Point of Law : Mere possession of the property for any length of time unless there is proof of his enjoyment nec vi, nec dan, nec precario vis-a-vis other sharers who are now represented by the respondents, this plea of adverse possession cannot stand.

JUDGMENT:

The defendants in O.S.No.348 of 1987 on the file of the Court of then District Munsif (present Junior Civil Judge), Dhone, Kurnool District are the appellants. The respondents were the plaintiffs in the suit.

2. The 1st plaintiff died during trial. For convenience, the deceased 1st plaintiff is referred to as such in this judgment and their children as the respondents 1 to 3.

3. The appellants laid the suit for partition of the plaint schedule house into four (04) shares and to allot them three (03) such shares.

4. The parties are closely related. A genealogy is available on record as Ex.A1 giving their relationship.

5. The plaint schedule house, which shall hereinafter be referred to as ‘the suit house’ for convenience, originally belonged to Sri Polisetty Naganna. Sri Narayana, Sri Atchaiah, Sri Satyanarayana and Sri Seshaiah are his sons. Upon death of Sri Polisetty Naganna, his sons became entitled to this house.

6. The deceased 1st plaintiff is wife of Sri Narayana and whereas the respondents 1 to 3 are their children.

7. The 4th respondent is the wife of Sri Atchaiah and respondent No.5 is their daughter.

8. The 6th respondent is the wife of Sri Seshaiah and the 7th respondent is their son.

9. The 1st appellant is the wife of Sri Satyanarayana and the appellants 2 to 4 are their children.

10. The suit house is bearing Door Nos.13/74 and 13/78 is in Kothapeta of Dhone town, within the boundaries mentioned in the plaint schedule.

11. It is the case of the respondents that since this house is their ancestral joint family property, they are all entitled to their shares therein. They further contended that during the lifetime of sons of Sri Naganna, there was enjoyment of this house in two portions when Sri Seshaiah was a minor. While Sri Narayana and Sri Seshaiah were in occupation of one portion, Sri Satyanarayana and Sri Atchaiah were living in another portion and it is stated that it was on account of the differences among the women folk. Their further case is that later on Sri Narayana migrated to Ubicherla of Ananthapur District for living, while Seshaiah also left Dhone in the year 1964, whose whereabouts were not known and thus presumed dead. They further claimed that in spite of their demands and issuance of legal notice dated 04.09.1987, the appellants did not come forward to divide this property and hence they were constrained to lay the suit.

12. The appellants resisted the suit and mainly contended that there was prior partition among these four brothers of this house prior to the year 1953 and therefore the suit as such could not lie. They also contended that the 1st plaintiff is the concubine of Sri Narayana and hence the respondents 1 to 3 are his illegitimate children. They further contended that Sri Seshaiah left Dhone along with another woman and who never returned. Their contention further is that Sri Satyanarayana during his lifetime got renovated this house and reconstructed spending more than Rs.20,000/-, who continued to be in possession and enjoyment of the same since this house was allotted to his share and was also paying property tax to the Gram panchayat. Thus asserting possession and enjoyment by Sri Satyanarayana of this house adverse to the interests of other sharers, they claimed that he acquired right and title to this property by adverse possession.

13. On the pleadings, the trial Court settled the following issues :

“1. Whether the plaintiffs are entitled for partition and separate possession in the suit house?

2. Whether the defendants perfected their title to suit property by adverse possession?

3. To what relief?”

14. At the trial, the 7th respondent examined himself as P.W.1, 5th respondent as P.W.3 and mother of the 6th respondent as P.W.2 while relying on Ex.A1 to Ex.A10. On behalf of the appellants, the 4th appellant was examined as D.W.1, 1st appellant as D.W.3, D.W.2 alleged to be another wife of Sri Seshaiah while D.W.4 is claimed to be the tenant of the suit house, in support of their c