JUDGMENT
S.S. Subramani, J.
1. Legal representatives of the plaintiff in O.S. No. 135 of 1976, on the file of Additional District Munsif’s Court, Kuzhithurai, are the appellants.
2. The suit was one for partition. The following averments were made in the plaint:
One Abdur Rahman had three children, viz., defendants 1 and 2 the plaintiff. In the entire survey number, he had 1/12th share, and on his death, it devolved on the original plaintiff and defendants 1 and 2. There was a suit for partition in O.S. No. 310 of 1960, on the file of the District Munsif’s Court, Kuzhithurai. That suit was filed by the other co-owners in the survey number with defendants 1 and 2 as legal representatives of Abdur Rahman. Defendants 1 and 2 herein were defendants 32 and 33 in that case.
3. Towards 1/12th share, plaint property was allotted and the same was taken by defendants 1 and 2 on behalf of the plaintiff and other legal heirs of Abdur Rahman. It is also said that on 15.12.1116 M.E. there was a partition between defendants 1 and 2, plaintiff and the widow of Abdur Rahman, and the plaint item was not included therein. It was said that in case there was any property available, that belonged to Abdur Rahman, the same may be partitioned as and when the same is made available or made out.
4. It is said that the plaintiff was demanding partition of this property. But the defendants were refusing to do so, and ultimately, in the cause of action, it is said that they have sold the property to other defendants, as per sale deed dated 27.3.1976, as evidenced by Ex.B-14. A stranger is now allowed to be in possession. Ignoring the same, plaintiff claimed that he is entitled for partition of one-third share.
5. In the defence, it was contended that the plaintiffs are not entitled to any share. Their father has executed a will whereby the plaint property was given to them. It is also said that in the earlier partition suit, they alone were recognised as legal owners and they have taken possession of the same as absolute owners, and not on behalf of the plaintiff also. They said that the sale in favour of the other defendants are valid, and the same cannot be questioned by any one. The alienee also put forward a similar contention.
6. As per revised judgment dated 28.6.1980, a preliminary decree was passed in favour of the plaintiff. The alienees, namely, defendants 3 and 4 filed appeal before the lower appellate court as A.S. No. 128 of 1980. The lower appellate court held that the plaintiff is not entitled to get partition, since there is ouster and it is more than 12 years, and that therefore the suit is barred by limitation and adverse possession.
7. The legal representatives of the original plaintiff have filed this appeal.
8. At the time of admission of the second appeal, the following substantial question of law was framed.
Whether defendants 1 and 2 can claim adverse possession relying on Ex.B-16, in spite of Ex.A-1, partition deed, to which they are parties?
9. Plaintiff and defendants 1 and 2 are co-owners, cannot be disputed. In fact, that was not challenged by any one. It is said that there was a will dated 5.9.1108 M.E., whereby the property was allotted to them only. But that statement also cannot be correct, for at that time, the property was not acquired by the acquirer. The will was in 1108 M.E., whereas the acquisition was 1111 M.E.
10. That apart, even the defendants, legal heirs of the acquirer, have given a goby to the so called will, by executing Ex.A-1 partition deed. Under that deed, plaintiff was given shares, de hors the so-called will. There is also a further statement in Ex.A-4 that if in case any other property is found to be as belonging to the deceased, it will be distributed in accordance with shares under law. So, there was an obligation on the part of the defendants to distribute any property which was subsequently found out or which was not partitioned under Ex.A-4.
11. As stated earlier, the original acquirer had only undivided right in the plaint item. The other co-owners who had a right in the Survey Number, filed a suit as O.S. No. 310 of 1960. By that time, the acquirer was dead. Defendants 1 and 2 alone were parties. Even in that suit, even though defendants 1 and 2 alone were parties, as legal representatives of Abdur Rahman, they took delivery of the property representing the estate. The entire 1/12th share was taken by them. Even at that time, there was no partition between themselves. We find that pursuant to the partition decree, property was taken delivery through court only on 25.3.1965, as per Ex.B-15. Defendants 1 and 2 came into exclusive possession of the property only on that date. The suit was filed on 6.4.1976. When a co-owner is in possession of a property, law presumes that he is representative for the other co-owners and possession of one is considered to be possession of all. In this case there is no pleading regarding ouster, and it is not known whether the same was brought to the knowledge of the plaintiff. Being co-owners, the adverse character has to be brought to the notice of the non-possessing co-owners. The Supreme Court, in Mohd. Zainulabudeen (since deceased by L.Rs.) v. Sayed Ahmed Mohideen and Ors. (1980)1 S.C.C. 345, has held thus:
Where one co-heir pleads adverse possession against another co-heir then it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. The possession of one co-heir is considered in law, as possession of all the co-heirs. 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. Thus it is a settled rule of law 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 construe ouster. Thus in order to make out a case of ouster against the plaintiff- appellant’s mother or the plaintiffs, it was necessary for the defendants to plead that they had asserted hostile title coupled with exclusive possession and enjoyment to the knowledge of their mother. But, neither in the written statement nor in reply to the notice of the plaintiffs, any stand was taken that the right of plaintiff’s mother or plaintiffs was specifically denied on any particular occasion as to put them on notice that from that date the possession of the defendants would be adverse to the interest or rights of the plaintiffs or their mother. From the evidence it was clear that the relations between the plaintiffs’ mother and her brothers were cordial and as such there was no question of any knowledge to the mother that she was being ousted from her right or share in the Dargah. No evidence had been led by the defendants to show that such right was openly denied by the brothers which would be considered as an ouster. The first appellate court had considered all these aspects in detail after discussing the entire evidence placed on record and had clearly recorded the finding that there was no proof of ouster in the present case. The High Court committed a serious error in reversing the above finding and in taking a wrong approach in holding ouster.
12. As stated earlier, even defendants 1 and 2 came into possession exclusively only in 1965 as per Ex.B-15, and the suit has been filed within 12 years therefrom. Of course, in the meanwhile, they have executed Ex.B-14 on 27.3.1976, i.e., 10 days before the institution of the suit. The pleadings in this case absolutely lack necessary ingredients to prove ouster. Evidence also shows that the case now put forward is only an afterthought and to help the alienee.
13. In the result, the substantial questions of law are answered in favour of the appellants. The second appeal is allowed with costs. The appellants are entitled to costs in the second appeal.