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Swaroop NaraIn LaxminaraIn and anr. Vs. Mst. Bhanwar Kunwar Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 64 of 1962
Judge
Reported inAIR1967MP152
ActsHindu Law
AppellantSwaroop NaraIn LaxminaraIn and anr.
RespondentMst. Bhanwar Kunwar Bai and anr.
Appellant AdvocateA.P. Sen, Adv.
Respondent AdvocateP.R. Padhye, Adv.
DispositionAppeal allowed
Cases ReferredSee Corea v. Ap
Excerpt:
- - this proposition is now well settled. lakshmi reddy, air 1957 sc 314, (supra) 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 of the profits of the properties......latter two defendants being transferees for consideration for rs. 5,500/, from rani bai. in this suit bhanwar kunwar bai asserts that rani bai had never been in possession of the suit lands, while she (plaintiff) has been in continuous and exclusive possession of the suit lands since the death of their husband. she further asserts that whatever rights rani bai had acquired under the decree dated 17 march 1952, have been extinguished and the plaintiff has full rights, litle and interest in the suit lands and she is entitled to retain their possession. on that basis she claims a declaration that the defendants have got no right, title or interest in the suit lands and that she is entitled to retain her possession as a full owner. she further claims a permanent injunction against the.....
Judgment:

Shiv Dayal, J.

1. The suit lands originally belonged to one Shivprasad who died in 1986 leaving behind him his two widows, Bhanwar Kunwar Bai (plaintiff) and Rani Bai (defendant 1), as his only heirs.

2. In 1951 Rani Bai brought a suit against Bhanwar Kunwar Bai alleging that the latter had remarried in 1944 and, therefore, had lost her rights in the suit property. In that suit she claimed a decree for possession against Bhanwar Kunwar Bai who had been admittedly in possession of the entire property. On 17 March 1952 a decree for possession was passed in that suit in favour of Rani Bai. It appears that execution was taken out twice. The first execution was dismissed for default on 29 November 1952, and the second on 20 September 1954.

3. On 3 July 1958, Bhanwar Kunwar Bai instituted the present suit against (1) Rani Bai, (2) Swaroop Narain, and (3) Laxmi Narain; the latter two defendants being transferees for consideration for Rs. 5,500/, from Rani Bai. In this suit Bhanwar Kunwar Bai asserts that Rani Bai had never been in possession of the suit lands, while she (plaintiff) has been in continuous and exclusive possession of the suit lands since the death of their husband. She further asserts that whatever rights Rani Bai had acquired under the decree dated 17 March 1952, have been extinguished and the plaintiff has full rights, litle and interest in the suit lands and she is entitled to retain their possession. On that basis she claims a declaration that the defendants have got no right, title or interest in the suit lands and that she is entitled to retain her possession as a full owner. She further claims a permanent injunction against the defendants restraining them from interfering with her possession.

4. In this suit, the trial Judge passed a decree for declaration of litle and permanent injunction in favour of Bhanwar Kunwar Bai. As the first appellate Court affirmed it, defendants 2 and 3 have preferred this second appeal.

5. In my opinion, the suit is misconceived and must be dismissed. The position is plain enough. On Shivaprasad's death, in 1936, both the widows acquired title in the property to the extent of 1/2 each. It is common ground that Bhanwar Kunwar Bai remained in actual possession of the property. That being so, her possession, in the eve of law, was possession on behalf of both the co-widows. This proposition is now well settled. See P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314: and Chhote Khan v. Mal Khan, 1955 SCR 60 : (AIR 1954 SC 575). Therefore, Rani Bai was at all lime entitled to her half share in the suit lands and had also the right of partition. That title and that right was acquired in consequence of Shiv Prasad's death as one of his natural heirs. In the previous suit it was in fact found that the mutation was in the joint names of the two widows; that the parties lived jointly; that the possession of the suit lands was joint: and that the possession remained joint till the institution of that suit. (That suit was instituted on 22 February 1950 and was decided on 17 March 1952, vide Ex. D-26). This being the situation, it cannot be said that Rani Bai at any time lost her half share in the suit lands.

6. The sheet anchor of the present suit is paragraph 6 of the plaint, where it is asserted that whatever Rani Bai acquired under the decree dated 17 March 1962 was extinguished, so that Bhanwar Kunwar Bai has full rights, interest and title in the suit lands and is entitled to retain possession of the entire lands. Shri Padhye's argument is that in the decree which was passed in the previous suit, all rights of Rani Bai, including her own half share, merged in it, so that on the remedy of execution becoming time barred, Bhanwar Kunwar Bai became the full owner. Let me now examine what was it that Rani Bai got under the decree. To me it is quite plain that in that suit what Rani Bai essentially claimed was that Bhanwar Kunwar Bai's half share in the suit property was effaced by reason of the latter's remarriage and that half share also vested in her (Rani Bai); she thus became the full owner of the suit property and, therefore, entitled to possession. As said above. Rani Bai was already owner of Shivprasad's estate to the extent of half share. It was not as if she had no title to or interest in the property before Bhanwar Kunwar Bai's remarriage. On the basis of her own half share, Rani Bai was already entitled to partition. Because of Bhanwar Kunwar Bai's remarriage, Rani Bai became entitled to the other half share and, therefore, entitled to the possession of the entire estate. It is abundantly clear that Rani Bai's own half share was not in dispute in that suit. Therefore, when in that suit a decree for possession was passed in Rani Bai's favour against Bhanwar Kunwar Bai, what the former acquired by virtue of that decree was the latter's half share and, consequently, the right of possession of the entire estate.

7. What is it then that Rani Bai lost by reason of the expiry of three years from the dismissal of her last application for execution? In the first place, limitation only bars the remedy but does not extinguish the right itself, except under Section 28 of the Limitation Act. That section applies to 'suits' for possession; it does not apply to 'applications' for possession. On an application for execution of a decree for possession becoming barred by time, the right of the applicant to the property does not extinguish. Merely because the right to take out execution upon a decree is time barred, it does not follow that the decree itself ceases to subsist. The decree remains and will ever remain in full force as to the adjudication of the rights of the parties, whether the execution can be taken out upon it or not. The remedy is barred but the right subsists. It is a different matter that because of the bar of limitation the decree for possession be enforced by execution through Court. It was held in Md. Mumtaz Ali v. Mohan Singh, AIR 1923 PC 118, that a right of property which is vested in one person is not transferred by the mere lapse of time to the person actually in possession.

8. Secondly, even if it could be held by any stretch (I do not think it could be) that the right which Rani Bai got under the decree extinguished, then also it was Rani Bai's right to get immediate possession of Bhanwar Kunwar Bai's half share also which came to an end. But Rani Bai's half share which was not acquired by virtue of the decree, could not be adversely affected by reason of the remedy of execution becoming time barred. This is a necessary corollary of the conclusion I reach while analysing what rights Rani Bai acquired under the decree.

9. Shri Padhye relies on Md. Abdul Rahim Khan v. Ram Bharos, AIR 1925 All 6. That was a case of a mortgage decree for sale. Execution of the decree was allowed to be time barred. It was accepted that section 28 of the Limitation Act would not, in terms apply. It was, however, observed that if owing to the decree-holder's default she allowed her remedy to be barred by time, the mortgagors should be allowed to resist her claim to take a portion of the sale proceeds. That decision, in my opinion, is not in point. If it is held in that decision that the right is also extinguished when the remedy is barred, I respectfully differ. The other case relied on by Shri Padhye is Oman Sheikh v. Halakuri Sheik (1906) ILR 33 All 679. In that case it was held that the plaintiff who had obtained a decree for possession, but allowed its execution to be barred by time, was not entitled to institute a fresh suit upon the same cause of action That case is of no assistance here. Reliance is also placed on Chaudri Abdul Majid v. Jawahir Lal, AIR 1914 PC 66. In that case, an order nisi had become barred by time before the Code of Civil Procedure, 1908, was passed. It was held that the right to enforce the decree having been once barred, no provisions of the new Code operated to revive it. The next case relied on is Het Ram v. Shadi Ram, AIR 1918 PC 34. In my opinion, that decision too is not in point.

10. It is not averred in the plaint that Bhanwar Kunwar Bai acquired title by adverse possession for more than 12 years. What is asserted is that Rani Bai had never been in possession of the suit lands and Bhanwar Kunwar Bai has been in continuous and exclusive possession of the suit lands ever since Shiva-prasad's death. It seems to me undoubted that apart from the true legal position as pronounced by the Supreme Court in the cases already referred to, the decision in the previous suit operates as res judicata so far as it was held that upto 22 February 1950 possession of the co-widows was joint and Bhanwar Kunwar Bai's possession was on behalf of both the co-widows. As the present suit was instituted before the expiration of 12 years from that date, there was no foundation for it. This renders unnecessary to enter into the question that Bhanwar Kunwar Bai's adverse possession, even if there had been any, must be deemed to have been arrested by reason of the decree for possession which was passed in favour of Rani Bai so that no wrongful possession could ripen into a prescriptive title by efflux of time, as held in Achhiman Bibi v. Abdul Rahim, AIR 1958 Cal 487. It was held in Harisingh Dangi v. Ramchandra Dangi, AIR 1957 Madh Pra 238, that where a Hindu widow enters on the property as an heir to her former husband, the presumption is that her possession even after remarriage is only in that capacity and, therefore, she can only prescribe for a limited estate as an heir to her first husband. She does not become an absolute owner of the property without an assertion of absolute title on her part. The written statement of the previous suit was not filed in the present case. It no doubt appears from the judgment (Ex. D-26) of that suit that Bhanwar Kunwar Bai had, in her defence, made a bald statement that the plaintiff (Rani Bai) had been driven out by Shivprasad. But nothing was said beyond that. With what purpose was that institution made was not stated. At any rate, it was not averred that Rani Bai had lost her right or title or had been disinherited by Shivaprasad. Apart from the fact that this statement is neither here nor there, the decision in the previous suit finally answered that question in favour of Rani Bai when a decree was passed in her favour. Moreover, as held in P. Lakshmi Reddy, AIR 1957 SC 314, (supra) 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 of the profits of the properties. Ouster of the non-possession co-heir by the co-heir in possession who claims Ms possession to be adverse should be made out. Their Lord ships recalled that the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. he co-heir in possession cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. See Corea v. Ap-puhamy, 1912 AC 230. There must be evidence of open assertion of hostile title.

11. Thus, examined from any angle, it cannot be said that Bhanwar Kunwar Bai has acquired any title or interest in the suit lands as full owner, or that she has any right of possession of the suit lands as a full owner. Nor is she entitled to any injunction. The necessary result of the above discussion is that the suit must be dismissed.

12. The appeal is allowed. The judgments and decrees of both the Courts below are setaside. The suit is dismissed with costs through out.


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