenue authorities seeking

22 chance of entries in the name of myself, my brothers, my mother and my sisters. It is true that the document which I am seeking now is the certified copy of the letter addresses by me to the Revenue Officer, Dharwad. The same is marked as Ex. P45. It is true that suit schedule Item No. 3 was allotted to my father by the CITB and my father paid the sale price towards the same. It is true that by obtaining loan my father constructed the house in the above said property. It is not true to suggest that my father discharged the above said debt out of joint earnings. We discharged the said debt in the year 1975…”

The learned counsel for the appellant made an

attempt to persuade us to hold that the sentence that

the properties were the self-acquired properties of

his father may be viewed in context and isolated piece

of deposition should not overwhelm a large body of

deposition which exists otherwise. His deposition that

Ningengowda and his children are not concerned to the

suit property is fatal to the appellant case that their

absence in the party array is fatal to the plaintiffs

claim. It further establishes beyond doubt that the

next sentence is an admission which cannot be said to

be a mistake or capable of being explained away. We

would not think that we should permit the appellant to

do that. This is for the reason that the appellant had

23 clearly admitted that the plaint schedule properties

were the self-acquired properties which belonged to

Sh. R.M. Patil. The appellant, admittedly, is an

Advocate.

OUSTER

21. The next contention raised is one of ouster. In P. Lakshmi Reddy v. L. Lakshmi Reddy2, it is held inter

alia as follows: -

“4. Now, the ordinary classical requirement of 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 co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. 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 co-heir 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 of the

2 AIR 1957 SC 314

24 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 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. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v.

Jeevarathnammal, AIR 1919 PC 44 at p. 47 (D) quotes, apparently with approval a passage from Culley v. Deod Taylerson, (1840) 3 P & D 539; 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster “if other circumstances concur”. (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F) It may be further mentioned that it is well-settled that the burden of making out ouster is one the person claiming to displace the lawful title of a co-heir by his adverse possession.”

22. In regard to ouster, we may also notice the following decision of this Court.

25

23. In Md. Mohammad Ali (dead) by lrs. v. Jagadish Kalita and Others3 the court inter alia held as

follows:

“31. In Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] this Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28)

“27. … It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case [P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314] which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen [(1990) 1 SCC 345].

28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They 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

3 (2004) 1 SCC 271

26 of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

32. Yet again in Darshan Singh v. Gujjar Singh [(2002) 2 SCC 62] it is stated: (SCC pp. 65-66, para 7)

“It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-

sharers.”

It has further been observed that: (SCC p. 66, para 9)

“9. In our view, the correct legal position is that possession of a property belonging to several co-

sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-

sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.”

24. The possession of a co-owner however long it may be, hardly by itself, will constitute ouster. In the

27 case of a co-owner, it is presumed that he possesses

the property on behalf of the entire body of co-owners.

Even non-participation of rent and profits by itself

need not amount to ouster. The proof of the ingredients

of adverse possession are undoubtedly indispensable

even in a plea of ouster. However, there is the

additional requirement in the case of ouster that the

elements of adverse possession must be shown to have

been made known to the co-owner. This is apparently

for the reason that the possession of a co-owner is

treated as possession of other co-owners. While it may

be true that it may not be necessary to actually drive

out the co-owner from the property as noticed in Mohd.

Zainulabudeen (since deceased) by lrs. v. Sayed Ahmed

Mohideen and Others4, mere continuance in the

possession of a co-owner does not suffice to set up a

plea of ouster. The possession of the co-owner will

also be referable to lawful title. The possession of

the appellant even of the ground floor of the building

on the land in question, was entirely in accord with

his right as a co-owner.

4 (1990) 1 SCC 345

28

25. It is in this regard we may first notice the very nature of the plea taken by the appellant. It reads as

follows: -

“10. It is submitted that the plaintiff No. 1 wrote a letter dated 20.06.1991 demanding partition of the suit schedule properties. This defendant replied on 29th June 1991 denying her claim in un- ambiguous terms. Thereafter the plaintiff No. 1 kept quite till the filing of the present suit. Thereafter it is submitted that the plaintiff No. 1 is ousted from the joint-family and she has no right to demand the partition by bringing the present suit. It is submitted that being the position the plaintiff No. 1 is not in joint possession as alleged in the plaint. Therefore, the plaintiff No. 1 has to pay court fee under section 35(1) of the K.C.F. & S.V. Act, 1958. Similarly, the plaintiff No. 2 not being a member of the joint family she also has to pay the court fee under Section 35(1) of the K.C.F. & S.V. Act, 1958.”

26. Therefore, the appellant has taken up the plea curiously that in view of the correspondence between

the first plaintiff and the appellant and the delay

with which the suit was filed, the first plaintiff had

no right to demand the partition. This stand is further

fortified by the prayer in the written statement that

the appellant may be allotted 1/4th share which means

appellant intended to exclude by the plea of ouster

29 only the first plaintiff.

We are afraid that a plea by which a co-owner

seeks to only partially oust one co-owner as such

does not commend itself to us. As pointed out by

Mr. S. N. Bhat, learned senior counsel for the

appellant the other co-owners do not dispute the

title of the first plaintiff. The appellant

curiously does set up exclusive title in himself as

he is claiming 1/4th share thereby admitting the

title of the other four siblings. The inconsistency

and the dichotomy undermines the case of ouster as

one of the body of co-owners cannot oust another

whose title is not disputed by others and, what is

more, their title is admitted by the co-owner, who

sets up a plea of ouster. In such circumstances, we

do not think that even the plea is one which is

tenable in law. That apart what is actually relied

on is a letter which is the reply of the appellant

to the letter sent by the Ist plaintiff. A letter

dated 20.06.1991 is written by the first plaintiff

to the appellant and the reply which is the sheet

anchor of the appellant’s case is dated 20.06.1991.

The latter letter, inter alia, reads as follows: -

30

“4. It is indeed the height of your (if I may say so your husband’s) imagination to suddenly wake up to say that you entitled to a share in the joint family properties. As your are very well aware, the three properties referred to in your notice all along formed part of the H.U.F. properties of our father and his elder brother Sri N.M. Patil. You are very well aware of the nucleus for all the acquisitions of the property was the H.U.F. lands measuring 44 acres situated in vasan village in Nargud Taluk of Dharwar District. Though members of the family late acquired properties in their own names, our late father and uncle all along treated the properties as family properties. There has been no severance of the H.U.F. status at any time. Even during the lifetime of our late father at no point of time did he chose to see severance and all along treated the three properties as part of the H.U.F. properties. You are very well aware of this factual position.

5. As you are aware, the family has spent large amounts to settle you in life and more particularly for your marriage and gifted you with jewels and other articles during the marriage to the best of the family’s abilities. Yet, in 1972 you, as was your want, demanded from our father, a car for your husband who was then only a Munsiff and yet had adopted ways of aristocracy which he could ill afford and our late father at great strain to himself gifted you with a Flat Car.

Again, soon after our father’s death in 1977, you had the heart and face to demand a partition even when the family was still in mourning and our mother to satiate your greed again gave you her jewels to the exclusion of your only other sister Smt. Kasha, who is happily settled now in the

31 United Stated. The demand for your so-

called share which you had raised, through you are not entitled to the same, in the interest of peace, you were given all the jewels of our mother. As you are aware none of the brothers raised any objections to the same at any time and your agreed to accept the jewels in full and final settlement and not to repeat any further claims. It is strange that 14 years after our father’s death you not chose to unsettled your settled claim.

7. Hence, there is no question of your being entitled to any partition. You are not entitled to any share in the properties as claimed. At any rate, you have been expressly excluded after the death of our father by the gift of mother’s jewels to you in satisfaction of your claims, though not sustainable.”

27. The very essence of adverse possession and

therefore ouster lies in a party setting up a hostile

title in himself. The possession of a co-owner is

ordinarily on his behalf and also on behalf of the

entire body of the co-owners. In the case of an ouster,

the co-owner must indeed have the hostile animus. He

must assert a title which is not referable to lawful

title. Though the learned counsel for the appellant

points out that this possession started prior to 1977

in that the appellant was residing with his father in

item No.3 house from somewhere in the early seventies

and he continued to reside after his father’s death in

32 the year 1977, when Shri R.M. Patil died in the year

1977, his possession in 1977, was clearly referable to

lawful title as a co-owner entitled to inherit under

Section 8 of the Hindu Succession Act, 1956.

Obviously, he cannot be permitted to set up adverse

possession or ouster in the year 1977. As far as the

letter which is addressed in 1991 and reply to the

letter and suit being beyond 12 years from the date of

his reply, again we are of the view that he cannot be

permitted to succeed for more reasons than one. In the

first place, we have already noticed that this is a

case where he is setting up ouster qua only one of the

co-owners. Secondly, as it turns out contrary to the

submission of the appellant, Mr. S. N. Bhat, learned

senior counsel for the respondents points out the

appellant was not in exclusive possession of the entire

property. The appellant was in possession as even found

by the Trial Court only of the Ground Floor. The second

plaintiff is found to be in possession of the First

Floor and what is more a decree stands granted by the

Trial Court in her favour. In fact, even the perusal

of the letter relied upon by him in the year 1991 which

we have referred to, does not as such reflect the

33 assertion of the hostile title different from that of

a co-owner. In substance, what is sought to be stated

is that the first plaintiff who is his sister had been

given property including jewellery and therefore she

does not have a right. He does not proclaim himself to

be the absolute owner of the property in his own right.

28. We may additionally notice that the Trial Court has also framed an additional issue No.2, on ‘partial

ouster’ as it were and answered the issue against the

appellant. Therefore, this is a case where the

appellant has against him concurrent findings of two

Courts and in this appeal which is generated by special

leave, we are not released from the trammels of Article

136 in the matter of overturning such findings and we

cannot certainly classify the findings in this regard

in the totality of facts to be such a finding that

warrants it being upset.

EXCLUSION OF ITEMS 2 AND 3 SCHEDULED IN WRITTEN STATEMENT. ARE THEY SEPARATE PROPERTIES OF THE SECOND DEFENDANT?

29. The next question which is raised relates to the non-inclusion of the properties standing in the name

34 of second defendant that is item Nos.2 and 3 in the

schedule to the written statement of the appellant. As

far as this contention is concerned, again we do not

think that there is merit in the case of the appellant.

Admittedly, the second defendant was educated and

became an Engineer. He was employed. What really has

weighed with the Trial Court is the fact that in view

of departure from his obligations under a bond, a suit

was filed and decreed against the second defendant who

discharged his liability under D-75 dated 17.08.1982

in a sum of Rs.11,330/-. We must notice that item No.2

scheduled in the written statement was purchased in

the year 1976. The property consists of a plot and it

was allotted to the second defendant for a total sum

of Rs.9,800/- in the year 1976. D-75 is in the year

1982. Defendant No.2 has given evidence about the fact

that the amounts have been paid by him from his own

resources by virtue of his employment in India. It is

not as if amount was paid in lumpsum. As regards item

No.3 in the written statement, it is a flat purchased

in the year 1998. This is much after D-75 which is

dated 17.08.1982. The 2nd defendant has deposed of

working abroad. The 2nd defendant has spoken about item

35 No.3 being purchased for a sum of Rs.16 lakhs. Having

regard to his qualifications, we do not think that the

appellant can fault the reversal of the finding though

it may be true that the High Court has not dealt with

it in a more elaborate manner. In this regard, we may

notice that the Trial Court has proceeded on the basis

that since Sh. R.M. Patil was earning as a successful

lawyer and he became a successful Politician as well,

the second defendant being a coparcener, item 2 and 3

should also be included. Even proceeding on the basis

that there was a joint family consisting of Sh. R. M.

Patil and his sons, it is not the law that a co-owner

cannot acquire his own independent or separate

properties. In such circumstances, we find there is no

merit in this argument as well.

IS THE IMPUGNED JUDGMENT INEQUITABLE?

30. Coming to the equity of the matters, the complaint of the appellant is that the appellant is a Senior

Citizen and aged about 80 years and while the other

siblings have their own properties and only the

appellant would be most adversely affected and he will

be on the streets. We must notice that the appeals are

36 only maintained against the preliminary decree by

which shares have been declared. Therefore, we do not

see any reason for us to go into the question about

the allotment of properties which is a matter to be

gone into in the final decree proceedings. As to what

is to be actual division of the properties, it is for

the appellant to raise such contentions as are

available in this regard.

31. Therefore, we see no merit in the appeals. The appeals will stand dismissed. Parties are left to bear

their respective costs.

32. Pending application(s), if any, stands disposed of.

……………………………………………………J. [K.M. JOSEPH]

……………………………………………………J. [HRISHIKESH ROY]

New Delhi;

February 09, 2022.

37