IMPORTANT POINT
In a suit governed by Article 65 of Limitation Act plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove that he was in possession within 12 years preceding filing of suit and on contrary it would be for defendant to prove if he wants to defeat plaintiffs claim to establish his title by adverse possession.

Headnote:(i) Limitation Act, 1963-Article 65 -Adverse possession-Occupation of property by one of the co-sharers-Non-participation in rent and profits to a co-sharer does not amount to ouster so as to give title by prescription as a co-sharer becomes a constructive trustee of other co-sharer-In a title suit plaintiff will succeed if he proved his title and it would no longer be necessary for him to prove that he was in possession within 12 years preceding filing of suit-To prove adverse possession/ouster the defendant must prove animus-possidendi-Mere non-payment of rents and taxes might be one factor for proving adverse possession but could not be said to be sole factor-Appellate Court and High Court applied wrong principle of law in relation to interpretation of Article 65 of the Act.
       Held : Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-sharer and the right of the appellant and/or his predecessors in interest would, thus, be deemed to be protected by the trustee. As noticed hereinbefore, the respondents in their written statement raised a plea of adverse possession only against the third set of the defendants. A plea of adverse possession set up by the respondents, as reproduced hereinbefore, do not meet the requirements of law also in proving ouster of a co-sharer. But in the event, the heirs and legal representatives of Gayaram Kalita and Kashiram Kalita partitioned their properties by metes and bounds, they would cease to be co-sharers in which event a plea of adverse possession as contra distinguished from the plea of ouster could be raised. The courts in a given situation may on reading of the written statement in its entirety come to the conclusion that a proper plea of adverse possession has been raised if requisite allegations therefor exist. In the event the plaintiff proves his title, he need not prove that he was in possession within 12 years from the date of filing of suit. If he fails to prove his title, the suit fails. (Para 18)
       Possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses 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 records in the name of one co-sharers would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. No such finding has been arrived at by the High Court. (Para 24)
       (ii) Civil Procedure Code, 1908-Section 11-Res-judicata-Decision in money suit-Shall not operate res-judicata in title suit.
       Held : In the aforementioned suit, the only issue which could be raised and determined was as to whether respondent No. 3 was a tenant of the plaintiff. As the plaintiff or his predecessors in interest failed to show that respondent No. 4 was inducted by them, his claim for arrears of rent was rejected but the Court while determining the said issue could not have gone into a pure question of title as well as the question as to whether the respondents herein acquired title by adverse possession. (Para 27)

JUDGMENT

S.B. Sinha, J.-This appeal is directed against a judgment and decree dated 20.5.1991 passed by Gauhati High Court dismissing the Second Appeal preferred by the appellant herein.

Background Fact

2. Md. Sadagar Sheikh was the original owner of the suit premises. He transferred the same to Gayaram Kalita and Kashiram Kalita. The premises in suit, thus, owned and possessed by the said Gayaram Kalita and Kashiram Kalita, who were brothers. By reason of a registered deed of partition dated 1.12.1938, the structures standing on the land in suit being holding Nos. 522 and 523 of the Nalbari Municipality were divided into half and half, each measuring 5½ lechas. Prafulla Kalita, son of Gayaram Kalita, allegedly, amalgamated both the said holdings and got them registered in his name as holding No. 121 in the records of Nalbari Municipality. Holding No. 522 was sold and portion of holding No. 523 was leased out in favour of the respondent No. 3 by Prafulla Kalita.

3. Upon the death of Md. Sadagar Sheikh, however, his sons got the lands mutated in their favour in mutation case No. 414/70-71 in terms of an order of the Sub Divisional Officer of the Nalbari Municipality.

4. By reason of a registered deed of sale dated 28.11.1972, the defendants Nos. 7, 8 & 9 transferred their possessory rights in holding No. 523 including the house to the appellant for valuable consideration. On or about 24.9.1977, the legal representatives of Md. Sadagar Sheikh, being defendant Nos. 10, 11 & 12 transferred their right, title and interest in old holding No. 523 to the appellant herein on receipt of the consideration of a sum of Rs. 5000/-. Upon purchase of the suit premises in the manner aforementioned, the appellant herein called upon the respondent No. 3 to pay rent to him which was denied.

Legal Proceedings :

5. Although the name of the plaintiff was initially mutated in Nalbari Municipality, the same was cancelled by an order dated 26.9.1977. The taxes deposited by the plaintiff were directed to be refunded. As the respondent No. 3 did not pay rent to the appellant, he filed a money suit for recovery of arrears of rent being No. 83 of 1978 in the Court of Munsif which was dismissed. An appeal preferred thereagainst by the appellant was also dismissed. In view of the fact that the name of the appellant was not ultimately mutated in the records of the Municipality as also in view of dismissal of the said money suit, the suit was filed wherein the appellant prayed for the following reliefs :

"(i) For a decree for declaration of right, title and interest of plaintiff over the suit land and the house standing thereon.

(ii) A decree may also be passed against the defendant No. 4 for ejectment from the suit house by removing its goods and articles therefrom and also a decree for mesne profit of Rs. 4350.00 against defendant No. 4.

(iii) A decree for issuing precept to the Nalbari Municipal Board for mutating the name of the plaintiff on holding No. 121 (kha) the suit house.

(iv) The cost of the suit may be decreed against the contesting defendants.

(v) Any other relief to which the plaintiff is entitled to may also be decreed."

6. In the said suit, there were three sets of defendants. The first set being defendants No. 1, 2, 3, 5 & 6 were the legal heirs and representatives of late Prafulla Kalita. The second set being defendants No. 7, 8 & 9 were the legal heirs and representatives of late Kashi Ram Kalita and the third set being defendants No. 10, 11 & 12 were the legal heirs and representatives of late Md. Sadagar Sheikh. The defendant No. 4 (Respondent no. 3 herein) was a cooperative society which was inducted as a tenant by Prafulla Kalita. In the said suit the contesting respondents herein inter alia raised a plea of adverse possession alleging :

"That right of adverse possession had accrued upon the predecessor-interest, and these defendant, as these defendants and the

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2003 Supreme(SC) 987

Cases Referred (4)