It is now settled law that in order to claim adverse possession against the co-sharer, it is necessary to establish the actual ouster of the co-sharer of the property, inasmuch as, in the ordinary course, the possession of one co-sharer should be in law deemed to be the possession of the absent co-sharer. In this connection, we may profitably refer to the following observations of the Apex Court in the case of Darshan Singh v. Gujjar Singh :
In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-sharers was denied.
It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned Counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore, manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.
Calcutta High Court
Kalipada Kirtan vs Bijoy Bag And Ors. on 28 January, 2008
Equivalent citations: AIR 2008 Cal 63
Bench: B Bhattacharya, R N Banerjee
1. This first appeal is at the instance of the defendants in a suit for partition and is directed against the judgment and decree dated 22nd January, 1998 passed by the Civil Judge (Senior Division) Ghatal, Midnapore, in Title Suit No. 56 of 1995, thereby declaring that the plaintiff has 1 /3rd share in 'ka' and 'kha' scheduled property and the defendants have 2/3rd share therein with a direction upon the parties to amicably partition the property within five months from the date of decree.
2. It appears that the plaintiff, a sister filed a suit for partition against her brothers claiming 1/3rd share on the allegation that she inherited the property through her father.
3. The suit was contested by the defendants by filing written statement thereby contending that the title of the plaintiff in the property had been extinguished by adverse possession of the defendants. It was further contended that the property being family dwelling house and the plaintiff being a female heir of the Class-1, the suit for partition was not maintainable at her instance.
4. At the time of hearing of the suit, the son of the plaintiff gave evidence in support of her claim while four witnesses including one of the defendants deposed in opposing the prayer of the plaintiff.
5. The learned Trial Judge, on consideration of the materials on record, came to the conclusion that the defendants had failed to prove adverse possession against the plaintiff, an admitted co-sharer, and thus, decreed the suit in preliminary form as mentioned above.
6. Being dissatisfied, the defendants have come up with the present first appeal.
7. Mr. Banerjee, the learned Counsel appearing on behalf of the appellant, at the first instance, tried to convince us that from the materials on record it has been established that the plaintiff had no possession in the property and as such, the learned Trial Judge ought to have dismissed the suit on the ground that without praying for recovery of possession, the suit was not maintainable in the form of one for partition.
8. Secondly, Mr. Banerjee contends that the suit property being a Bastu, in view of Section 23 of the Hindu Succession Act, the plaintiff was not entitled to maintain a suit for partition so long the male heirs decided not to partition among them.
9. After hearing the learned Counsel for the parties and after going through the materials on record we find that it has been admitted by the DW-1, the defendant, that the plaintiff inherited the property through her father. It, was however, alleged that the plaintiff is not in possession of the property for more than 20 years and as such, her title to the property has been extinguished by adverse possession of the defendants.
10. We find that in the Revisional Record of Right as also in the current L. R. Record, the name of the plaintiff is still appearing as co sharer. The son of the plaintiff asserted that the rent was paid by the plaintiff through her brother, the defendant but such allegation has been denied by the defendant.
11. We find that the learned Trial Judge on consideration of the materials on record rightly concluded that merely because a married sister generally resided in her matrimonial house, for that reason, it could not be said that her title to the property had been extinguished for want of actual possession.
12. It is now settled law that in order to claim adverse possession against the co-sharer, it is necessary to establish the actual ouster of the co-sharer of the property, inasmuch as, in the ordinary course, the possession of one co-sharer should be in law deemed to be the possession of the absent co-sharer. In this connection, we may profitably refer to the following observations of the Apex Court in the case of Darshan Singh v. Gujjar Singh :
In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-sharers was denied.
13. We have found that there is no material evidence showing overt acts on the part of the defendants resulting in ouster of the plaintiff from property. In the record of right, she is still shown to be the co-sharer and consequently, her possession is reflected in the record of right. Although the defendant in his deposition denied that the plaintiff paid her share of rent through him, we are of the opinion that even if no rent was paid by the plaintiff of her share, mere non payment of rent by one co-sharer sister will not amount to ouster the said co-sharer.
14. In this connection, it will not be out of place to refer to the following observations of the Apex Court in the case of Karbalai Begum v. Md. Sayeed and Ors. on the question of
non-participation in the rent and profit by a co-sharer: (Para 7)
It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned Counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore, manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.
15. We therefore, find no reason to interfere with the well reasoned findings recorded by the learned Trial Judge on the question of adverse possession.
16. As regards the other question that a part of the property is a Bastu, we are of the view that in view of the omission of Section 23 of the Hindu Succession Act during the pendency of this appeal, such defence is not also available to the appellants even if we assume for the sake of argument that the property is really a family dwelling house occupied wholly by the members of the family within the meaning of Section 23 of the
17. After the omission of Section 23 of the Hindu Succession Act, the bar of partition of family dwelling house at the instance of a female heir of the Class-1 is lifted and consequently, such defence is no longer available to the male heirs to oppose partition as in the Amending Act, even the pending proceedings for partition have not been saved.
18. We, thus, find no reason to entertain the second submission advanced by Mr. Banerjee.
19. In view of what have been stated above, we find no merit in this appeal and the same is dismissed accordingly. No costs.
Rudrendra Nath Banerjee, J.
20. I agree.
21. Appeal dismissed.
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