A.Rama Died vs O.Krishna Reddy
2023 Latest Caselaw 1738 Tel

            THE HONOURABLE SRI JUSTICE M.LAXMAN

                   SECOND APPEAL No.182 OF 2021
JUDGMENT:

1. This appeal is directed against the judgment and decree dated

16.08.2021 in A.S.No.54 of 2016 on the file of the Court of the V

Additional District & Sessions Judge, Bhongir (for short, lower

appellate Court), wherein and whereby the judgment and decree dated

31.08.2012 in O.S.No.446 of 2006 on the file of the Court of the

Principal Junior Civil Judge at Bhongir (for short, trial Court), was set

aside and suit was dismissed. The appellant filed said suit for partition

and allotment of 1/4th share in the schedule 'A' and 'B' properties and it

was decreed.

2. Originally, appellant No.1 herein filed the above suit. During the

pendency of suit, she died and her legal heirs were brought on record as

plaintiff Nos.2 to 4. The respondents herein are the defendants in the

suit. For the sake of convenience, the parties hereinafter are referred to

as they are arrayed in the suit. The term 'plaintiff' includes her legal

heirs.

3. The case of the plaintiff, in short, is that she and defendant Nos.1

and 2 are the daughters of Donthiri Narsimha Reddy and defendant

No.3 is his wife. Defendant No.4 is the purchaser of schedule 'A'

property from defendant No.2 and defendant No.5 is the purchaser of

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part of schedule 'A' property from defendant No.4. Originally, late

Donthiri Narsimha Reddy had acquired agricultural lands i.e., schedule

'A' and 'B' properties in the partition dated 11.05.1976 effected between

him and his brother. The plaintiff claims that schedule 'A' and 'B'

properties are ancestral properties. During the life time of Donthiri

Narsimha Reddy, he and defendant No.2 had been managing the

schedule 'A' and 'B' properties. The plaintiff is the youngest daughter

and her marriage was performed in the year 1986. The marriages of

defendant Nos.1 and 2 were performed by Donthiri Narsimha Reddy.

During the life time of Donthiri Narsimha Reddy, he sold out an extent

of land admeasuring Ac.6-08 guntas for family necessities. He died in

the year 1990 leaving behind the plaintiff and defendant Nos.1 to 3 as

his legal heirs to succeed to his estate; as such, schedule 'A' and 'B'

properties were devolved upon the plaintiff and defendant Nos.1 to 3.

After the death of Donthiri Narsimha Reddy, defendant No.2 obtained

pattedar passbook and title deed from the revenue authorities and sold

out schedule 'A' property in favour of defendant No.4 under two

separate registered sale deeds dated 23.05.2005 suppressing the fact of

presence of other co-parceners. Later, when defendant Nos.1 to 3

rejected the request of the plaintiff for allotment of 1/4th share in the

properties, she filed the present suit.

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4. Defendant Nos.1 to 3 were set ex parte. The suit was contested by

defendant Nos.4 and 5 who are the purchasers. The common case of

defendant Nos.4 and 5 is that they did not admit that schedule 'A' and

'B' properties are ancestral properties and they claim that they are the

absolute properties of Donthiri Narsimha Reddy. They claimed that

before purchasing the property, they have verified the title deed and

passbook obtained by defendant No.2. As there were no rival claims,

basing on the title deed and passbook, defendant No.4 had purchased the

schedule 'A' property under two registered sale deeds. Subsequently, he

sold an extent of land admeasuring Ac.18-30 guntas in favour of

defendant No.5 under a regd. sale deed dated 19.04.2006 for a sale price

of Rs.2,20,000/- and delivered the possession of the said land; as such,

defendant No.5 is in possession of the said land. The balance land of

Ac.9-18 guntas is in possession and enjoyment of defendant No.4. They

also claimed that plaintiff and defendant Nos.1 and 3 were very much

aware of mutation of schedule 'A' and 'B' properties in favour of

defendant No.2 in the year 1991, after the death of Donthiri Narsimha

Reddy. However, they kept silent for all these years. Such conduct of

the plaintiff and defendant Nos.1 and 3 amounts to estoppel by conduct

and estoppel by acquiescence. Therefore, now they cannot claim title

and possession over schedule 'A' property. Defendant Nos.4 and 5

stated that plaintiff has claimed share in the sale price paid by defendant

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No.4 to defendant No.2. Basing on the said pleadings, defendant Nos.4

and 5 sought to dismiss the suit.

5. The trial Court, basing on the above pleadings, framed the

following issues:

"1. Whether the plaintiff is entitled for preliminary decree for partition as prayed for?

2. To what relief?"

6. On behalf of the plaintiff, P.Ws.1 and 2 were examined and

Exs.A-1 to A-11 were marked. On behalf of the defendants, D.Ws.1

to 3 were examined and Exs.B-1 to B-8 were marked.

7. The trial Court, on appreciation of evidence on record, found

that the plaintiff has not made out the case of ancestral property,

but made out the case of acquisition of joint interest from her

father. Accordingly, the suit was decreed preliminarily. Aggrieved

by the same, defendant Nos.4 and 5 preferred A.S.No.54 of 2016

and the lower appellate Court allowed the appeal setting aside the

judgment of the trial Court and consequently, dismissed the suit.

Hence, the present appeal at the instance of the plaintiff.

8. This Court has admitted the second appeal on the following

substantial question of law.

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"Whether the limitation under Article 110 of the Limitation Act can be applied to oust the rights of the coparceners on the joint family property?"

9. Heard both sides.

Finding on substantial question of law:

10. The facts which are unchallenged are that Donthiri Narsimha

Reddy was the owner and possessor of schedule 'A' and 'B'

properties and he died in the year 1990. The plaintiff and defendant

Nos.1 and 2 are daughters and defendant No.3 is the wife of

Donthiri Narsimha Reddy. The plaintiff is the youngest daughter

and her marriage was performed in the year 1986 by Donthiri

Narsimha Reddy. Prior to her marriage, the marriages of other two

daughters i.e., defendant Nos.1 and 2 were also performed by

Donthiri Narsimha Reddy. It is also not in dispute that the plaintiff

is not staying in the joint family of defendant Nos.2 and 3.

Defendant Nos.2 and 3 were staying in part of joint properties even

after the death of Donthiri Narsimha Reddy. If this Court finds

that the suit is within limitation, the suit of the plaintiff must be

decreed in toto since Donthiri Narsimha Reddy, who was the owner

of schedule 'A' and 'B' properties, died intestate leaving behind the

plaintiff and defendant Nos.1 to 3 as legal heirs to succeed his

estate.

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11. The plaintiff filed the suit for partition and separate

possession pleading that she is out of possession of schedule 'A'

property and she did not claim any joint possession over the same.

In the trial Court, no issue is framed with regard to limitation. The

issue of limitation was first taken in the appeal and the lower

appellate Court found that the suit is barred under Article 110 of

the Limitation Act. It is also not in dispute that defendant Nos.4

and 5 did not raise issue of limitation, except pleading that the title

to the properties was granted in favour of defendant No.2 in the

year 1991 after the death of Donthiri Narsimha Reddy and later,

defendant No.2 was granted title deed and passbook. The entire

evidence and pleadings of the plaintiff did not disclose when she

was dispossessed from the properties and who dispossessed her.

The plaintiff claimed that the schedule 'A' and 'B' properties are

ancestral properties and Donthiri Narsimha Reddy and defendant

No.2 used to manage the same.

12. The trial Court rejected such a plea and ultimately, found

that the schedule 'A' and 'B' properties belonged to Donthiri

Narsimha Reddy. In view of such findings, the title and possession

prior to the death of Donthiri Narsimha Reddy was held by him,

but not by defendant No.2. The plaintiff did not claim that after the

death of Donthiri Narsimha Reddy, she acquired joint possession

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being one of the co-sharers. In this regard, the pleadings of the

plaintiff are silent. No doubt, by virtue of death of Donthiri

Narsimha Reddy, his estate vests with all his legal heirs and his

legal heirs were said to be in joint possession of the properties.

13. Now the question is when ouster of possession of the plaintiff

was done. If the ouster of the possession is by virtue of the sale

deeds, the suit is within limitation. If the ouster is anterior to

purchase of schedule 'A' property by defendant No.4, the ouster

must be at the instance of defendant No.2.

14. In this regard, it is relevant to refer to Section 3 of the

Limitation Act, which reads as under:

"Section 3. Bar of limitation:-

(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) ....."

15. It is also apt to refer to the decision of the Apex Court in

Nazir Mohamed vs. J. Kamala1, wherein it was held as follows:

"53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of

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limitation, even though the plea of limitation may not have been taken in defence.

55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in- interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title."

16. A reading of the above provision and the law laid down by

the Apex Court, it is clear that the plaintiff who comes to the Court

seeking relief must establish that his suit is within limitation. It is

the duty of the Court also to see that whether the suit is within

limitation or not, even though plea of limitation was not taken in

defence by the defendants.

17. It is also relevant to refer to the principles governing the law

of adverse possession in respect of joint family property. Though

this issue is not relevant, to understand the concept of ouster and

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the date from which the ouster has taken place, such principles are

required, which are laid down by the Apex Court in various

judgments.

18. In P. Lakshmi Reddy vs. L. Lakshmi Reddy2, the Apex

Court held as follows:

"10. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [1933] L.R. 61 I.S. 78. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna [1900] L.R. 2 Ind Ap 136. But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non- possessing co-heir by the co-heir in possession, who claims his possession to be adverse, should be made out. The possession of one co-hair is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co- heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy [1912] A.C. 230. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is

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right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 quotes, apparently with approval, a passage from Culley v. Deod Taylerson 3 P. &; D. 539; 52 R.R. 566 which indicates that such a situation may well lead to an inference of ouster "if other circumstances concur". (See also Govindrao v. Rajabai MANU/PR/0076/1930. It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.

19. It is also relevant to refer to the decision of the Apex Court in

Shambhu Prasad Singh vs. Phool Kumari3, whereunder it has

been held as follows:

"17. On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessor. Accordingly, if a holder of title proves that he too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession the title which he holds, (see Kuthali Moothavar v. Paringati Kunharankutty [1921] 48 I.A. 395. As between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers. Therefore, to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. As between them, therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. (see Lakshmi Reddy v. Lakshmi

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Reddy : [1957]1SCR195 and also Mohammad Baqar v. Naim-un-Nisa Bibi. AIR1956SC548. But, once the possession of a co-sharer has become adverse as a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such a manner as it was possible to do. (see Wuntakal Yalpi Chanabasavana Gawd v. Y.

Mahabaleshwarappa [1955]1SCR131 ). The mere fact that a dispossessed co-sharer comes and stays for a few days as a guest is not sufficient to interrupt the exclusiveness or the continuity of adverse possession so as not to extinguish the rights of the dispossessed co-sharer, (see Ammakannu Ammal v. Naravanaswami Mudaliar A.I.R. 1923 Mad. 633)"

20. From the above, it is clear that when a suit for partition is

filed and plea of ouster is set up by the defendants, such a plea has

to be made out by the defendants. For making such a plea, all the

ingredients of plea of adverse possession have to be established. As

between co-sharers, possession of one co-sharer is in law the

possession of all co-sharers. To amount ouster, there must be

evidence of open assertion of hostile title coupled with exclusive

possession and enjoyment by one of them to the knowledge of

others.

21. Before proceeding further, it is also relevant to refer to

Article 110 of the Limitation Act which reads as under:

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Article Description of suit Period of Time from which limitation period begins to run

By a person excluded Twelve years. When the 110 from a joint family exclusion becomes property to enforce a known to right to share therein the plaintiff

22. According to Article 110 of the Limitation Act, a person who

is excluded from joint family property, to enforce a right to share

therein has to file the suit within twelve years. The limitation

begins to run when the exclusion becomes known to such a

plaintiff.

23. In the present case, the plaintiff who was excluded from joint

possession schedule 'A' property has filed the present suit to enforce

a right to share therein apart from "B" schedule property. There is

no dispute with regard to joint possession in respect of schedule 'B'

property. The plaintiff did not plead that she is in joint possession

of schedule 'A' property. Her case is that she was out of joint

possession in respect of schedule 'A' property and her pleadings are

silent when she was dispossessed. Then the Court has to see other

evidence to know that when the plaintiff was out of joint possession.

The plaintiff also did not plead that defendant No.4 had ousted her

from joint possession. This means, defendant No.2, who was

staying with defendant No.3, must have dispossessed the plaintiff

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from the joint possession and not defendant Nos.4 and 5. This is

further clear from transfer of absolute possession of "A" schedule

property by defendant no.2 which is clear from plaintiff's own

pleadings.

24. Now, further question is that when defendant No.2

dispossessed the plaintiff from schedule 'A' property. No doubt,

after demise of Donthiri Narsimha Reddy in the year 1990, his

estate was devolved upon the plaintiff and defendant Nos.1 to 3.

The possession of defendant No.2 after demise of Donthiri

Narsimha Reddy is possession held by her on behalf of all co-

sharers. If it made out that there is open assertion of hostile title

apart from exclusive possession and enjoyment to the knowledge of

all other shareholders, then such possession becomes hostile

possession. Then, the person said to have ousted from joint

possession.

25. In the present case, defendant No.2, after the demise of

Donthiri Narsimha Reddy, made an application to Tahsildar for

grant of title deed and passbook claiming herself as exclusive owner

and entitled for interest of Donthiri Narsimha Reddy. The

provisions of the Telangana Rights in Land and Pattadar Pass

Books Act, 1971 and the Rules framed thereunder prescribe

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publication of claims for grant of title deed and patta pass books

and invitation of objections to the said claim. The title deed

granted under the said Act is treated for all purposes as title of such

holder under the act.

26. In the present case, the title deed was granted to defendant

No.2 in the year 1991-92 which is not in dispute. The suit was filed

in the year 2006, that too, after the lands in schedule 'A' property

were sold to defendant No.4. Till that time, the plaintiff or

defendant No.1 or 3 did not raise objections to such a claim of

defendant No.2. There is also no evidence to prove that the plaintiff

had been exercising during the existence joint title by various acts

of possession though the quality of those acts might not be

sufficient to constitute adverse possession as against another, but it

is abundantly sufficient to destroy the adequacy and interrupt the

exclusiveness and continuity of which demanded from the person

challenging the possession and title which he holds.

27. The possession of defendant No.2 by virtue of grant of title deed

and pattedar passbook changes the character of possession in the light

of open assertion of hostile title in respect of schedule 'A' property.

Such possession undisputedly was the exclusive possession of defendant

No.2 and she alone was enjoying schedule 'A' property. Such a claim of

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hostile title and exclusive possession and enjoyment of defendant No.2

is to the knowledge of the plaintiff and defendant Nos.1 and 3. Such

exclusive possession was continued to be existing till the land was sold

to defendant No.4.

28. The other circumstance is that defendant Nos.1 and 3 have not

preferred any appeal against the dismissal of suit and they are not

asserting any right or title over schedule 'A' property. Therefore, the

findings of the lower appellate Court have attained finality against

defendant Nos.1 and 3, since they did not challenge the said findings in

the present appeal.

28. It is apt to refer to the Full Bench decision of Gauhati High Court

in Assam State Electricity Board, rep. by its Chairman v. Mokalbari

Kanoi Tea Estate (P) Ltd.4, to understand the underlying object,

wherein it has been held as under:

"26. The law of limitation rests on the foundation of public interest. It has been held by Courts that long dormant claims have more of cruelty than justice in them. It is also recognized that with passage of time, the defendant may lose evidence to disprove a stale claim. It is also expected that persons with good causes of action should pursue them with reasonable diligence. In L.S. Synthetics (Supra), the Apex Court reiterated that the provisions of Limitation Act, 1963 are not applicable to the proceedings before bodies other than Courts, such as a quasi-judicial tribunal or even an executing authority and that the Act primarily applies to civil proceedings or special criminal proceedings. The Apex Court

2014 (10) RCR (Civil) 132

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also noted that even in relation to certain civil proceedings, the Limitation Act may not have any application."

29. A reading of the above ratio, it is clear that limitation rests on the

foundation of public interest. The long dormant claims have more of

cruelty than justice in them. With the passage of time, there may be

chance of losing the evidence to disprove a stale claim. Persons having

good causes of action should pursue them with reasonable diligence.

30. In the present case, the plaintiff and defendant Nos.1 and 3 are

very much aware that after the death of their father, they are entitled to

joint title and joint possession in respect of schedule 'A' and 'B'

properties. When defendant No.2 claimed exclusive title and possession

over the schedule 'A' property, defendant Nos.1 and 3 did not object for

such a claim. Normally, the burden would have been on the defendants

to prove the ouster of co-sharer i.e., the plaintiff, from joint possession.

31. Fortunately or unfortunately, in the present case, the plaintiff

herself admitted and laid a claim for partition on the premise that she

was out of joint possession in respect of 'A' schedule property. Another

unfortunate thing is that in the entire pleadings and evidence, nowhere

the plaintiff set up the case that the defendant no.4 had dispossessed her

from the joint possession. The evidence on record discloses that

defendant No.4 did not dispossess other co-sharers. Then, it is

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defendant No.2, who dispossessed the plaintiff and claimed exclusive

hostile title. Such a conduct is clear from the act of defendant No.2 in

obtaining title deed and passbook and continuing in exclusive

possession over the properties without any claims for joint possession

from other co-sharers.

32. In fact, it is the obligation of the plaintiff to establish her suit is

within limitation when she set up the plea that she is out of joint

possession. The evidence on record clearly discloses that the

dispossession of the plaintiff relates back to the date of grant of title

deed and passbook and exclusive assertion of title, possession and

enjoyment by defendant No.2.

33. It appears that the present litigation is due to huge hike in prices

of the lands. Defendant No.4 already sold majority extent of land i.e.,

Ac.18-30 guntas in favour of defendant No.5 and the balance extent of

land is only Ac.9-18 guntas with defendant No.4. From the evidence on

record, the findings rendered by lower appellate Court holding that the

suit is barred by limitation do not require any interference by this Court

in respect of schedule 'A' property. There is no perversity in the

findings of lower appellant Court in holding that suit is barred in

respect of 'A' schedule property.

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34. Indisputably, "B" schedule property is in joint ownership and joint

possession of legal heirs of late Donthri Narsihma Reddy. In fact, all

legal heirs are entitled for equal shares in schedule 'B' property.

Defendant No.2 had already sold out more than her share and she is not

entitled for any lands in schedule 'B' property. The plaintiff, defendant

Nos.1 and 3 are entitled for 1/3rd share each in schedule 'B' property.

Findings of the lower appellate Court in holding that the suit is barred

even in respect of schedule 'B' property are perverse and require to be

set aside. In this regard, the findings of trial Court with regard to

schedule 'B' property require confirmation. Accordingly, the substantial

question of law is decided partly against and partly in favour of the

plaintiff.

35. In the result, the appeal is partly allowed as follows:

i) Judgment and decree dated 16.08.2021 in A.S.No.54 of 2016 on the file of the Court of the V Additional District & Sessions Judge, Bhongir, is set aside to the extent of its findings setting aside the judgment and decree dated 31.08.2012 in O.S.No.446 of 2006 on the file of Principal Junior Civil Judge, Bhongir in respect of schedule 'B' property and consequently, judgment and decree passed by trial Court is modified by allotting 1/3rd share to the plaintiff, defendant No.1 and defendant No.3 each in the schedule 'B' property instead of 1/4th share each.

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ii) The findings of lower appellant Court in respect of schedule 'A' property are confirmed and the suit in respect of schedule 'A' property is dismissed.

iii) There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.

_______________ M. LAXMAN, J DATE: 24.04.2023 TJMR