1964 Supreme(Pat) 121

PATNA HIGH COURT
S.C.Misra and G.N.Prasad JJ.
Phul Kumari Devi
Versus
Sambhu Prasad Singh
Letter Patent Appeal No. 119 of 1958 ;
Decided On : AUGUST 25, 1964

Headnote:

The dispute was regarding the title and possession of a house. The plaintiffs claimed half share in the house and wanted their share to be carved out and allotted to them exclusively. The defendants resisted the suit on the ground that the plaintiffs had no title over the house in question, that whatever interest they had therein, had been relinquished by them in favour of the defendants on receipt of the proportionate price for the house, that even assuming that the plaintiffs had title over the house, it was lost by adverse possession since the defendants have been in exclusive possession over the entire house openly, uninterruptedly and peacefully, to the exclusion of the plaintiffs, for more than twelve years after an open assertion of exclusive title made by their predecessor-in-interest, Baijnath Pd. Singh and Sonadhari Singh; and that the suit as a simple suit for partition without seeking declaration of title was not maintainable.

Fact of the Case:

The property of which partition is sought is a house situated in Mohalla Muharrampur Bhanwar Pokhar, in the town of Patna, bearing Old. Holding No. 101 and New Holding No. 153, within Circle No. 14, of the then Patna City Municipality. The plaintiffs (now the sole plaintiff Sambhu Prasad Singh) claim -/8/- annas share in the disputed house and want their share to be carved out and allotted to them exclusively. It has been alleged in the plaint that the remaining -/8/- annas share to the house belongs to the defdts and that the plffs and the defendants have been in joint possession and occupation of the same as co-sharers. It has further been alleged in the plaint that on account of the house remaining joint, there has been apprehension of conflict relating to "shares to the repair and occupation thereof" and that of late due to ill-feeling" there is apprehension of dispute in the possession and occupation of the plaintiffs and the defendants". It is said that on behalf of the plaintiffs a proposal was, therefore, made for partitioning the house amicably, but the defendants have been putting it off, and hence the necessity for instituting the suit.

Finding of the Court:

The disputed house has been referred to in the third Paragraph of the deed (Ext. 1) in the following terms: "Besides these properties, one house situate in Mauza Rajipur, and one house situate in Mohalla Bhaur Pokhar thana Bakarganj, one of the quarters of Patna Town, belongs to us, the executants Nos. 6 to 8 and the same are owned and possessed by executants Nos. 6 to 8, and the consideration money of these properties had been paid out of the khas money of executant No. 6. Other parties have no connection and concern with the same." The properties accepted as belonging to executants Nos. 6 to 8 have been specified in Schedule No 3. Item No. 5 of the said schedule is in respect to the Rajipur house and it has been mentioned that half share therein belongs to executants Nos. 6 and 7 and the remaining halt belongs to executant No. 8. In regard to the disputed house, item No. 6 of Schedule 3 recites; "Out of the sixteen annas house situate in Mohalla Mohrampur Bhaur Pokhar, thana Bakarganj, one of the quarters of Patna town, one half is owned and possessed by executants Nos. 6 and 7, and the other half share in the said house belongs to executant No, 8. Circle No. 14, Holding No. 101".

Issues: 1. Whether any title was ever acquired by the plaintiffs over the disputed house; 2. Whether that title was lost to the plaintiffs by adverse possession of the defendants: and 3. Whether the suit for mere partition was maintainable without any prayer for declaration of title.

Ratio Decidendi: The true test to apply to a transaction which is challenged by the reversioners as an alienation not binding on them is, whether the alienee derives title from the holder of the limited interest or life tenant. In the present case Khairati Lal acquired no right from the daughters of Daulat, for the compromise, to use their Lordships language in Rani Mewa Kunwar V/s. Rani Hulas Kunwar, 1 Ind App 157 at. p. 166 (PC), is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is.

Final Decision: The appeal is allowed, the judgment and decree of the learned Single Judge and of the learned Subordinate Judge are set aside and the suit is dismissed. The appellant is entitled to costs in all the Courts.