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Bai Diwali and ors. Vs. Koli Bala Ranchhod - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtGujarat High Court
Decided On
Case NumberSecond Appeal NO. 1323 of 1960
Judge
Reported inAIR1970Guj10
ActsLimitation Act, 1908 - Schedule - Article 144
AppellantBai Diwali and ors.
RespondentKoli Bala Ranchhod
Appellant Advocate K.M. Parikh, Adv. for; A.S. Pradhan, Adv.
Respondent Advocate M.M. Patel, Adv.
Cases ReferredDagadabai Fakirmahomed v. Sakharam Gawaji
Excerpt:
- - thus, it is well settled that the possession of one co-sharer is possession of all co-sharers in respect of the propety unless it is shown that there was a denial of the right to the knowledge of the other side for a requisite period of 12 years under art. it may well be and in fact as done in the suit, since defendant no......defendants nos. 1 to 5 remained in possession as co-owners along with the other co-sharer in the suit property. when such is the decision and the rights of the parties are found on that basis in respect of the same suit property the rights of the parties in respect thereof can be said to have been crystallized and made final. the property then can be said to have been held by defendants nos. 1 to 5 as co-owners along with defendant no. 6 - the plaintiff in the present suit. the partition is a right incident to the ownership of property and once the defendants are held as co-owners, their right to partition cannot be resisted as observed in the case of chhotekhan v. malkhan : [1955]1scr60 .2. it is indeed true that such a right can be resisted on the ground of adverse possession.....
Judgment:

1. It is, thus, a common ground that in the suit land the plaintiff-respondent has 1/3 share and the suit land has been in actual possession of defendants Nos. 1 to 5. The normal rule of law in the case of joint property is that mere exclusive possession and enjoyment by one co-owner is not enough to constitute adverse possession against the other co-owner, unless there is a denial of title justifying a presumption of ouster of the latter as held in the case of Nargisbai D. B. Acidwala v. Jehangir Hormusji Mody, (1943) 45 Bom LR 104. In Mohammad Baquar v. Naim-un-Nisa Bibi, AIR 1956 SC 548, it has been observed that possession of one-co-sharer is possession of all co-sharers and 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 of 12 years. Thus, it is well settled that the possession of one co-sharer is possession of all co-sharers in respect of the propety unless it is shown that there was a denial of the right to the knowledge of the other side for a requisite period of 12 years under Art. 144 of the Indian Limitation Act. The contention of Mr. Parikh, the learned advocate for the appellant, was that defendants Nos. 1 to 5 have been holding this property adverse to the plaintiff since more than 12 years and that they should, therefore, be held to have acquired ownership by adverse possession against him. According to him, no such point was decided in Civil Suit No. 128 of 1950 between the parties and that it is, therefore, a question open to be gone into the present suit. As already stated hereinabove. Suit No. 128 of 1950 was a suit for partition. Every party in the suit, therefore, was interested in the property in dispute and the claim of all the parties in relation to the property were to be ascertained and decided by the Court. It may well be and in fact as done in the suit, since defendant No. 6 the plaintiff of the present suit, had not claimed possession by offering to pay the necessary court-fees in respect of his 1/3 share in the suit land, no further orders came to be passed n tha suit and the decree for possession after partitioning the same came to be passed in favour of the plaintiffs only. That, however, does not make any difference for, after all, on a consideration of the entire evidence in the case the Court had come to the conclusion that the property was kept as joint property belonging to the three brothers and that it was held by defendants Nos. 1 to 5 as co-owners along with the plaintiffs and defendant No. 6 in the suit. It was on that basis that the learned Assistant Judge who heard the appeal against the decision in that suit came to the conclusion that the property was held jointly by all of them each branch having 1/3 share in it. The possession was awarded to the plaintiffs only and it remained to be awarded to defendant No. 6 in that suit. I have already pointed out hereabove that the claim made by defendants Nos. 1 to 5 was of their exclusive ownership over the said property as also based on adverse possession against the persons claiming interest in that property. The Court decided that it was, a property held jointly by three branches, each branch having 1/3 share therein, and that the defendants Nos. 1 to 5 remained in possession as co-owners along with the other co-sharer in the suit property. When such is the decision and the rights of the parties are found on that basis in respect of the same suit property the rights of the parties in respect thereof can be said to have been crystallized and made final. The property then can be said to have been held by defendants Nos. 1 to 5 as co-owners along with defendant No. 6 - the plaintiff in the present suit. The partition is a right incident to the ownership of property and once the defendants are held as co-owners, their right to partition cannot be resisted as observed in the case of Chhotekhan v. Malkhan : [1955]1SCR60 .

2. It is indeed true that such a right can be resisted on the ground of adverse possession provided there has been ouster in respect of the property for a requisite period of 12 years, but that can commence by an act of ouster to his knowlege after the date of that decision. The reason is simple. With that decision in the suit between the same parties, the rights over their property came to be declared by the Court, and therefore whatever right or interest any of those parties claimed or had in that property came to merge in the decision itself. There cannot be a separate right or interest independent of the decision in that suit in respect of the same property. If, therefore, any claim of adverse possession was based on the ground of ouster of this plaintiff in relation to the property in question on the basis of any evidence prior to the date of that suit as claimed in this suit it cannot be taken into account. That period of ouster prior to the decision, in my view cannot be tacked with any such period after the decision in the suit. Reliance ws, however, placed by Mr. Parikh for the appellants on the case of Dagadabai Fakirmahomed v. Sakharam Gawaji, AIR 1948 Bom 149. The facts of the case were that the plaintiff mortgaged certain lands and the mortgagee obtained a decree which provided that the mortgagee should have possession of the lands for two years and the possession should thereafter go to the plaintiff. The mortgagee attempted to execute the decree but could not get possession from the defendants who were in possession as heirs of the husband of the plaintiff. The possession was never in fact obtained by anybody. The plaintiff then brought a suit against the defendants claiming as an heir of her husband to eject the defendants. The defendants set up adverse possession. The question was whether possession was interrupted by mortgagee decree and it was held that the possession of the defendants must, on the facs, be deemed to have been adverse throughout and could not be said to have been interrupted by the mortgage decree. It was further held that it is purely a question of fact to be decided in the circumstances of each case. On an analogy of this case, it was urged that the present decree also cannot be said to have any interruption in the adverse enjoyment of the said property by defendants Nos. 1 to 5. The distinguishing feature of the case is that it was not a case of any co-owners or co-sharers where they can be said to have joint interest in the property. When a decree declares a particular party to be a co-owner or a co-sharer along with others with specified shares the others who are in possession thereof as co-owners and that way holding possession of the property on account of themselves and other co-owners and in no way adverse to other co-sharers. By that decree, they become joint owners of the property in suit and it would thus cause interruption to the adverse possession, if held prior to it. That is an incident of co-ownership and that goes along with it. In my opinion, therefore, this case would have no application to the facts of the present case. It is, therefore, clear that the decree passed in Civil Appeal No. 360 of 1951 puts at naught the effect of any right of enjoyment held by defendants Nos. 1 to 5 in respect of that property with a declaration by the Court that the defendant No. 6 - now the plaintiff in this suit having 1/3 share therein along with those defendants. The starting point for adverse possession would be after the decree provided again there is an ouster to the knowledge of the plaintiff in respect of the property. At any rate, the previous period of enjoyment of the property adverse to the present plaintiff cannot be tacked with subsequent period of adverse possession. It cannot be taken into account in a suit which has been based on the declaration of the right of the present plaintiff in Civil Suit No. 128 of 1950.

3. Appeal dismissed


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