Co-ownership and adverse possession cannot coexist; possession by co-owners is not adverse to each other.

1. The instant appeal is against the judgment and decree dated 26.11.2014 passed by the learned II Additional Judge, Mahasamund in Civil Suit No.12 - A / 2014 whereby the ejectment decree has been passed over a part of land bearing Khasra No.1190/2/41/1 to the extent of 375 sqft by holding that the plaintiff is entitled to get the possession of the said part of land. Hence the appeal is by the defendants.

2. Brief facts of the case are that Sunderlal and Pannalal both were real brothers. The defendants Dilip Kumar Mahobia, Khilawan alias Munna Mahobia (appellants herein) are sons of Pannalal. According to the defendants, though the suit property bearing Kh.No. 1190/2/41/1 ad - measuring 375 sqft, which is a part of total land of 3,000 sqft was purchased from Ishak Ali in 1969 and the said property stands recorded in the name of Sunderlal in revenue records but claim of appellants was that half of sale consideration was paid by their father Pannalal, as such, they are co - owners. The present dispute started after legal heirs of Sunderlal, in whose name the property was purchased, sold a part of land bearing Kh.No. 1190/2/41/1 to the extent of 375 sqft to the plaintiff Smt. Sumitra Rani Bagga on 09.09.2008. Thereafter, the purchaser Sumitra Rani filed a suit for ejectment on the ground that she is a bona fide purchaser.

3. In defence, the appellants contended that the property could not have been sold solely by the legal heirs of Sunderlal and raised the plea of adverse possession along with co - ownership. The learned court below decreed the suit filed by Sumitra Rani, the purchaser and decree for possession was passed.

4. Learned counsel for the appellants would submit that initially when the sale deed was made in name of Sunderlal, certain consideration was paid by both Sunderlal and Pannalal jointly. He further submits that it was also pleaded that the house was constructed on the aforesaid plot, for which, the expenses were jointly incurred by Sunderlal and Pannalal. It is contended that subsequently a civil suit (Ex.D - 1) was filed in 1999 by Sunderlal and his two sons i.e., Giridhar Lal Mahobia and Vinod Mahobia for declaration and possession against the defendants Dilip Mahobia and Khilawan alias Munna both were sons of Pannalal (appellants herein). Later the said suit was withdrawn in the year 2002 on the ground of pecuniary jurisdiction to evaluate the suit property and accordingly the suit was dismissed as withdrawn with liberty to present it in proper format before the Competent Court after duly evaluating the property, but eventually it was not done. Thereafter, after 5 years, the sale was made in respect of the same property to the plaintiff - respondent. He would submit that the document Ex.D - 7 would show that the appellants are in possession of the disputed property and the electric - meter was also installed in the name of Pannalal. It is submitted that the evidence and pleadings would show that joint consideration was paid by Pannalal and Sunderlal, therefore, the defendants are co - owners being sons of Panna Lal. It is submitted that the statement of Sunderlal recorded in civil suit would show that earlier he is in occupation of the some part of the house whereas their nephews, the appellants are in occupation of the other part. He further submits that the electric meter installed in the name of Pannalal is also admitted in written statement. Therefore, their possession had become adverse to the entire word.

5. Referring to case law laid down in Karnataka Boa