Possession by one co-owner is presumed to be on behalf of all unless there is clear, established evidence of ouster or hostile assertion of title.

J U D G M E N T

Defendants 6 to 8 in a suit for partition are the appellants. The 1st plaintiff is the widow of Eldo Mathew. Plaintiffs 2 and 3 are their children. Defendants 1 to 3 are the brothers of Eldo Mathew and D4 is their sister. D5 is the Uncle of Eldo Mathew. The plaint schedule property originally belonged to Mathai and his brother Poulose-the 5th defendant, obtained as per a partition deed of 1959. Mathai died intestate on 23.9.1977. His mother died intestate on 4.6.1982. His wife died intestate on 02.02.2002. Therefore, it is contended that the 5th defendant, who is the co-owner, is entitled to get half share in the suit property. The other plaintiffs and defendants 1 to 4 are entitled to the other half share. Hence, the plaintiffs contended that they are entitled to get 1/10 share in the property. D1 and D3 remained exparte. D2 and D4 filed written statement supporting the plaint averments. D5 died subsequently. His legal heirs were impleaded as D6 to D8. They contended that plaint item no.1 is not liable to be partitioned as it was in the absolute possession of Paulose alias Paul – the brother of Mathai. He alone was in possession of the property and after the death of Paulose alias Paul, defendants 6 to 8 are in possession of the same. Thus, defendants 6 to 8, who are appellants herein contended that the right of other sharers was lost by adverse possession and so they are not entitled to get any share in plaint item no.1.

2. Before the trial court Exhibit A1 was marked.

DW1 was examined on the side of the defendants and Exhibits B1 to B14 were marked. The trial court found that the appellants failed to prove that they were in possession of plaint item no.1 in open assertion of hostile title to the knowledge of other co-owners and hence the plea that item no.1 is not liable to be partitioned, was turned down.

3. The appellate court had a re-appraisal of the entire evidence and concurred with the view taken by the trial court. Since the share of the other co-owners was not specifically mentioned, the appellate court modified the preliminary decree allotting the shares of other co-owners also.

4. Learned counsel for the appellants herein vehemently argued that the courts below went wrong in negativing the plea of adverse possession set up by them. There is evidence in abundance to show that the deceased Paulose alone was in possession of plaint item no.1 and he alone was taking income from plaint item no.1. It is further submitted that admittedly there are shop rooms which were rented out but the rent was collected by deceased Paulose only, which would sufficiently indicate that there was non sharing of income by other sharers for a continuous period of more than 12 years and as such it was an act of asserting hostile title against other sharers. Thus according to the learned counsel, the view taken by the courts below is palpably unsound.

5. Following are the questions of law seen formulated in the appeal memorandum:

i. Have not the appellants legally succeeded in proving their title in respect of plaint schedule item no.1 property?

ii. Have not the appellants legally succeeded in proving their contention regarding adverse possession and limitation, coupled with ouster, in respect of plaint schedule item no.1 property?

iii. Have the courts below committed legal perversity in the analysis of the evidence available in the case and consequently coming to proper conclusions?

iv. Are the judgments and decrees passed by the courts below legally sustainable?

It can be seen that there is no substantial question of law as such. Whether the appellants have succeeded in proving their contention would depend upon the pleadings and evidence adduced by the parties. There is no legal perversity or infirmity in the appreciation of evidence.

6. It is vehemently argued by the learned counsel for the appellants that the parties had entered into a partition deed in 1989 as evidenced by Ext.B7, where it was specifically mentioned that apart