JUDGMENT
D.C. Srivastava, J.
1. This is plaintiffs Second Appeal.
2. The brief facts essential for disposal of this Appeal are as under:
The plaintiff-appellant filed suit for declaration and permanent injunction in respect of the disputed land Survey No. 682/2, area 1 Acre – 30 Gunthas. This land was owned by Bapukha Madhavsingh. After his death this land fell in the joint ownership of his heirs, namely, four sons viz., Mahobatsinh, Jivubha, Laxmansinh and Natubhai. Out of them Mahobatsinh is living, Natubhai is dead and Vikramsinh is his heir. Jivubha also died, Bharatsinh and Madhusinh are his heirs. Laxmansinh also died, Amarsinh is his heir. All these heirs were joint owners of this land and were also in joint possession. Amarsinh Laxmansinh sold his 1/4 share in the land to the plaintiff-appellant by registered Sale Deed dated 20-12-1968. Subsequently, the land was converted as non-agricultural land. Hence, another Sale Deed dated 16-10-1971 was executed by Amarsinh Laxmansinh in favour of the plaintiff. The plaintiff was placed in joint possession of this 1/4 share along with other co-sharers. Thereafter, Bharatsinh and Madhusinh sold 1/4 share to the plaintiff by a registered Sale Deed dated 30-7-1971 and delivered joint possession along with other co-sharers. Remaining co-sharers told the plaintiff-appellant that they had never sold their share to defendants. Still the defendants, due to their influence, got entries made in their favour in revenue record. The plaintiff then entered into compromise with defendant No. 2 and took Sale Deed from him on 28-10-1971. Still the defendants denied the title of the plaintiff. They have further threatened to remove the goods and belongings of the plaintiff which were kept over the suit land. Hence, the suit for declaration and permanent injunction was filed. Declaration was sought that plaintiff is owner of half portion of the suit land.
3. The suit was resisted by the defendants on the ground that Jivubha being Manager of joint family executed a Sale Deed for Rs. 99/- in respect of the disputed land on 26-3-1960 in favour of the defendants and since then the defendants are owners in possession of the entire land. Thereafter, they got entries made in the revenue record. They denied that Amarsinh Laxmansinh had 1/4 share in the suit land or Bharatsinh and Madhusinh had any share in the land. It was also denied that defendant No. 2 had sold his share to the plaintiff on 28-10-1971 for Rs. 99/-. They further pleaded that since the land in suit was in their actual possession openly and as of right since 26-3-1960 they have acquired title by adverse possession.
4. The suit was dismissed by the trial Court. An Appeal was preferred which was also dismissed. Hence this Second Appeal.
5. Following substantial questions of law were formulated in this Appeal:
(1) Whether on the facts and in the circumstances of the case the learned Judge was right in dismissing the appeal especially when the defendants are the purchasers of l/4th share of the property and, therefore, they are the joint owners of the property and cannot in law claim the title by adverse possession against the other joint owners including the appellant?
(2) Whether on the facts and in the circumstances of the case the learned Judge was right in holding that the defendants have proved that they have become the owner of the suit land by adverse possession especially when he has also held that the plaintiff has acquired the title of l/4th share of the suit land by the Sale Deed executed by Amarsinh on 20-12-1968 and also purchased another l/4th share from the suit land from Bharatsinh and Madhavsinh by Sale Deed dated 30-12-1971?
6. The Learned Counsel for the respondent after close of arguments from the side of the appellant, contended that the respondent No. 1 expired, but his legal representatives were not brought on record. Hence, the Appeal abated. The Learned Counsel for the respondent mentioned that application for substitution of legal representatives of respondent No. 1 was made in the office, but it was not placed before the Court nor is traceable in the office of This Court. A report was called for from the office of the Court wherefrom it was gathered that neither any application for substitution was moved nor the same is pending in the office nor it has been lost from the office. It was a belated attempt of the appellant to move the substitution application on 18-2-1998 which was numbered as Civil Application No. 1772 of 1998. In this Application it was mentioned that respondent No. 1 had expired in March/April 1981.1 have gone through the application. No satisfactory explanation has been given as to why the application for substitution, application for condonation of delay and application for setting aside the abatement was not moved within limitation. I am not convinced with the explanation given in the application. Even exact date of death of respondent No. 1 is not given in the application. The averment that in 1988 substitution application was filed stands negatived from the office report that no such application was ever moved. As such Civil Application, aforesaid, is rejected.
7. The Learned Counsel for the respondent then contended that the Appeal has abated. I am, however, unable to accept this contention. The defendant No. 1 was respondent No. 1 in the Court below and also in this Second Appeal. The suit was filed against both the defendants. The plaintiff-appellant alleged that the defendant No. 2 had sold the land to him under an unregistered Sale Deed. Thus, it cannot be said that cause of action does not survive against surviving respondent No. 2. If the cause of action survives, this Appeal cannot be abated as a whole nor it can be dismissed on this technical ground. There is no merit in this plea of respondent’s Learned Counsel.
8. While perusing the record it was found that cross-objection was also filed by the defendant-respondent Nos. 1 & 2 against findings on issue No. 1. These cross-objections were not argued by the Learned Counsel for the respondent. However, the points taken in these cross-objections can be seen while discussing the substantial question of law formulated in this Appeal.
9. The two substantial questions of law formulated above are inter-connected, hence both are proposed to be disposed of together.
10. The main controversy in the two substantial questions is whether the lower Appellate Court was right in holding that the defendants-respondents acquired title by adverse possession against other co-owners especially in view of clear finding recorded by the lower Appellate Court that the plaintiff has purchased half share in the disputed property from the two co-sharers, and the next connected question is whether the defendants’ plea that they have acquired title over the entire land by adverse possession can be sustained inasmuch as the plaintiff-appellant has established his title in half share of the land in dispute.
11. After considering the argument advanced by both the sides and further considering the judgment of the lower Appellate Court and the material on record I find that the lower Appellate Court has erred in not granting declaration that the plaintiff is at least owner of half share in the property in dispute. The lower Appellate Court likewise fell in error like the trial Court that the defendants-respondents have perfected title over the entire land by adverse possession.
12. While answering Point Nos. 2 & 3 the lower Appellate Court has clearly recorded finding that it is proved that the plaintiff acquired title in suit land so far as l/4th share of Amarsinh and l/4th share of Bharatsinh and Madhusinh were concerned. In face of this finding the lower Appellate Court should not have hesitated in granting declaration that the plaintiffs acquired title to the extent of one-half share in the disputed land. It was not a case where the property was sold by specification, demarcation or according to the boundary. However, undivided shares in the joint family property were sold by two co-sharers in favour of the plaintiff by two Sale Deeds separately. The lower Appellate Court while discussing the alleged Sale Deed executed in the year 1960 in favour of the defendants observed that this Sale Deed was not binding so far as the minor co-sharers were concerned. The lower Appellate Court categorically observed that Jivubha even acting as Manager of Joint family could not transfer by sale the share of minor coparceners and the Sale Deed executed by him could be valid to the extent of his share in the joint family property and not beyond that. The lower Appellate Court further found that the vendors of the plaintiff-appellant were minors and Jivubha was managing the whole property. It further found that it was not proved that Jivubha transferred the shares of minor coparceners for legal necessity or for the benefit of the estate. It further observed that the said Sale Deed may be genuine, but it is not binding upon the minor co-sharers. Still the recitals in the Sale Deed were taken to be correct by holding that the defendants were in possession for more than 20 years and consequently acquired title by adverse possession. The lower Appellate Court unnecessarily criticised the plaintiff-appellant by observing that recital of delivery of possession in the Sale Deed in favour of the appellant were paper transaction. The recital in the Sale Deed in favour of the plaintiff was that it was joint possession which was delivered to the plaintiff along with other co-sharers. In such a case in the absence of partition only notional possession could be delivered and it appears that notional possession was delivered which is mentioned in the Sale Deed. Such recital of joint possession cannot be observed as paper transaction. The lower Appellate Court further observed that there was no necessity for the appellant to obtain Sale Deed from the defendant No. 2 in case the defendant No. 2 was not the owner or in possession of any portion of the joint property. It further observed that the recital in the Sale Deed executed by defendant No. 2 in favour of the appellant shows that the defendant No. 2 was in possession of the property. The lower Appellate Court further observed that if the defendants were in actual possession since 1960, it is difficult to believe that the vendors of the plaintiff put him in joint possession though they themselves were out of possession. Such observation is hardly required for accepting the plea of adverse possession. Subsequent conduct of the defendant was also taken into consideration by the lower Appellate Court, viz., they filed an Application on 5-5-1961 for converting the suit land into non-agricultural land and the entries in the record of rights. It also observed that the plaintiffs took Sale Deed from Amarsinh without making any inquiry whether the land was agricultural or non-agricultural. The conduct of the plaintiff was further criticised because subsequently the Sale Deed was obtained from defendant No. 2. All these criticism will not constitute ouster of the vendors of the plaintiff nor it amounts to disclaimer of the title or share of the plaintiff’s vendor by the defendants. The plaintiff’s evidence of his possession was no doubt considered, but it was disbelieved on imaginary ground. There is no categorical finding of the lower Appellate Court that the plaintiffs case of his possession over the suit land was false or was not proved.
13. The plea of adverse possession by a co-sharer against another co-sharer cannot be accepted unless complete ouster for more than twelve years is proved or disclaimer of the share of the other co-sharer is proved. On the other hand possession over open land by one of the co-sharers will be deemed to be possession on behalf of all the co-sharers. So far as open land is concerned no overt act of possession by the co-sharer is required to be alleged or proved. So long as there is no partition by metes and bounds other co-sharer is entitled to use every inch of land and it is only after partition that one co-sharer can come forward to protect his possession over the specified share obtained in partition. The law of adverse possession relating to persons who are not co-sharers seems to be different. A person who is not co-sharer in the joint property can set up the plea of adverse possession only by stating that his possession extends for a period more than 12 years and that his possession was continuous, open, uninterrupted and hostile to the title of the real owner. Unless these ingredients are alleged and proved, the plea of adverse possession cannot be sustained. However, co-sharer even by making such allegation cannot succeed in the plea of adverse possession, unless he establishes total ouster of the other co-sharer or disclaimer of the share of the other co-sharer. In Shyam Sundar v. Tarachand reported in AIR 1978 HP 24, it was held that in the absence of proof of ouster the possession of co-owner must be regarded as possession on behalf of all co-owners. There can be no ouster unless for a period of 12 years or more, there has been a disclaimer by the co-owner in possession of the right of the other co-owners by open and unequivocal assertion of hostile title. Unless there is some overt act of one party to the knowledge of other party there can be no adverse possession.
In the case before me the defendants have failed to establish any overt act on their part over the property to the knowledge of the plaintiff that they were claiming possession hostile to the title of the plaintiff. Thus, mere allegation of possession or adverse possession is not enough so also long possession does not amount to adverse possession in the circumstances of the case.
14. This Court in N.L. Dev Murari v. J. Chavda reported that owner of open plot of land is deemed to be in possession of it and unnoticed user of land by trespassers cannot amount to possession.
15. In the case under consideration before me the plaintiff has come out with definite case of user and possession in a particular manner. The overt act of the plaintiff constituting his possession was disbelieved by the lower Appellate Court on imaginary ground. As against this no definite overt act was alleged by the defendants which may constitute their exclusive possession and ouster of the plaintiff. There is evidence and explanation from the plaintiff as to when apprehension to his title and possession came to his notice. Simply by moving an application for converting the land into non-agricultural land and by obtaining copies of record of right it cannot be said that it was open and hostile possession of the defendants which may amount to ouster of the plaintiff.
16. In view of above discussion it is held that the plaintiff succeeded in establishing that he is owner to the extent of half share in the property and in absence of partition he will be deemed to be joint owner to the extent of half share in the disputed property. It is further held that the defendants have failed to establish their title against the plaintiff, a joint owner by adverse possession. Substantial Question No. 1 is answered accordingly and the view taken by the lower Appellate Court to the contrary is erroneous.
Second substantial question is answered in affirmative and it is held that the lower Appellate Court fell in error in holding that the defendants have proved that they have become owners of the property in dispute by adverse possession.
17. In view of the aforesaid discussion the plaintiff is entitled to declaration that he is owner of half share in the disputed property. He is not entitled to further declaration that he is owner of further 1/4th share of the defendant No. 2 inasmuch as the Sale Deed executed by defendant No. 2 in favour of the plaintiff has been found to be suspicious and obtained under misrepresentation, etc.
18. The plaintiff also claimed relief of permanent injunction restraining the defendants from entering upon his half portion of the suit land. In spite of declaration that the plaintiff is owner of half share in the disputed property he is not entitled to permanent injunction against other co-owners in absence of partition by metes and bounds as has been observed earlier. Unless the property is partitioned each co-sharer has right to use every inch of the joint land and one co-sharer cannot restrain other co-sharer from using joint land. It is not proved that there was any partition by metes and bounds orally or through agency of the Court. There is also no evidence that for the sake of mutual convenience the parties are in actual possession of their shares as such. Relief of permanent injunction to the plaintiff, therefore, could not be granted. The suit in these circumstances was liable to be decreed partly and the two Courts below committed error in dismissing the entire suit. The Appeal, therefore, succeeds.
19. The Appeal is hereby allowed. The judgments and decrees of the two Courts below are set aside. The suit of the plaintiff-appellant is partly decreed declaring that he is owner of half share in Survey No. 682/2 of Dudhrej village. Rest of the suit is dismissed. In the circumstances of the case the parties shall bear their own cost of this Appeal.