The possession of property by a co-owner does not amount to adverse possession against other co-owners unless clear ouster is proven.

Judgment :

VENUTHURUMALLI GOPALA KRISHNA RAO, J.

This second appeal is filed aggrieved against the judgment and decree dated 17-12-2011 in A.S.No.203 of 2010 on the file of the I Additional District Judge, Ongole, Prakasam District, confirming the judgment and decree dated 28-4-2010 in O.S.No.39 of 2006 on the file of the Senior Civil Judge, Darsi.

2. The appellant herein is the minor defendant, represented by her next friend guardian and later she was declared as major by discharging the guardian vide Court order dated 27-6-2017 in S.A.M.P.No.2009/2016 and the respondent is the plaintiff in O.S.No.39 of 2006 on the file of the Senior Civil Judge, Darsi.

3. The plaintiff initiated action in O.S.No.39 of 2006 on the file of the Senior Civil Judge, Darsi, for preliminary decree for partition and separate possession of plaint schedule properties by metes and bounds into two equal shares and to allot one such share to her.

4. The learned Senior Civil Judge, Darsi, decreed the suit with costs, passing a preliminary decree for partition of the suit properties into two equal shares and one such share shall be given to the plaintiff. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal suit before the first appellate Court. The learned I Additional District Judge, Ongole, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant approached this Court by way of second appeal.

5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the original suit.

6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.39 of 2006, is as follows :

(a) It is pleaded that all the plaint schedule properties were absolute properties of one late Polu China Musalaiah, who was the father of plaintiff and her brother Polu Nasara Reddy @ Nasaraiah. On the death of the said Polu China Musalaiah about 25 years ago, the plaint schedule properties devolved upon the plaintiff and her brother Nasara Reddy @ Nasaraiah in equal shares and they became co-owners and ever since they were enjoying the plaint schedule properties as co-owners.

(b) It is further pleaded that on the death of the plaintiff’s brother Nasara Reddy @ Nasaraiah, his share in the plaint schedule properties devolved upon the minor defendant, who is his sole at law as his wife predeceased him. So, the plaintiff and the minor defendant are co-owners of the plaint schedule properties ever since the death of Polu Nasara Reddy @ Nasaraiah, which occurred in the first week of August, 2006. The plaintiff and minor defendant are in joint possession and enjoyment of the plaint schedule properties and the minor defendant is being represented by her guardian maternal uncle Neelam Kondaiah. In view of strange attitude of the guardian of minor defendant, the plaintiff was feeling inconvenience to continue co-ownership in the plaint schedule properties with the defendant. So, the plaintiff got issued a legal notice demanding partition on 31-8-2006. The guardian of minor defendant refused to cooperate for amicable partition of the plaint schedule properties out of court and he gave a reply notice on behalf of the minor defendant with false allegations on 03-10-2006 and that the plaintiff was constrained to file the suit for partition of the plaint schedule properties.

7. The defendant filed written statement denying the contents of plaint averments and further contended as follows:

(a) It is denied that the age of plaintiff mentioned as 40 years in the plaint and in fact, the plaintiff is aged more than 50 years and except the relationship between the parties, rest of the averments made by the plaintiff in her plaint are denied. According to the provisions of the Hindu Succession Act, if at all the plaintiff is entitled to any share, she will be entitled to a share in the properties of her father i.e., th