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Lala Kirpa Ram and anr. Vs. L. Dwarka Prasad and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All518
AppellantLala Kirpa Ram and anr.
RespondentL. Dwarka Prasad and anr.
Excerpt:
..... - with regard to the first point it is conceded that the sale deed of 1908 in favour of mathura prasad by ramchandar did not give a good title to the shop to the transferee as, according to the finding of the court below, on that date, the shop was jointly owned by ramchandar, transferor, and dwarka prasad, the plaintiff. it is however argued that mathura prasad assumed possession of the property as full owner and enjoyed possession of the property openly and continuously till 1925. that being so, as transferee, he could claim ownership by adverse possession against the joint owner dwarka prasad. 6. as stated above, the court below was satisfied on evidence that the defendant kirpa earn and his purchaser mathura prasad were in exclusive possession of the shop transferred by ramchandar..........brought by the plaintiff for closing two doors and one window opened in the northern wall of the shop in possession of the defendants and also for a perpetual injunction restraining the defendants from making any construction on the roof of their shop or from obstructing the plaintiff in using the roof. the suit was contested by the defendants on several grounds which will be noticed later. the courts below have decreed the suit in terms of the reliefs prayed for in the plaint. it appears that one ladli prasad owned two shops adjoining each other. after ladli prasad's death his two sons dwarka prasad plaintiff and his brother bhikumal succeeded to the property. bhikumal died leaving a son ramchandar. ramchandar mortgaged one half share in the two shops to the plaintiff dwarka prasad on.....
Judgment:

Mohammad Ismail, J.

1. This is a defendants' appeal arising out of a suit brought by the plaintiff for closing two doors and one window opened in the northern wall of the shop in possession of the defendants and also for a perpetual injunction restraining the defendants from making any construction on the roof of their shop or from obstructing the plaintiff in using the roof. The suit was contested by the defendants on several grounds which will be noticed later. The Courts below have decreed the suit in terms of the reliefs prayed for in the plaint. It appears that one Ladli Prasad owned two shops adjoining each other. After Ladli Prasad's death his two sons Dwarka Prasad plaintiff and his brother Bhikumal succeeded to the property. Bhikumal died leaving a son Ramchandar. Ramchandar mortgaged one half share in the two shops to the plaintiff Dwarka Prasad on 20th June 1907. On 18th September 1908, Ramchandar sold one of the two shops situated to the north to Mathura Prasad under a sale deed dated 18th September 1908 Part of the sale consideration was left in the hands of the vendee to redeem the mortgage in favour of Dwarka Prasad, plaintiff. The mortgage was to be redeemed in 1913. Mathura Prasad sold this shop to Kirpa Ram, defendant under a sale deed dated 9th July 1925. The Court below upon a consideration of evidence came to the conclusion that there was no partition between Dwarka Prasad and Ramchandar with respect to the two shops. The Court below however held that Kirpa Earn was in exclusive possession of the northern shop since 1925 and before that Mathura Prasad was in exclusive possession of it since 1908. The Court below ultimately confirmed the decree of the trial Court that the defendants had no right to open the window and the doors or to raise any other constructions on the northern shop as it was still jointly owned by the plaintiff and the defendants. The defendants have preferred the present appeal.

2. It has been argued that on the findings of the Court below the suit ought to have been dismissed on two grounds: (1) That the defendants and their predecessor being in exclusive possession of the property for over 12 years had acquired full right in it by adverse possession. (2) Assuming that the claim was not barred, the defendants were entitled to open the window and the doors as these constructions were not in. consistent with the exclusive enjoyment of the property which admittedly was in their possession for a number of years. With regard to the first point it is conceded that the sale deed of 1908 in favour of Mathura Prasad by Ramchandar did not give a good title to the shop to the transferee as, according to the finding of the Court below, on that date, the shop was jointly owned by Ramchandar, transferor, and Dwarka Prasad, the plaintiff. It is however argued that Mathura Prasad assumed possession of the property as full owner and enjoyed possession of the property openly and continuously till 1925. That being so, as transferee, he could claim ownership by adverse possession against the joint owner Dwarka Prasad. Reference has been made to Bhavrao v. Rakhmin (1899) 23 Bom. 137 (FB). In this case it was held:

Where co-parceners have alienated their shares in the joint property by sale and mortgage and the alienees have been in possession for more than 12 years, a claim for partition against such alienees is barred by limitation under Article 144, Limitation Act.

3. At p. 141 Farran C.J. remarked:

Adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom true ownership is vested--whether in a single person or jointly.

4. It is urged that the position of a transferee from a joint owner is similar.

5. In Palaniappa Chetty v. Raman Chetty : AIR1934Mad183 it was held:

To establish adverse possession as between co-sharers there must be evidence of an open assurance of hostile title by one of them to the knowledge of the other. This doctrine however has no application where the property has by alienation passed to a stranger. The alienee in such, a case must show that he took possession of the property. If possession is delivered to the purchaser his position is no doubt adverse to the other co-sharer from the moment of his entry.

6. As stated above, the Court below was satisfied on evidence that the defendant Kirpa Earn and his purchaser Mathura Prasad were in exclusive possession of the shop transferred by Ramchandar since 1908. Mathura Prasad redeemed the mortgage in favour of the plaintiff himself by virtue of the sale deed executed by Ramchandar with respect to the northern shop. In the sale deed of 1908 it was clearly stated that by a private partition the northern shop was allotted to the share of the transferor, namely Ramchandar, and that Ramchandar had full right to transfer it to Mathura Prasad. In view of the finding of the Courts below, it must be held that the statement in the sale deed with regard to private partition is incorrect. But the transferee by virtue of the sale deed enjoyed proprietary possession of the property from 1908 onwards, and in 1925 he sold the property to Kirpa Ram, defendant, who is in exclusive possession of it up till now. In these circumstances in my opinion the plea of adverse possession must prevail.

7. There is yet another ground for the dismissal of the suit. The defendants have opened a window and two doors in the northern wall of their shop. The plaintiff's shop is to the south. The new opening will in no way interfere with the possession of the plaintiff, nor is it in any way inconsistent with the exclusive possession of the defendants' shop. Even if Ramchandar was placed in possession of this shop by an arrangement for the convenience of the parties there appears no reason why the defendants should not be allowed to make the shop given to them more comfortable. The plaintiff thereby loses nothing. Learned Counsel for the appellants relied upon Sheo Harakh v. Jai Govind : AIR1927All709 . In that case a learned singla Judge observed as follows:

One of several joint owners is not entitled to make a building on the joint property without the consent of the other joint owners.

8. Again at p. 709, col. 2 the learned Judge observes:

Of course, if the building was erected long ago it would be presumed that the cosharer in exclusive possession who erected the building did so with the permission of the other cosharers. No such presumption can be made in a case like this where the erection is of a recent date and has been objected to from the beginning. The principle to be applied in this case is whether the erection of the building by the appellant is in keeping with the method of exclusive possession hitherto enjoyed by the appellant. If so there should be no interference.

9. As the defendant Kirpa Earn and his purchaser Mathura Prasad were allowed to remain in exclusive possession of the northern shop since 1908, in my opinion there should be no interference with the defendants in opening the window or doors. The same principle however will not apply to the construction of an upper storey over the shop. If the defendants are in possession of the northern shop only by arrangement, in my opinion, they should not be allowed to add another storey to their shop. This question however is unimportant in view of my finding on the question of adverse possession. In the result I allow the appeal, set aside the decrees of the Courts below and dismiss the suit. The appellants will be entitled to their costs from the respondents throughout. Leave to appeal under Letters Patent is granted.


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