Mohammad Ali Vs. Sri Jagadish Kalita & Ors  Insc 490 (7 October 2003)
Bhan & S.B. Sinha.S.B. Sinha, J :
appeal is directed against a judgment and decree dated 20.5.1991 passed by Gauhati
High Court dismissing the Second Appeal preferred by the appellant herein.
Sheikh was the original owner of the suit premises.
transferred the same to Gayaram Kalita and Kashiram Kalita. The premises in
suit, thus, owned and possessed by the said Gayaram Kalita and Kashiram Kalita,
who were brothers. By reason of a registered deed of partition dated 1.12.1938,
the structures standing on the land in suit being holding Nos.522 and 523 of
the Nalbari Municipality were divided into half and half, each measuring 5 = lechas.
Prafulla Kalita, son of Gayaram Kalita, allegedly, amalgamated both the said
holdings and got them registered in his name as holding No. 121 in the records
of Nalbari Municipality. Holding No. 522 was sold and portion of holding No. 523
was leased out in favour of the respondent No. 3 by Prafulla Kalita.
the death of Md. Sadagar Sheikh, however, his sons got the lands mutated in
their favour in mutation case No. 414/70-71 in terms of an order of the Sub
Divisional Officer of the Nalbari Municipality.
of a registered deed of sale dated 28.11.1972, the defendants Nos. 7, 8 & 9
transferred their possessory rights in holding No. 523 including the house to
the appellant for valuable consideration.
about 24.9.1977, the legal representatives of Md. Sadagar Sheikh, being
defendant Nos. 10, 11 & 12 transferred their right, title and interest in
old holding No. 523 to the appellant herein on receipt of the consideration of
a sum of Rs. 5000/-. Upon purchase of the suit premises in the manner aforementioned,
the appellant herein called upon the respondent No. 3 to pay rent to him which
the name of the plaintiff was initially mutated in Nalbari Municipality, the same was cancelled by an order dated 26.9.1977. The taxes
deposited by the plaintiff were directed to be refunded. As the respondent No.
3 did not pay rent to the appellant, he filed a money suit for recovery of
arrears of rent being No. 83 of 1978 in the Court of Munsif which was
dismissed. An appeal preferred thereagainst by the appellant was also
dismissed. In view of the fact that the name of the appellant was not
ultimately mutated in the records of the Municipality as also in view of
dismissal of the said money suit, the suit was filed wherein the appellant
prayed for the following reliefs :
For a decree for declaration of right, title and interest of plaintiff over the
suit land and the house standing thereon.
decree may also be passed against the defendant No. 4 for ejectment from the
suit house by removing its goods and articles therefrom and also a decree for mesne
profit of Rs. 4350.00 against defendant No. 4.
A decree for issuing precept to the Nalbari Municipal Board for mutating the
name of the plaintiff on holding No. 121 (kha) the suit house.
The cost of the suit may be decreed against the contesting defendants.
Any other relief to which the plaintiff is entitled to may also be
said suit, there were three sets of defendants. The first set being defendants
No. 1, 2, 3, 5 & 6 were the legal heirs and representatives of late Prafulla
Kalita. The second set being defendants No. 7, 8 & 9 were the legal heirs
and representatives of late Kashi Ram Kalita and the third set being defendants
No. 10, 11 & 12 were the legal heirs and representatives of late Md. Sadagar
Sheikh. The defendant No. 4 (Respondent no.3 herein) was a cooperative society
which was inducted as a tenant by Prafulla Kalita. In the said suit the
contesting respondents herein inter alia raised a plea of adverse possession alleging
right of adverse possession had accrued upon the predecessor-interest, and these
defendant, as these defendants and their predecessor interest, had their
peaceful and uninterrupted possession for more than 40 years, adversely to the
interest of defendant No. 10, 11, 12 and their predecessor interest." They
further set up a plea that the suit house was not actually partitioned by metes
and bounds by and between the Kalita brothers nor separate physical possession thereof
was effected and in fact Kashiram Kalita and Gayaram Kalita orally gifted the
said plot to Prafulla Kalita and since then he had been in exclusive and
peaceful possession thereof as owner.
learned Trial Court in view of the rival contentions aforesaid, inter alia,
framed the following issues:
Whether the plaintiff has right, title and interest over the suit land as well
as the house thereon?
Whether there exists a relationship of landlord and tenant in between the
plaintiff and the defendant No. 4. If so, whether the plaintiff is entitled to
the rent legally due by the defendant No. 4?
Whether the suit land together with the house was originally gifted by late Gaya
Ram and Kashi Ram to late Prafulla Kalita as alleged in the W.S.?"
Trial Court decreed the said suit whereagainst Jagdish Kalita, Dipak Kalita and
the Secretary of the Cooperative Society preferred appeal in the Court of
District Judge, Nalbari which was marked as T.A.No. 69 of 1986. The first appeallate
Court upon consideration of the materials on record held that the appellants
therein could not prove the factum of oral gift. It was, however, observed:
it may so happen that some sort of mutual arrangement took place as Gaya Ram
and Kashi Ram left Nalbari for Lumding in quest of their fortune." The
first Appellate Court furthermore held that the burden lay heavily on the
plaintiff to prove his title and possession within 12 years since before the
date of filing of the suit. The learned Court of first appeal invoked the
principle of 'caveat emptor' and opined:
he purchased the suit holding. Then he inquired about the title and found that
it was recorded in the name of Prafulla. The plaintiff dared to plunge in the
cross currents of legal intricacies. But he could not swim across and then he
sank. The suit is hit by Article 65 of the Limitation Act. Hence all these
three issues are decided against the plaintiff." As regard Issue No. 4 it
was held that the appellant was not entitled to claim any rent from respondent
No. 3 herein.
second appeal filed by the appellant herein the High Court by its judgment and
decree dated 20th May,
1991 dismissed the
learned District Judge having found that Prafulla did not share the rent with prof.
7, 8 and 9 it cannot be said that these defendants were still co-sharers. Mr.T.S.
Deka, learned counsel for the respondents has shown from the records that by
Exhibits 12 and 13 Kashiram paid Municipal taxes only upto the year 1945 and
this is not disputed by Mr.Sarma. There was, therefore, an open ouster by Prafulla
since 1950. The plaintiff brought the suit in 1979. The case relied on by Mr. Sarma
does not apply to the facts of the instant case.
learned District Judge, therefore, was perfectly correct in holding that
plaintiff's suit was barred by Schedule 65 of the Limitation Act."
(Emphasis supplied) The appellant is, thus, before us.
Court by an order dated 16.8.1986 directed the appellant to bring the plaint
and written statement filed by the parties on records so as to enable it to
decide whether plea of adverse possession taken by the respondent is
sustainable. Pursuant thereto and in furtherance thereof the appellants have
filed copies of plaint and the written statement.
learned counsel appearing on behalf of the appellant would submit that the
parties hereto admittedly been co-sharers, the first appellate court as also
the High Court have committed a manifest error in dismissing the suit holding
that the respondents perfected their title by adverse possession, although the
contesting respondents did not raise any plea nor proved ouster of other
Kumar Ghosh, learned counsel appearing on behalf of the respondents, on the
other hand, would support the judgment of the High Court contending that having
regard to the fact that the plaintiff lost in Money suit No. 83 of 1978 in the
Court of Munsif, the question of title could not have been permitted to be reagitated.
The said issue, the learned counsel would contend, was barred under the
principles of res judicata. The learned counsel would submit that having regard
to the fact that the respondent no.1 alone having all along been possessing the
suit premises by payment of rent to the municipal authorities, must be held to
have acquired title by adverse possession.
PRINCIPLES RELATING TO OUSTER AND ADVERSE POSSESSION:
fact of the matter, as noticed hereinbefore, is not much in dispute. If it be
held that the two brothers Gayaram Kalita and Kashiram Kalita partitioned the
properties in question; the heirs and legal representatives of Gayaram Kalita
ceased to have any right, title and interest in respect of the share held by Kashiram
Kalita. The defendants No. 7, 8 & 9 had, therefore, a transferable title,
unless the same became extinguished.
other hand, if no partition by meets and bounds took place, the respondents
herein were bound to plead and prove ouster of the plaintiff and/ or his
predecessors' interest from the land in question. For the said purpose, it was
obligatory on the part of the respondents herein to specifically plead and
prove as to since when their possession became adverse to the other co-sharers.
Moreover, if the possession of Prafulla Kalita was permissive or he obtained the
same pursuant to some sort of arrangement as had been observed by the High
Court, the plea of adverse possession would fail.
and continuous possession by itself, it is trite, would not constitute adverse
possession. Even non-participation in the rent and profits of the land to a
co-sharer does not amount to ouster so as to give title by prescription. A
co-sharer, as is well settled, becomes a constructive trustee of other
co-sharer and the right of the appellant and/or his predecessors in interest would,
thus, be deemed to be protected by the trustee. As noticed hereinbefore, the
respondents in their written statement raised a plea of adverse possession only
against the third set of the defendants. A plea of adverse possession set up by
the respondents, as reproduced hereinbefore, do not meet the requirements of
law also in proving ouster of a co-sharer. But in the event, the heirs and
legal representatives of Gayaram Kalita and Kashiram Kalita partitioned their
properties by meets and bounds, they would cease to be co-sharers in which
event a plea of adverse possession as contra distinguished from the plea of
ouster could be raised. The courts in a given situation may on reading of the
written statement in its entirety come to the conclusion that a proper plea of
adverse possession has been raised if requisite allegations therefor exist. In
the event the plaintiff proves his title, he need not prove that he was in
possession within 12 years from the date of filing of suit. If he fails to
prove his title, the suit fails.
reason of Limitation Act, 1963 the legal position as was obtaining under the
old Act underwent a change. In a suit governed by Art. 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his title and it would
no longer be necessary for him to prove, unlike in a suit governed by Articles
142 and 144 of the Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it would be for the
defendant so to prove if he wants to defeat the plaintiff's claim to establish
his title by adverse possession.
the purpose of proving adverse possession/ ouster the defendant must also prove
in the event, the case of the defendant was that the predecessors in interest
of the plaintiff ceased to be his co-sharers for any reason whatsoever, it was
not necessary for them to raise a plea of ouster. We may further observe that
in a proper case the court may have to construe the entire pleadings so as to
come to a conclusion as to whether the proper plea of adverse possession have
been raised in the written statement or not which can also be gathered from the
cumulative effect of the averments made therein.
herein, as noticed hereinbefore, has failed to raise any plea of ouster. No
finding has been arrived at by the High Court as to from which date they began
to possess adversely against the plaintiff or his predecessors in interest.
Mere non-payment of rents and taxes may be one of the factors for proving
adverse possession but cannot be said to be the sole factor. The High Court has
not assigned any reason as to how there had been an open ouster by Prafulla Kalita
the first appellate court applied a wrong principle of law in relation to
interpretation of Article 65 of the Limitation Act, 1963. The High Court fell
into the same error.
of a property belonging to several co-sharers by one co-sharer, it is trite,
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-sharers
would not amount to ouster unless there is a clear declaration that the title
of the other co-sharers was denied and disputed. No such finding has been
arrived at by the High Court.
instant case, the dispute between the parties as regard mutation of the name of
the appellant was finally decided, as noticed hereinbefore, only on 26.9.1977.
The Money Suit filed by him was also dismissed by the Appellate Court on
19.5.1979. The appellant instituted title suit on 24.10.1979. In that view of
the matter, the question of the respondents acquiring title by ouster of the
appellant on the basis of the order of the Municipal Authorities in the
mutation proceedings does not arise.
as submission of Mr. Ghosh to the effect that the decision in the money suit
shall operate as res judicata is stated to be rejected.
aforementioned suit, the only issue which could be raised and determined was as
to whether respondent No. 3 was a tenant of the plaintiff. As the plaintiff or
his predecessors in interest failed to show that respondent No. 4 was inducted
by them, his claim for arrears of rent was rejected but the Court while
determining the said issue could not have gone into a pure question of title as
well as the question as to whether the respondents herein acquired title by
CASE LAWS ON THE QUESTION OF OUSTER/ADVERSE POSSESSION:
Begum vs. Mohd. Sayeed and Another [(1980) 4 SCC 396], the law has been stated
by this Court in the following terms :
is well settled that mere non- participation in the rent and profits of the
land of a co-sharer does not amount to an ouster so as to give title by adverse
possession to the other co-sharer in possession..." alias Balasaheb Babusaheb
Patil (Dead) by LRs. and Heirs and Others etc.etc. [(1995) 2 SCC 543], this
Where possession can be referred to a lawful title, it will not be considered
to be adverse. The reason being that a person whose possession can be referred
to a lawful title will not be permitted to show that his possession was hostile
to another's title. One who holds possession on behalf of another, does not by
mere denial of that other's title make his possession adverse so as to give
himself the benefit of the statute of limitation. Therefore, a person who
enters into possession having a lawful title, cannot divest another of that title
by pretending that he had no title at all." Others [(1995) 4 SCC 496] this
Court upon referring to a large number of decisions observed:
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
which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen.
'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
of hostile animus,
and uninterrupted possession of the person pleading ouster, and
of right of exclusive ownership openly and to the knowledge of other co-owner.
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." LRs. and Others [(2002) 2 SCC
62], it is stated :
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
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."
OVERLOOKED BY THE HIGH COURT:
proposition of law relating to ouster of a co-sharer vis-`-vis adverse
possession had been overlooked by the High Court. There are also certain other
aspects of the matter which could not be overlooked and probably would require
closer examination by the High Court.
High Court while determining the question should have formulated substantial
questions of law in terms of Section 100 of the Code of Civil Procedure, 1908.
In absence of formulation of such substantial questions of law, probably the
High Court committed the errors as pointed out hereinbefore.
facie the questions of law which arise for consideration are:
Whether the registered deed of partition was acted upon so as to cause
disruption of the joint family?
Whether the amalgamation of holding Nos. 522 and 523 as one holding being holding
no. 121 at the instance of Prafulla Kalita was to the knowledge of the heirs
and legal representatives of Gayaram Kalita or the third set of the defendants
and, if the answer to the aforementioned question is in affirmative, whether Prafulla
Kalita started possessing the entire house standing on the plot in question
being holding No.522 and 523 exclusively pursuant to or in furtherance of the
said order; or such possession was referable only to some adjustment or
permission of the heirs of Gayaram Kalita?
What was nature and extent of right transferred to the appellant by the heirs
of Kashiram Kalita? (Such a question arises as the appellants in their list of
dates stated that only possessory rights were transferred.)
Whether the plaintiff derived any right title and interest in relation to the
suit property by reason of deed of sale executed by the heirs of Md. Sadagar
Md. Sadagar Sheikh had transferred his entire right, title and interest in favour
of two brothers by reason of the aforementioned deed of sale, under what
circumstances the names of defendants No. 10, 11 & 12 were mutated in the
records of Nalbari Municipality in the year 1971.
questions were required to be considered upon by the Trial Court as also the Court
of first Appeal so as to arrive at a correct decision. However, we hasten to
add that we have ourselves not gone into the materials on record and thus have
recorded our tentative opinion on the basis of the judgment of the High Court
and the Court of Appeal. It would, thus, be open to the High Court to consider
the matter on its own merit.
are, therefore, of the opinion that the matter should be considered afresh by
the High Court which may proceed to decide the matter on framing proper substantial
questions of law arising in the second appeal. The judgment of the High Court
is, therefore, set aside.
appeal is allowed. However, in the facts and circumstances of this case, there
shall be no order as to costs.