S.K. Ray, J.
1. This is a plaintiffs' second appeal from the reversing decision of the District Judge, Balangir-Kalahandi dated 20-11-73 passed in Title Appeal No 54 of 1971.
Plaintiffs filed the suit for division of the suit lands into four equal shares and for allotment of one such share each to plaintiff No. 1, plaintiff No. 3, defendant No. 1 and defendant No. 2.
2. Plaintiffs and defendants are members of one family as will appear from the following genealogy:
BAIJU MUNDA (dead)
| | |
Chamru Tiknu (dead) Lachhman (dead)
(Died before marriage) =Kandri =Kunda Munda (dead)
| | | | | Lepa (dead)
Ghungi Kali Ladi @ Kamala Bimla
| (dead) Sari (p-3) (P.1)
Gandaram | | |
(D-1) | Kandarpa (P-4) Magsira (P.2)
Arjun (dead) Mahanga
| (Died without issue)
The suit land is 7.22 acres appertaining to holding No. 8 in mouza Mahammadpur and admittedly belonged to Tiknu and on his death it constituted ancestral property in the hands of his successors in interest. There is no dispute now that Kandri, widow of Tiknu, died some time before 1936 when last record-of-rights in respect of the suit land was prepared. In this record-of-rights, Ghungi's name was solely recorded in respect of the suit land. While claiming partition, the plaintiffs explained this recording on the ground that as Bethi system was in vogue in the area, they purposely allowed one name of the family to be recorded in respect of the suit land so that the other members would escape the rigors of that Bethi system. Thus, the plaintiffs' case was a simple suit for partition.
3. Defendant No. 2 fully supported the case of the plaintiffs. Defendant No. 1 alone contested the suit. His case is that his father Kunu married his mother Ghungi, the eldest daughter of the last propositus Tiknu, and remained in his father-in-law's house as the allatom son-in-law. Upon the death of Kandri, widow of Tiknu, Ghungi succeeded to the suit land as her mother's heir, and possessed the same in her own right, title and interest to the exclusion of her sisters. After Ghungi's death, her husband Kunu also remained in exclusive, long, continuous and peaceful possession of the suit land. Thus, Ghungi and Kunu having acquired title to the suit land by ouster of the co-sharers, he is the sole owner of the same and the suit land is, therefore, not liable to partition. The members of the other branch of the family have lost their interest by being out of possession of the suit land for more than 12 years. In 1936 settlement, Ghungi's name was solely recorded in respect of the suit land indicating thereby the exclusive title and possession of her. It is also the defence case that the original plaintiff No. 3 and plaintiff No. 1 executed a deed of relinquishment in favour of Ghungi, mother of defendant No. 1, in the year 1948. On this ground also, the plaintiffs cannot claim partition of the suit land.
4. The trial court decreed the suit after rendering the following findings:
(a) Bethi system was in vogue but the plaintiffs' explanation regarding exclusive recording of Ghungi's name in the record-of-rights in respect of the suit land cannot be easily believed;
(b) Plaintiff No. 1 and her three sisters used to jointly cultivate the suit land along with defendant No. 1; in other words, plaintiffs and defendant No. 1 were in joint possession of the suit land;
(c) Rent receipts, Exts. A and C series, do not lead to the conclusion that Ghungi exclusively was paying rent;
(d) Plaintiff No. 1 and her sister Sari did not execute the deed of relinquishment, Ext. B; and
(e) Defendant No. 1 and his mother did not exclusively possess the suit land.
5. This decision was reversed and the suit was dismissed by the lower appellate court on the basis of the following finding reached by it : Defendant No. 1, and before him his mother, being in exclusive possession of the suit land by ousting their co-sharers, viz., the plaintiffs for more than 12 years, had acquired indefeasible title to it.
6. The sole point urged by the learned counsel for the appellants is that defendant No. 1, on whom the onus is heavy, has not been able to establish the case of ouster. Possession of one co-sharer is, in law, possession of other co-sharers, and to prove ouster it must be shown that the co-sharer claiming ouster had occasion to deny the title of the other co-sharers. In other words, there must be evidence of open assertion of hostile title coupled with exclusive possession. In the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, it has been held:
'But it is well settled that in order to establish adverse possession of one coheir 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 cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part iii derogation of the other co-heirs' title. 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.
The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.'
the same effect is the decision in the case of Mohammad Baqar v. Naim-un-Nisa Bibi, AIR 1956 SC 548, in which, their Lordships have said:
'As under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.' To the same effect is also the decision of the Supreme Court in the case of Gulam Ghouse Mohiuddin v. Ahmad Mohiuddin Kamisul Qadri, AIR 1971 SC 2184, in the following words:
'Possession of one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. Ouster is an unequivocal act of assertion of title. There has to be denial of title to the parties who are entitled to it by excluding and ousting them.' In the case of Om Prakash v. Bhagwan, AIR 1974 All 389, their Lordships reiterating the aforesaid principles of ouster by a co-sharer in possession against another co-sharer, not in possession, proceeded further to say:- 'Elder brother's name being mutated in the records, his receiving of rents etc. of the property, and the subsequent mutation in the name of elder brother's heir is evidence which by itself does not prove open hostile act against the co-sharers.'
7. In the perspective of the aforesaid principles of law, it is to be determined whether, on the evidence adduced in the case, the lower appellate court was justified in holding that a case of ouster has been made out. In paras 3 and 14 of the written statement, defendant No. 1 has set out the case of adverse possession or ouster in the following words
'3.....Ghungi and the plaintiff possessed the lands and after the death of Ghungi, the defendant No. 1 possessed the lands in his own right, title and interest
14. That, the suit is barred by law of limitation as the defendant has alternatively perfected a title in respect of the suit lands by virtue of the exclusive, long, continuous peaceful possession of the same by Ghungi and the defendant.' There is no averment in the written statement of open assertion of hostile title coupled with exclusive possession and enjoyment by Ghungi to the knowledge or her co-sharers, namely, the plaintiffs. It is not the case of defendant No. 1 that he was in possession of the lands adversely also against Ghungi. Therefore, so long as Ghungi was alive, that is till 1967, the evidence has to be analysed to see if Ghungi asserted her hostile and exclusive possession and enjoyment of the suit lands to the knowledge of her co-sharers. Till 1967 defendant No. 1's possession by cultivation or by any other manner must necessarily be construed as that of Ghungi and cannot go towards creating independent title in defendant No. 1 by adverse possession. So, if evidence does not establish ouster of the plaintiff by Ghungi, defendant No. 1 cannot gain any advantage by his possession subsequent to Ghungi's death, as requisite period of 12 years has not elapsed between 1967 and the date of suit.
As indicated in para 10 of the trial court's judgment, P.Ws. 1 to 4 have testified to Ghungi and her three sisters jointly cultivating the suit land. As admitted by defendant No. 1 (D.W. 4), these P.Ws. have got lands adjoining the suit land. D.W. 4 (defendant No. 1) has stated as follows:
'8. The suit land is in one compact area. The P.W. 1 has got land adjoining to west of suit land. Atta portion of suit land adjoins to Atta land of P.W. 3. The land of P.W. 2 adjoins to North of the suit land. The P.W. 4 and his brother Megha have joint land adjoining to South of the suit land.'
The testimony of P.Ws. 1 and 4 has been accepted by the trial court in preference to the evidence of the D.Ws. as, in his opinion, the oral evidence of the P.Ws. stands on a better footing than that of D.Ws. and the evidence regarding joint possession of the plaintiffs along with defendant No. 1 seems to be more probable. The trial court noticed that D.W. 1 admitted that he had no personal knowledge about the cultivation of the suit land and cannot say about the boundary of the same. D.W. 2 is of different village and he has no land adjoining the suit land. He has deposed that from his land the suit land is not visible. On the contrary, he has admitted that P.Ws. 1 and 2 have lands adjoining the suit land. In view of this testimony, the trial court doubted the competency of D.W. 2 to speak about exclusive possession of Ghungi to the exclusion of her three sisters and preferred the evidence of the P.Ws. to that of D.Ws. that all the three sisters were jointly cultivating the land. Similarly, D.W. 3 has admitted that he is not a boundary witness as he has no land adjoining the suit land. D.W. 1 who granted rent receipt Ext. A series admits that he has no personal knowledge about the cultivation of the suit land and is ignorant about the boundary of the same. The finding rendered by the trial court was on a thorough discussion of the oral evidence and on a fair consideration of the documentary evidence.
The lower appellate court's analysis of evidence appears to me to be far from satisfactory. In appraising the evidence of the D.Ws.. he has committed an obvious error of record by saying that D.Ws. 2 and 3 have lands adjacent to the suit land. In making a comparative assessment of the oral testimony of both sides, he completely omitted the admission of D.W. 4 according to which P.Ws. are more competent than D.Ws. to speak about the nature and manner of cultivation of Ghungi and her sisters. Rent receipts and the record-of-rights by themselves would not establish ouster as those two pieces of documentary evidence by themselves do not lead to any irresistible inference of open assertion of hostile title by Ghungi against her sisters. There is also no evidence on record as to such hostile animus on the part of Ghungi being to the knowledge of her sisters. The lower appellate court has neither discussed any evidence which, in his opinion, leads to the conclusion that Ghungi's assertion of her hostile title coupled with her exclusive possession was to the knowledge of her co-sharers, not in actual possession. It seems to me that the lower appellate Court was not alive to this aspect of the theory of ouster. Further, the lower appellate court should not have reversed the findings of fact of the trial court rendered on a fair and adequate appraisement of the evidence on record lightly and without good and sound reasons. In my opinion, appraisement of evidence by the trial court appears to be sound and not perverse or based on grounds which are unsatisfactory by any standard, and, on the contrary, the lower appellate court's appraisement of evidence is faulty, illogical and unsound, specially on account of commission of errors of record pointed out above. In the case of Union of India v. Garbhu Sao, AIR 1972 Pat 341, it has been held that reversing a finding of the trial court by appellate court without considering the entire evidence on record, especially that relied upon by the trial court is not proper in law. In the case of B.B. Karemore v. Govind, AIR 1974 SC 405, the Supreme Court has ruled that the appellate court will not interfere with the finding of the trial court unless it is unsound, perverse or based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. Having regard to the aforesaid principles and considering the manner of appraisement of evidence made by the trial court as well as by the appellate court, this is pre-eminently a case where the reversal of findings of the trial court cannot be upheld. The evidence adduced by the defendant, on whom the heavy onus lies, falls far short of the standard of proof necessary to establish all the elements of ouster, and the defendant must be held to have failed to discharge his onus. Thus, the case of ouster having failed, as held by the trial court, with which I agree in preference to that of the appellate court, the suit is bound to succeed.
8. In result, the judgment and decree of the first appellate court are set aside and those of the trial court are restored. This appeal is, accordingly, allowed with costs.