Adverse possession cannot be claimed against co-owners of ancestral property unless there is clear evidence of hostile possession and effective partition.

JUDGMENT :

ANIL VERMA, J.

1. This judgment shall govern the disposal of Second Appeal No. 26/2005 ( Nanuram Vs. Pannalal and Another ) and Second Appeal No. 318/2005 ( Nathooram Vs. Pannalal and others ), as both the appeal arise out of the common judgment and decree dated 9.12.2004 passed by the 7^th Addl. District Judge, Indore in First Appeal No.53/2004, whereby the judgment and decree dated 6.8.2004 passed by the Civil Judge Class-2, Sanver in Civil Suit No.50-A/2003 has been upheld, by which the civil suit filed by the respondent No.1/defendant Pannalal for declaration of title and permanent injunction has been allowed.

2. During the pendency of this appeal, appellant Nathuram has filed separate appeal and vide order dated 15.9.2006 passed in SA No.26/2005 his name has been deleted from the cause title of appeal memo.

3. Brief facts of the civil suit filed by the respondent No.1 Pannalal before the trial Court are that the agricultural land bearing Survey No.147 and 155/3 admeasuring 0.741 hectare situated at village Manglia was in the joint name of Ramnarayan, Laljiram, Damodar & Hariram. Pannalal has purchased the share of Damodar and Hariram through registered sale deed, but in the registered sale deed the name of Nanuram was also mentioned as a purchaser. But after the purchase the land in question was mutated in the sole name of plaintiff Pannalal. Father of the plaintiff voluntarily partitioned the land between Nanuram, Nathuram and Pannalal, accordingly they have given separate land. Plaintiff possesses land bearing Survey No.149, 153 & 155/1 as an owner and defendants have no title over it, but defendant No.1 Nanuram and defendant No.2 Nathuram have threatened in the year 1977 that they will forcefully take possession of the land. Then plaintiff preferred an application before the Naib Tehsildar, Tappa Kshipra for deleting the name of defendants No.1 and 2 and the order has been passed in favour of the plaintiff. Defendants have no right to interfere in the land in question.

4. Defendant No.1 Nanuram before the trial Court denied all the plaint averments by stating in his written statement that in the year 1965 plaintiff and his father drove him away, therefore, he started living in a rented house, but thereafter his father has partitioned his entire land. Laljiram has given his land to the plaintiff Pannalal. Land of Hariram and Damodar had been purchased in the name of Pannalal and Nathuram and defendant Nanuram was deprived from his share in the suit property. Therefore, he is entitled to get share in the suit property.

5. Defendant No.2 Nathuram also denied the plaint allegation by stating in his written statement before the trial Court that plaintiff Pannalal is a mischievous person. He has drove away Nathuram and Nathuram who did not get any share in the ancestral property. The land of Hariram and Damodar was purchased in the name of Pannalal and Nathuram, but plaintiff fraudulently mutated it in his alone name. Hence, his suit deserves to be dismissed.

6. On the basis of the aforesaid, the trial Court has framed the issues and directed both the parties to adduce their evidence and after conclusion of the evidence, the trial Court has all