& Ors Vs. Bhagat Ram (Dead) by Lrs. & Ors  Insc 160 (20 February 2007)
S.B. Sinha & Markandey Katju
S.B. Sinha, J.
The defendants are the appellants. The parties were co-owners. The suit
properties are situate in two villages; 232 bighas and 10 biswas in village
Samleu and 76 bighas in village Punjoh.
It is not in dispute that whereas the plaintiffs - respondents had all along
been in possession of the property situate in village Samleu, the appellants
are in possession of village Punjoh. Allegedly, in the revenue settlement
record of rights prepared in the year 1953, joint ownership of lands situate in
village Samleu was recorded. However, it was observed therein that if the
predecessors of the appellants "do not give share" to the plaintiff respondent
in the land in village Punjoh, the plaintiff-respondent may ask for the review
of the order.
On the plea that the land situate in village Punjoh was jointly recorded, it
was urged that the entry in the said record of rights attained finality.
Indisputably, however, the appellants had filed two suits; one in the year
1968 and another in 1978. In the aforementioned suits, a prayer for partition
and separate possession was claimed by the appellants herein in respect of
2/3rd share in the entire land situate in village Samleu.
Admittedly, the 1968 suit was dismissed in 1977 and the 1978 suit was
dismissed in 1984.
Plaintiff respondent continued to possess the properties situate at village
Plaintiff respondent filed a suit in the year 1986 for declaration of his
title as also permanent injunction.
In paragraph 8 of the plaint, the plea of adverse possession was raised,
which reads as under :
"The plaintiff has been in possession as owner in adverse possession on
the land of the defendant No. 1 to 12, area 155 Bigha 0 Biswa of the land for
Hence it is appropriate to declare the possession and ownership by way of
adverse possession of the plaintiff on the land in disputed land and the
defendant Nos. 1 to 22 are intending to alienate the land on the basis of mere
entry in the papers. Therefore, it is proper to restrain the defendant Nos. 1
to 22 from selling, leasing out and transferring the land by any means."
The Trial Court in view of the pleadings of the parties framed the following
"Whether the plaintiff has become owner of the suit property by
adverse possession as alleged?
Whether the defendants are in joint
possession of the suit property as co-sharers? 3. Relief."
By reason of a judgment and decree dated 9.10.1987, the learned Trial Judge
opined that the plaintiff had been in exclusive continuous peaceful possession
of the suit land to the exclusion of the other co-owners prior to settlement
which took place in the year 1953.
Analysing the evidences brought on records, the learned Trial Judge opined:
"As per statements PW-1 Bhagat Ram plaintiff and Hishiara and others
during settlement in the year 1953, as per copies of Tankih No. 4 Ex. P-4, No.
10 Ex. P-16 and No. 11 Ex. P-15, it is evident that present plaintiff Bhagat
Ram had asserted his hostile possession and ousters of other co-owners even
during settlement in the year 1953 and as per the copy of plaint Ex. P-1 in
civil suit No.
42/74 instituted by Hushiara and others, Bhagat Ram had denied the title of
other co-owners on which suit for joint possession against present plaintiff
Bhagat Ram was filed on 2-3-1968 for joint possession. Bhagat Ram has denied
the title of other co-owners during May, 1967 which led other co-owner to file
suits for joint possession against present plaintiff Bhagat Ram which were
admittedly dismissed as abatted on 24-12-1977 Ex. P-11 and 11-01-1984 Ex. P-12.
It is thus evident that Bhagat Ram had been making open assertion of his
hostile title coupled with exclusive possession and enjoyment to the knowledge
of other co-owners which is essential for adverse possession against co-owners
was held in Krishan and others, Appellants vs. Krishanoo and others Respondents
AIR 1985 H.P. 103"
It had been categorically held that assertion of exclusive possession by the
plaintiff was clear and explicit and the defendants appellants had actual
The First Appellate Court dismissed the appeal preferred by the appellants
herein affirming the said view holding that 'no arrangement was arrived at
between the co-sharers' to the effect that the respondents would be cultivating
the land on behalf of other co-sharers stating:
"Be it noticed that no such arrangement was shown to have been ever
agreed by the parties nor the contesting defendants have pleaded any such
arrangement in the written statement. The arrangement contemplated in Tankih
[Ex. P-2] with regard to denial of share of Bhagat Ram in the joint land of
village Panjoh, was a reason for Bhagat Ram to claim an exclusive title in the
disputed land situate at village Samleu and the offer itself was not a part of
any mutual arrangement. Since the contesting defendants did not allow Bhagat
Ram to have a share in the joint land of Panjoh, Bhagat Ram staked his claim of
exclusive ownership in the disputed land situated at Samleu Pargna Chuhan and
did not allow the contesting defendants to have any share in the disputed land
of Samleu for that reason. This was a clear and open denial of the title of the
contesting defendants in the disputed land, may be for the reason that the
contesting defendants had not allowed the plaintiff to have a share in the
joint land of village Panjoh. So, it is not correct that the plaintiff was in
possession of the disputed land under some mutual arrangement."
It was further held that repudiation of title of the defendant by the
plaintiff was open and hostile.
In the Second Appeal preferred by the appellants, the High Court while
determining the same, opined:
"In the present case, the plaintiff has specifically pleaded that he is
in continuous possession of the land in dispute in open and unequivocal denial
of title of defendants No.
1 to 22-A, since prior to 1952-53. As stated above, the longstanding revenue
entries since 1952-53 record the plaintiff to be in exclusive possession of the
land in dispute.
Ex. P.1 is the copy of the plaint of the suit instituted by some of the
defendants in the year 1968, against the present plaintiff. This plaint is
dated 29.2.1968. By virtue of this suit, the plaintiffs therein, who are the
defendants in the present case, had prayed for joint possession of the land,
which is the subject matter of this suit. In para 3 of this plaint, it has been
averred that the plaintiff in the present case, was in exclusive possession of
the land in dispute and that he was asserting and claiming himself to be the
sole owner thereof."
Referring to the two suits filed by the appellants herein, the High Court
"Therefore, on the basis of the material coming on the record,
especially in the form of Ex. P-1, Ex. DW 2/A, Ex. P-11 and Ex. P-12, it is
established that the plaintiff is coming in adverse possession of the land in
dispute in complete denial of the title of the defendants No. 1 to 22- A and to
their knowledge at least since 1968. The suit out of which the present appeal
has arisen was filed on 20.8.1986, that is, after about 18 years from the date
of denial of title of defendants 1 to 22-A by the plaintiff.
The adverse possession as on the date of suit having continued for more than
the statutory period of twelve years has, thus, ripened into ownership."
Mr. R.K. Dash, learned senior counsel appearing on behalf of the appellants,
would submit that the parties hereto being co-sharers, it was obligatory on the
part of the plaintiff to plead and prove ouster. According to the learned
counsel, the learned Trial Judge as also the Appellate Courts committed a
manifest error in arriving at the conclusion that the plaintiff perfected his
title by adverse possession.
Mr. E.C. Agrawala, learned counsel appearing on behalf of the respondents,
on the other hand, supported the impugned judgments.
We have noticed hereinbefore the factual aspects of the matter which are
neither denied nor disputed. Admittedly, the plaintiff respondent had remained
in possession for a long time i.e. since 1953.
It may be true that in his plaint, the plaintiff did not specifically plead
ouster but muffosil pleadings, as is well known, must be construed liberally.
Pleadings must be construed as a whole.
In Devasahayam (D) by LRs. v. P. Savithramma and Ors. [(2005) 7 SCC 653],
this Court opined:
"The pleadings as are well-known must be construed reasonably. The
contention of the parties in their pleadings must be culled out from reading
the same as a whole. Different considerations on construction of pleadings may
arise between pleadings in the mofussil court and pleadings in the Original
Side of the High Court."
Only because the parties did not use the terminology which they should have,
ipso facto, would not mean that the ingredients for satisfying the requirements
of statute are absent. There cannot be any doubt whatsoever that having regard
to the changes brought about by Articles 64 and 65 of the Limitation Act,
1963 vis-`-vis Articles 142 and 144 of the Limitation Act, 1908, the onus
to prove adverse possession would be on the person who raises such a plea. It
is also furthermore not in dispute that the possession of a co-sharer is
presumed to be possession of the other co- sharers unless contrary is proved.
A plea of adverse possession or a plea of ouster would indisputably be
governed by Articles 64 and 65 of the Limitation Act.
In a case of this nature, where long and continuous possession of the
plaintiff-respondent stands admitted, the only question which arose for
consideration by the courts below was as to whether the plaintiff had been in
possession of the properties in hostile declaration of his title vis-`-vis his
co- owners and they were in know thereof.
Mere assertion of title by itself may not be sufficient unless the plaintiff
proves animus possidendi. But the intention on the part of the plaintiff to
possess the properties in suit exclusively and not for and on behalf of other
co-owners also is evident from the fact that the defendants appellants
themselves had earlier filed two suits. Such suits were filed for partition. In
those suits the defendants appellants claimed themselves to be co-owners of
the plaintiff. A bare perusal of the judgments of the courts below clearly
demonstrates that the plaintiff had even therein asserted hostile title
claiming ownership in himself. The claim of hostile title by the plaintiff over
the suit land, therefore, was, thus, known to the appellants.
They allowed the first suit to be dismissed in the year 1977. Another suit
was filed in the year 1978 which again was dismissed in the year 1984. It may
be true, as has been contended on behalf of the appellants before the courts
below, that a co-owner can bring about successive suits for partition as the
cause of action therefor would be continuous one. But, it is equally
well-settled that pendency of a suit does not stop running of 'limitation'.
The very fact that the defendants despite the purported entry made in the
revenue settlement record of rights in the year 1953 allowed the plaintiff to
possess the same exclusively and had not succeeded in their attempt to possess
the properties in Village Samleu and/or otherwise enjoy the usufruct thereof,
clearly go to show that even prior to institution of the said suit the
plaintiff-respondent had been in hostile possession thereof.
Express denial of title was made by the plaintiff-respondent in the said
suit in his written statements. The courts, therefore, in the suits filed by
the defendants appellants, were required to determine the issue as to whether
the plaintiff- respondent had successfully ousted the defendants appellants so
as to claim title himself by ouster of his co-owners.
In any event the plaintiff made his hostile declaration claiming title for
the property at least in his written statement in the suit filed in the year
1968. Thus, at least from 1968 onwards, the plaintiff continued to exclusively
possess the suit land with knowledge of the defendants appellants.
The parties went to trial fully knowing their respective cases. The fact
that they had been co-owners was not an issue. The parties proceeded to adduce
evidences in support of their respective cases. Defendants Appellants, keeping
in view of the fact that they have unsuccessfully been filing suit for
partition, were also not prejudiced by reason of purported wrong framing of
issue. They knew that their plea for joint possession had been denied. They
were, therefore, not misled. They were not prevented from adducing evidence in
support of their plea.
Article 65 of the Limitation Act,
1963, therefore, would in a case of this nature have its role to play, if
not from 1953, but at least from 1968. If that be so, the finding of the High
Court that the respondent perfected his title by adverse possession and ouster
cannot be said to be vitiated in law.
Mr. Das has relied upon a decision of this Court in Saroop Singh v.
Banto and Others [(2005) 8 SCC 330], in which one of us was a member.
There is no dispute in regard to the proposition of law laid down therein
that it was for the plaintiff to prove acquisition of title by adverse possession.
We are also not oblivious of a recent decision of this Court in Govindammal
v. R. Perumal Chettiar & Ors. [2006 (11) SCALE 452] wherein it was held:
"In order to oust by way of adverse possession, one has to lead
definite evidence to show that to the hostile interest of the party that a
person is holding possession and how that can be proved will depend on facts of
Yet again in T. Anjanappa and Others v. Somalingappa and Another [(2006) 7
SCC 570], it was held:
"The concept of adverse possession contemplates a hostile
possession i.e. a possession which is expressly or impliedly in denial of the
title of the true owner.
Possession to be adverse must be possession by a person who does not
acknowledge the other's rights but denies them. The principle of law is firmly
established that a person who bases his title on adverse possession must show
by clear and unequivocal evidence that his possession was hostile to the real
owner and amounted to denial of his title to the property claimed. For deciding
whether the alleged acts of a person constituted adverse possession, the animus
of the person doing those acts is the most crucial factor. Adverse possession
is commenced in wrong and is aimed against right. A person is said to hold the
property adversely to the real owner when that person in denial of the owner's
right excluded him from the enjoyment of his property."
In this case, however, a finding of fact has been arrived at by all the
three courts. They have analysed the evidences on record. They have taken into
consideration the correct legal position operating in the field as also conduct
of the parties. They, in our opinion, applied the correct principles of law as
regards 'burden of proof'.
We, having regard to the peculiar fact obtaining in the case, are of the
opinion that the plaintiff- respondent had established that he acquired title
by ousting the defendants appellants by declaring hostile title in himself
which was to the knowledge of his co-sharers.
We, therefore, find no infirmity in the impugned judgment. The appeal is
allowed. In the facts and circumstances of the case, there shall, however, be
no order as to costs.