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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
Narsing Rao Nandikonda, J
B. Sujatha – Appellant
Versus
C. Pentaiah – Respondent
CITY CIVIL COURT APPEAL No.90 of 2011

The right to sue for partition is an inherent, continuing right accompanying co-ownership, for which no period of limitation is prescribed. Mere exclusive possession or receipt of profits by one co-owner does not constitute ouster or adverse possession without clear, hostle, and unequivocal proof of exclusion to the co-sharer's knowledge.

Headnote:(A) Civil Procedure Code, 1908 - Section 96 - Partition suit - Limitation - Whether period of limitation is prescribed for seeking partition - Right to partition is an inherent right of co-ownership - Right of a co-sharer to seek partition is a recurring or continuing cause of action - Unless clear and hostile assertion of title to the knowledge of other co-owners is established, possession by one co-owner is deemed to be on behalf of all. (Paras 13, 15, 31, 43)

(B) Limitation Act, 1963 - Articles 113 - Whether Article 113 applies to partition suits - No period of limitation is prescribed for filing a suit for partition - The cause of action is continuing, thus, a suit cannot be dismissed as barred by limitation regardless of prior refusals to partition. (Paras 15, 21, 31)

(C) Ouster and Adverse Possession - Requirements - Ouster and adverse possession must be established by clear, unequivocal, and hostile acts demonstrating exclusion of the co-sharer - Mere exclusive enjoyment of property or receipt of rents by one co-owner does not amount to ouster or adverse possession - Burden of proving ouster lies heavily on the party asserting it. (Paras 28, 29, 36, 37)

(D) Property Law - Relinquishment of rights in immovable property - Any relinquishment of rights in an immovable property requires a duly registered instrument to have legal validity - Unregistered affidavits cannot extinguish proprietary rights of co-owners. (Paras 30, 38)

Facts of the case:
The appellant sought partition of ancestral property claiming a one-fourth share. The respondents contested the suit, alleging the suit was barred by limitation due to an earlier demand for partition having been refused, and further claimed that the appellant had previously signed an affidavit relinquishing her rights. The respondents argued they had perfected title through adverse possession and ouster by managing the property and collecting rents to the exclusion of other siblings.

Findings of Court:
The court found that the suit property was ancestral and the parties were entitled to equal shares. The initial judgment’s dismissal based on limitation was flawed as partition represents a continuing right. The court rejected claims of ouster and adverse possession, noting the evidence provided by respondents failed to establish hostile, exclusive possession of the required nature. Unregistered affidavits were held legally insufficient to relinquish interests in real property.

Issues: Whether the suit for partition is barred by limitation; whether the defendants-respondents proved the plea of ouster and adverse possession; and whether the plaintiff-appellant is entitled to a decree for partition.

Ratio Decidendi: The right to partition is an incident of co-ownership that remains a continuing cause of action. As no statutory limitation period exists for partition suits, and because the respondents failed to meet the strict evidentiary standards required to establish ouster or adverse possession against co-sharers, the plaintiff’s claim remains maintainable regardless of prior inaction.

Result: Appeal allowed; Judgment and Decree of the trial court set aside; preliminary decree for partition and separate possession granted.