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1991 Supreme(MP) 142
1992 (0) MPLJ 79
D.M. Dharmadhikari, J.
Beharilal S/O Ramlal
vs
Jagannath S/O Ramlal
Decided On : 12 March, 1991
Knowledge of ouster from joint family property may be proved directly or inferentially, and the presumption arising from the revenue records showing joint entries in the names of parties can be rebutted by evidence of ouster.
Headnote:
LIMITATION ACT, 1963 - ARTICLE 110 - OUSTER FROM JOINT FAMILY PROPERTY - KNOWLEDGE OF EXCLUSION - REVENUE PROCEEDINGS - ADVERSE POSSESSION - PRESUMPTION FROM REVENUE RECORDS.
Fact of the Case:
Plaintiff filed a suit in 1977 for partition of joint family property, claiming a share in the property inherited from their father. The defendant resisted the suit, claiming that the plaintiff was ousted from the land in 1958 when his claim for share by partition was opposed in revenue proceedings.
Finding of the Court:
The court found that the plaintiff had knowledge of the objection raised by the defendant to the plaintiff's claim of partition in revenue proceedings of the year 1958, and that the plaintiff was ousted from the joint family property in 1958. The court also found that the presumption arising from the revenue records showing joint entries in the names of parties was rebutted by the evidence on record.
Issues: 1. Whether the plaintiff was ousted from the joint family property in 1958? 2. Whether the plaintiff had knowledge of the objection raised by the defendant to the plaintiff's claim of partition in revenue proceedings of the year 1958? 3. Whether the presumption arising from the revenue records showing joint entries in the names of parties was rebutted by the evidence on record?
Ratio Decidendi: 1. Ouster from joint family property requires a denial of title and an ouster to the knowledge of the other co-owner. 2. Knowledge of ouster may be proved directly or inferentially. 3. The presumption arising from the revenue records showing joint entries in the names of parties can be rebutted by evidence of ouster.
Final Decision: The court dismissed the plaintiff's suit as barred by limitation.
D.M. Dharmadhikari, J.
1. In this second appeal, the only question to be decided is one of limitation. By the reversing judgment of the appeal court, the suit was dismissed as barred on the ground that the plaintiff was ousted from the suit lands prior to twelve years of the filing of the suit.
2. It is not disputed that the suit, which was filed in the year 1977, for the purpose of limitation would be governed by Article 110 of the Limitation Act, 1963, which prescribes twelve years' period of limitation for a suit of this nature by a person excluded from joint family property, to enforce a right to share therein. The limitation commences when the exclusion becomes known to the plaintiff.
3. A few necessary facts for deciding the question of limitation may now be stated. The parties are step brothers. The respondent/defendant is elder of them from the first wife of their father Ramlal, who died in the year 1945. It is also not disputed before me that the property in suit was joint family property, inherited by them from their father. The appellant/plaintiff claimed a share in the property by the present suit.
4. The defendant/respondent resisted the suit on the ground that as back as in the year 1958, the plaintiff was ousted from the land when his claim for share by partition was opposed in revenue proceedings by filing an objection Ex.D.10-A. The Revenue Court had passed an order on 15-7-1959 Ex.D.13 directing the appellant to approach the Civil Court as the defendant had denied right of share to the plaintiff. The case of the defendant, therefore, was that the suit having not been filed within the prescribed period of twelve years from the order of the revenue Court against the plaintiff in the year 1959, the same was clearly barred. The first appellate Court accepted the plea of the defendant and dismissed the suit on the ground of limitation. The first appellate Court also recorded a finding of fact in paragraphs 11 and 12 of its judgment that the plaintiffs case of joint enjoyment and sharing of usufruct of the land throughout, till a few months before the filing of the suit, is not supported by any reliable evidence.
5. The learned counsel appearing for the plaintiff in this second appeal assailed the impugned judgment of the Court below on two principal contentions raised by him. Firstly, it was submitted that from the proceedings of the revenue Court, of the year 1958, it was not proved that the intention of the defendant to oust the plaintiff from the suit land was ever made known to the plaintiff. It was contended that a copy of the objection Ex.D.10.A to the partition alleged to have been filed by the defendent in the revenue court was not proved to have been served on the plaintiff. The plaintiff had denied to have in fact filed any application before the revenue authority for partition. The appellant argued that in the absence of knowledge of animus of claim of adverse title by the defendant to the plaintiff, there could be no finding of ouster so as to nonsuit the plaintiff who was admittedly a coheir and a co-owner.
6. The second submission of the learned counsel appearing for the appellant was that the court below ought to have given due weight to the revenue records Ex.P-1 to Ex.P-6, which show that right from 1963-64 to 1973-74, both the parties continued to be jointly recorded on the lands. The learned counsel appearing for the appellant argued that revenue records raised a presumption that the parties continued to jointly hold and possess the land at least up to the year 1973-74. Reliance is placed on the decision in Churamani v. Shri Ramadhar, 1991 MPLJ 311 = 1990 MPJR 743 - M. P. No. 1790/88 dated 19-9-1990.
7. The learned counsel appearing for the appellant also made some attempt to assail the adverse finding against the plaintiff of the appeal court that there was no joint enjoyment and sharing of usufruct from the land between the parties within twelve years of the filing of the suit.
