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1984 Supreme(Cal) 126
High Court Of Calcutta
SUKUMAR CHAKRAVARTY
SUSHILA HATI - Appellant
Versus
SUBHAS - Respondent
A. F. A. D. 1271 Of 1974
Decided On : 04/08/1984
ASHOK SENGUPTA, Jamini Banerji
A co-sharer cannot acquire title to the joint property by adverse possession unless there is a complete ouster of other co-sharers.
Headnote:
None
Fact of the Case:
Plaintiff filed a suit for partition and injunction on a declaration of his alleged title to the suit land. The defendant claimed title to the disputed room by adverse possession for the last 40 years.
Finding of the Court:
The first appellate court found that the plaintiff had 8 annas share in the disputed Kha scheduled property and that the remaining 8 annas share belonged to the defendants Nos. 1 to 3. It also found that the defendant did not acquire title to the entire disputed room by adverse possession.
Issues: 1. Whether the plaintiff had title to the disputed room? 2. Whether the defendant acquired title to the disputed room by adverse possession?
Ratio Decidendi: 1. The court held that the plaintiff had title to the disputed room based on the evidence of the partition deed, sale deed, and deed of exchange. 2. The court held that the defendant did not acquire title to the disputed room by adverse possession because he was a licensee in the disputed room and there was no case of complete ouster of other co-sharers.
Final Decision: The court dismissed the second appeal and upheld the decision of the first appellate court.
( 1 ) THIS second appeal is directed against the judgment and decree passed by the learned Subordinate Judge, Second Court, Hooghly in Title Appeal No. 262 of 1973, setting aside the judgment and decree of dismissal passed by the learned Munsif, first court, Serampore in Title Suit No. 73 of 1971 and decreeing the suit.
( 2 ) PLAINTIFF filed the suit for partition and injunction on a declaration of his alleged title to the suit land.
( 3 ) IT was the case of the plaintiff that there was one "baithakkhana" (parlor) consisting of two rooms situated in plot No. 1294 of Khatian No. 692 in Mouja Adan. There was a partition between plaintiff's predecessor Nibaran Hati, defendants 1 to 3, defendants 4 and 5, and defendants 7 to 10 in respect of their properties including the Baithakkhana mentioned in the Ka Schedule to the plaint. By that partition plaintiffs predecessor Nibaran Hati and defendants 4 and 5 got the western room of the said Baithakkhana. This partition was effected by a registered deed of partition D/-9-12-1944. By virtue of the sale deed D/-18-10-1954 defendant No. 4 sold their half share of the western room of the Baithakkhana to the pro forma defendant No. 6 and put her in the possession of the same. Thereafter by a deed of exchange D/-26-11-1967 pro forma defendant No. 6 exchanged her share in the western room of the Baithakkhana with the defendants Nos. 1 to 3. The defendant No. 1 felt inconvenience in residing at the rooms of his homestead which he got by an amicable partition with his co-sharers and he accordingly approached the plaintiffs and pro forma defendant No. 6 for allowing him to reside in the Kha scheduled room which is the suit room for 3 years and he was given the permission in the month Agrahayan, 1362 B. S. and on further request by defendant No. 1 the permissive possession was extended The defendant No. 1 broke a window on the eastern wall of the disputed western room of the Baithakkhana and caused damage and filled up the gaps with bricks on 28-2-1971. The permission given to the defendant No. 1 was thereafter revoked and the suit was filed for the relief as claimed.
( 4 ) THE defendant No. 1 alone contested the suit after filing the written statement. The material allegations in the plaint were denied by the defendant No. 1. The permissive possession of the defendant No. 1 as alleged by the plaintiff was denied. It was contended by the defendant No. 1 that he acquired title to the disputed room by adverse possession for the last 40 years. According to the defendant No. 1 the plaintiff had no title to the suit land and he was not entitled to any relief in the suit.
( 5 ) THE learned Munsif on consideration of the evidence dismissed the suit on the ground that the plaintiff failed to prove his alleged title to the disputed room. On appeal the learned Subordinate Judge reversed the judgment and decree of the learned Munsif and decreed the suit by holding that the plaintiff had 8 annas share in the Kha scheduled disputed room and the defendants Nos. 1 to 3 had the remaining 8 annas share, and that the defendant did hot acquire title to the entire disputed room by adverse possession.
( 6 ) BEING aggrieved, the defendants have preferred this second appeal on the ground that the learned Subordinate Judge committed mistake in law in reversing the judgment and decree of dismissal passed by the learned Munsif and decreeing the suit.
( 7 ) MR. Jamini Kumar Banerjee, learned Advocate for the appellants, while advancing his argument in support of the appeal has urged two points. His first point is that the first appellate court has erred in law by not holding that there is no sufficient evidence before the Court on the strength of which it can be held that plot No. 1292 was wrongly mentioned in the partitioned deed dated 9-12-1944 (Ext 1) in places of plot No. 1294 and that the first appellate Court accordingly committed mistake in holding that the plaintiff had title to the hal
