2007 Supreme(All) 2493

[2008(2) ADJ 88]
ALLAHABAD HIGH COURT
BEFORE : PRAKASH KRISHNA, J.
RAMZAN AND OTHERS ........Appellants
Versus
Smt. GAFOORAN AND OTHERS ......Respondents
(First Appeal No. 217 of 1977, decided on 28th September, 2007)

Headnote:(A) Limitation Act, 1963—Articles 64 and 65—Partition of property—Filing of suit by plaintiffs in house of her share—Question of adverse possession and of limitation—Defendants claiming their title over entire property—On basis of two sale-deeds executed in favour of their pre-decessors-in-interest—And they have further pleaded that vendor- respondent was exclusive owner of said property and was also in possession—By means of aforesaid sale-deeds, she transferred entire property as also possession to vendee, i.e., pre decessors-in-interest of defendants 2 to 7—Pleadings do not show that defendants 2 to 7 put forward a claim of adverse possession against co-sharers—Respondent-1 was one of co-sharers, as found by Courts below—Common case of parties that she was in possession of property in question, being a co-sharer—She had every right to transfer her share in disputed property—But instead of transferring her 1/3rd share, she somehow represented to vendee that she was exclusive owner in possession of property in question—And vendee purchased property treating her to be exclusive owner thereof—Vendee, thus, came in possession of disputed property in place of respondent-1, and has stepped in her shoes, and thus, became co-owner—Held, as possession of defendants, was not of adverse possession as defendants were claiming their title and possession on basis of two sale-deeds—Plea of limitation was not raised in written statement—Findings of trial Court that suit was barred by time, being contrary to law—Cannot be sustained—Article 65 of Limitation Act would be applicable, as suit was based on title—Period of 12 years would start running since when possession of defendants became adverse to plaintiffs—Possession of respondents was not adverse to plaintiffs, as defendants were claiming their title on basis of two sale-deeds—There was no dispute with regard to extent of share of plaintiffs—Suit should have been decreed for partition of their 2/3rd share—Hence, judgment and decree of Courts below modified to extent by decreeing suit for partition of 2/3rd share of plaintiffs. [Paras 26, 29 to 34]

       (B) Adverse possession—A possession of a co-owner was on behalf of all co-owners—And would not become adverse, unless ouster of other co-owner was established by evidence on record. [Para 15]

       (C) Limitation Act, 1963—Articles 64 and 65—Applicability of. [Para 16]

       (D) Adverse possession—There must be an intention on part of person claiming adverse possession to dispossess true owner—Intention needs to be open and hostile enough to bring same to knowledge of plaintiff—He should have an opportunity to object—After all, adverse possession right was not a substantive right—But a result of waiving (wilful), or omission (negligent, or otherwise) of right to defend or care for integrity of property, on part of paper owner of land—Possession of adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to paper owner. [Para 18]

       (E) Adverse possession—Possession must start with a wrongful dispossession of a rightful owner—And be actual, visible, exclusive, hostile and continued over statutory period. [Para 22]

       (F) Adverse possession—Where one co-heir pleads adverse possession against another co-heir—Then it was not enough to show that one out of them was in sole possession and enjoyment of profits of properties—Possession of one co-heir is considered in law, as possession of all co-heirs—Co-heir in possession, cannot render his possession adverse to other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of other co-heirs’ title—Thus, it is a settled rule of law as between co-heirs, there must be evidence of open assertions of hostile title, coupled with exclusive possession and enjoyment by one of them to knowledge of other, so as to construe ouster. [Para 23]

       (G) Adverse possession—One co-owner cannot plead adverse possession against another co-owner, unless there is an express plea and proof of hostile title asserted to, and remained in possession in assertion of that right to knowledge of appellants—In absence of such a pleading and proof, findings of Appellate Court that one has acquired title to property by prescription, was clearly illegal. [Para 24]

       (H) Adverse possession—A person, who bases his title on adverse possession, must show by clear and unequivocal evidence, i.e., possession was hostile to real owner—And amounted to a denial of his title over property claimed—In deciding whether acts alleged by a person, constitute adverse possession, regard must be had to animus of person doing those acts, which must be ascertained from facts and circumstances of each case. [Para 25]