JUDGMENT
L. Mohapatra, J.
1. The legal heirs of the deceased plaintiff Baidhar Barik are the appellants before this Court against a confirming judgment.
2. The case of the plaintiff is that one Jagannath Barik was the owner of the suit lands and after his death the same devolved on his two sons, Baikuntha and Bauli. The aforesaid two sons remained joint and the settlement record of rights indicate such jointness. Thereafter, there was an amicable partition between both the brothers and the suit lands fell to the share of Baikuntha. While in possession of the suit lands Baikuntha died leaving behind his second wife Kuturi. Kuturi who succeeded to the suit property after death of her husband Baikuntha alienated some portions of her share in favour of one Michhu Mani and her minor son Adikanda Panda. Hema Dei, the daughter of Baikuntha through his first wife in connivance with her maternal uncle also transferred the same lands in favour of the defendants. Due to subsequent transfer made by Hema a suit was filed by Michhu Mani and her minor son in the year 1944 (O.S.No. 412/44) in which Kuturi, Hema and present defendants were also parties. The suit ended in a compromise where the right, title and interest of Michu Mani and her minor son were accepted over the disputed land. After the said suit ended in a compromise the ‘Kha’ schedule lands were alienated by Kuturi in favour of Arjuna Rout under a registered sale deed dated 21.9.1945. Arjuna Rout transferred the same in favour of one Nabakishore Panda and in turn Nabakishore Panda also transferred the same in favour of Shankar Barik who is the father of the plaintiff No. 1 under a registered sale deed dated 1.11.60. Shankar possessed the land as described in
‘Kha’ schedule till his death and thereafter the plaintiffs possessed the same on their own right and title. The defendants started creating trouble for which an Amin was deputed to the spot for demarcation of the said land. Even after such demarcation, the defendant did not restrain from causing disturbance with possession of the plaintiffs as a result of which the plaintiffs filed O.S.No. 2/66. Though the suit was dismissed by the trial Court, on appeal the same was allowed and the right, title and interest of the plaintiffs over ‘Kha’ schedule land was declared. In that suit an observation was made to the effect that the plaintiffs are at liberty to get the ‘Kha’ schedule land for partitioned and allot the same in his favour on the basis that the land originally belong to the family of Baikuntha. In spite of several approaches since the family of the defendant did not go in for partition the suit was filed. The prayer in the suit is for partition of the joint family properties belonging to the defendants family and for allotment of the land purchased by the plaintiffs in their favour.
3. The defendant filed his written statement denying the allegations altogether. The case of the defendant is that the common ancestor Jagannath Barik had a brother named Lokanath. Lokanath died leaving behind his widow Saria as his only legal heir. Though Jagannath and Lokanath were possessing the ancestral properties by mutual separation their home and homestead remained joint. Accordingly, in the current settlement record of rights the names of Baikuntha, Bauli and Saria Bewa found place. While Baikuntha and Bauli were living jointly, Baikuntha died leaving his only daughter Hema and she succeeded to the properties of Baikuntha by way of Survivorship. In course of time Saria also expired having no issue and her share was enjoyed by Bauli who is the predecessor of the defendant. Kuturi was a concubine of Baikuntha and no interest devolved on her after death of Baikuntha. The compromise that was entered into between the parties in O.S.No. 412/44 is not binding on the defendant as he was not property represented in the suit being a minor at the relevant time. An alternative plea was also taken stating that the defendant had acquired title by way of adverse possession and the plaintiffs being strangers to the family of the defendants cannot pray for partition.
4. On the above pleading of the parties, the trial Court framed as many as 14 issues. On consideration of evidence, the trial Court held that even though the plaintiffs have a right to seek for partition the same had become barred by limitation and the defendant had prescribed his right having remained in possession of the suit land for more than 12 years. On the above finding, the suit was dismissed. In appeal also the said finding of the trial Court was confirmed and after disposal of the appeal the present Second Appeal has been filed.
5. This Court admitted the Second Appeal on ground Nos. 1 and 2 which are relevant and quoted below :
” 1. For that the finding of the Courts below regarding adverse possession against the plaintiffs is perverse being opposed to the well established position of law (vide AIR 1966 SC 470, para – 5 at page 473) that “the Purchaser of a co-parcener’s undivided interest in joint family property is not entitled to possession of what he had purchased”. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fail to the share of the co-parcener whose share he had purchased. His right to possession “would date from the period when a specific allotment was made in his favour” (A. 1953 SC 487 at p. 491).
It would, therefore appear that plaintiffs were not entitled to possession till a partition had been made. That being so, the defendant in the suit could never have been in adverse possession in the property as against the plaintiffs” “as possession could be adverse against a person only when he was entitled to possession.”
2. For that unless “ouster” against plaintiffs is pleaded and proved, plaintiffs’ right to sue for partition would never be barred by the law of prescription.”
6. The learned counsel appearing for the appellants challenged the findings of the Courts below with regard to limitation on the ground that in case of alienation of
co-parcener’s undivided interest, the alienee is not entitled to possession of interest purchased by him till partition and possession of co-parceners shall not be adverse against the stranger purchaser as long as there is no partition and accordingly findings of the Courts below that the possession of the co-parceners will be adverse and the suit having not been filed within 12 years from the date of purchase is barred by limitation cannot be sustained. On the other hand, Shri Mishra, learned counsel appearing for the respondent submitted that possession of non alienating coparceners
becomes adverse from the date of sale and the suit having not been filed within 12 years from the date of purchase the defendant-respondent had acquired title by adverse possession and the suit was also not maintainable, being barred by limitation.
7. On perusal of records, I find that though the trial Court framed as many as 14 issues, he only decided the question of limitation and having found that the suit is barred by limitation did not take up the other issues for discussion. From the finding with regard to Issue Nos. 2, 10 and 11, it appears that the trial Court was of the view that the appellant having purchased the land on 1.11.60 should have filed the suit within 12 years thereafter. Since the suit was filed only in the year 1978, the possession of the non-alienating coparceners over the disputed property becomes adverse against the plaintiff and they acquired title by way of adverse possession. The suit having not been filed within 12 years from the date of purchase, the plaintiff had no right to ask for partition. Similar is the view taken by the lower appellate Court and while confirming the aforesaid finding of the trial Court, the lower appellate Court also relied upon a decision of this Court in the case of Smt. Puddipeddi Laximinarasamma v. Gadi Ranganayakemma and Ors. reported in AIR 1962 Ori. 147. The undisputed facts of the present case are that the property in question belongs to the family of the
defendant-respondent and there was no division of property between the members of family of the defendant-respondent. The plaintiff purchased the disputed land from one of the coparceners on 1.11.60. Both the Courts have found that even though the plaintiff had purchased the suit land in 1960 he never possessed the same till filing of the suit. In other words, the non-alienating coparceners remained in possession thereof till the date of filing of the suit. The question that arises for consideration is whether such possession by the non-alienating coparceners can be treated as adverse against the plaintiff. The Court in case of Smt. Puddipeddi Laxminarasamma v. Gadi Ranganayakemma and Ors. (supra) held as follows :
“Coparcenary, as recognised by Hindu Law, can only subsist between members of a joint Hindu Family, and the contention, that the possession of one coparcener is the possession of all, for purposes of limitation, can have no application as between a purchaser from one of the coparceners and the other members of the family. In the absence of a clear acknowledgement of the right of the alienee or participation in the enjoyment of the family property by the alienee, the possession of the non-alienating coparceners would be adverse to the alienee from the date on which he becomes entitled to sue for general partition and possession of his alienor’s share. The fact that the alienee is the purchaser of an undivided interest is not inconsistent with the conception of adverse possession of that interest. From the date of sale the possession of co-sharers becomes adverse to the stranger purchaser.”
But a contrary view has been taken by the apex Court in the case of M.V.S. Manikayala Rao v. M. Narasimhaswami and Ors. reported in AIR 1966 SC 470. The majority view of the apex Court in the said decision is as follows.:
“Article 144 deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. It is well settled that the purchaser of a coparcener’s undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession would date from the period when a specific allotment was made in his favour. It would, therefore, appear that the alienee is not entitled to possession till a partition has been made. That being so, it is arguable that the coparceners can never be in adverse possession of the properties as against him as possession can be adverse against a person only when he is entitled to possession.”
In view of the decision of the apex Court as stated above which still governs the field the possession of the non-alienating coparceners cannot be treated as adverse against the plaintiff and as such there being no partition or allotment of share till the date of filing of the suit the question of limitation would not arise. It therefore, hold that the suit is not barred by limitation and accordingly, set aside the judgment and decree of both the Courts below.
8. As observed earlier the Courts below have not decided any other issue except the issue relating to limitation and therefore, I remit back this suit for fresh disposal taking all the issues into consideration and allowing the parties to adduce further evidence if necessary.
The Second Appeal is allowed with the aforesaid observations.