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1956 Supreme(AP) 25
HIGH COURT OF ANDHRA PRADESH
CHANDRA REDDY, J.
Manasani Anasuryamma
Versus
Maddula Venkatagirirao
A. A. A. O. No. 87 of 1953 against order of Sub. J., Tenali,
Decided On : 25-01-1956
Important Points
Subject
Property Law - PARTITION
Act Referred
LIMITATION ACT : Art.166, Art.181
Headnote
PARTITION - LIMITATION - ADVERSE POSSESSION - RES JUDICATA: 1. An application for a final decree in a partition suit, after a preliminary decree defining the parties' shares, is not governed by Art. 181, Limitation Act. 2. A preliminary decree in a partition suit does not bar a subsequent suit for partition if the parties have not proceeded to partition in accordance with it and the property continues to be jointly held. 3. The possession of one co-sharer is, in law, the possession of his co-owners, and mere non-participation in profits or exclusive occupation by one co-sharer does not constitute adverse possession. 4. Adverse possession requires proof of exclusive possession in denial of the title of other co-owners, with notice to them, either direct or inferable from notorious acts and circumstances.
Fact of the Case:
Plaintiffs filed a suit for partition of a house, claiming title under two sale deeds from defendants in a prior partition suit (O.S. No. 565 of 1931). The defendant, who purchased the shares of other co-sharers, resisted the suit on grounds of res judicata and adverse possession.
Finding of the Court:
1. The suit was not barred by res judicata as the preliminary decree in O.S. No. 565 of 1931 did not change the character of the property, which continued to be a joint estate until actual partition. 2. The defendant's possession was not adverse to the co-sharers as it was traceable to a lawful title derived from his vendor, who was a co-sharer. 3. Mere non-participation in profits or exclusive occupation by the defendant did not constitute adverse possession in the absence of proof of exclusive possession in denial of the title of other co-owners, with notice to them.
Issues: 1. Whether the suit was barred by res judicata due to the preliminary decree in O.S. No. 565 of 1931? 2. Whether the defendant acquired an exclusive title to the house by adverse possession?
Ratio Decidendi: 1. A preliminary decree in a partition suit does not bar a subsequent suit for partition if the parties have not proceeded to partition in accordance with it and the property continues to be jointly held. 2. The possession of one co-sharer is, in law, the possession of his co-owners, and mere non-participation in profits or exclusive occupation by one co-sharer does not constitute adverse possession. 3. Adverse possession requires proof of exclusive possession in denial of the title of other co-owners, with notice to them, either direct or inferable from notorious acts and circumstances.
Final Decision: The second appeal was dismissed with costs.
K. Kotayya, for Appellants; Ch. Sankara Sastry (Amicus curiae).
2. In order to appreciate the contentions arising in this appeal, it is necessary to set out the material facts. Respondent 1 filed a suit on the foot of a promissory note against one Mir Mahommed Saheb and attached the properties in dispute before judgment. He obtained a decree on 13-11-1934 for Rs. 1331-11-6 with interest at the contract rate from the date of suit and costs.
Between the date of the decree and 17-7-1935 payments amounting to Rs. 1500/- were made. The judgment-debtor sold one of the properties attached, namely, item 3 under Ex. A-3 dated 27-8-1936 to one Veerayya for Rs. 1800/- in discharge of a debt due to the latter. The vendee conveyed this property under two documents to his two daughters the appellants herein on 4-1-1939.
To realise the unpaid balance, the decree-holder who is respondent 1 herein filed a number of unsuccessful Execution applications. The last one which resulted in the sale of the properties was E. P. No. 20 of 1947. This was for a sum of Rs. 183-14-4. It may be stated here that Mir Mahommed the original judgment-debtor died leaving behind him his widow and three sons. They were brought on record as his legal representatives in the execution petition and notice was ordered to them. But they did not choose to appear and contest the appeal.
In the execution proceedings, the property in question was brought to sale and was purchased by the decree-holder himself for a sum of Rs. 1310/-. Deducting the amount due to him, the decree-holder auction-purchaser deposited the balance of the purchase-money which is said to have been withdrawn by respondents 2 to 5 the legal representatives of the original judgment-debtor. The sale was confirmed on 4-10-1948 and possession taken by the auction-purchaser on 29-11-1948.
3. A few days thereafter, i. e., on 4-12-1948 the petition giving rise to this appeal was filed. This was resisted by the decree-holder auction-purchaser on various grounds, namely, that it is barred by limitation and that there was no irregularity in the conduct of the sale of the properties so as to enable the petitioners to have the sale set aside. The Court below found on both the issues as against the appellants.
4. It is argued by Mr. Kotayya that the lower appellate Court ought to have given relief to his clients having found that the decree-holder was guilty of fraud. According to him though the judgment-debtor was an agriculturist within the meaning of Madras Act 4 of 1938 and notwithstanding that this fact was mentioned in the execution petition filed in 1940, the decree-holder filed an affidavit to the effect that the judgment-debtor was not an agriculturist and thereby prevented the Court from giving relief to the judgment-debtors.
The learned counsel continues that the fraudulent conduct of the decree-holder has vitiated the entire sale proceedings and rendered the sale void and therefore it is unnecessary to have the sale set aside.
5. If really the sale is void as contended for by Mr. Kotayya the application was not barred by limitation as it was filed on 4-12-1948. Article 166, Limitation Act which prescribes a period of 30 days for setting aside a sale applies only to voidable sales and does not govern sales which are absolutely void such as for failure to issue notice under O. 21, R. 22, Civil P. C. The latter category of cases is governed by Art. 181, Limitation Act; such sales do not require to be set aside and could be ignored or a declaration that they are void could be prayed for.
6. But the questio
