JUDGMENT
S.T. Kharche, J.
1. The short question that is involved in this appeal is, whether a co-owner can claim title to joint ownership property by way of adverse possession as against other co-owner without an overt denial of the title of the latter by the person in possession?
2. The original plaintiff Rambhau Bhaduji Bhende and original defendant Kisan Bhaduji Bhende died during the pendency of this appeal and their legal representatives have
been brought on record.
3. This second appeal has been filed by the original plaintiff Rambhau against the judgment and decree passed by the 2nd Additional District Judge dated 4-10-1989 in Regular Civil Appeal No. 203 of 1983, who dismissed the appeal with costs and confirmed the findings of the trial Court dismissing the suit, i.e. Regular Civil Suit No. 571 of 1999 of the plaintiff for partition, possession and mesne profits.
4. Brief facts are as under:
The original plaintiff Rambhau and original defendant Kisan are real brothers. Defendants Kishan was plaintiff’s elder brother. Both were living in the same house but they were having separate mess and residence at Nagpur. They had purchased the suit field, i.e. Survey No. 55, admeasuring 11.22 acres, situated at mouza Vanjara, Tahsil and District Nagpur, in their joint names in the year 1958. Kisan, being the elder brother, used to manage and cultivate the suit field and both of them were tenants in common. The plaintiff was doing another business at Nagpur and he had no time to look after the suit field and he used to visit mouza Vanjara to help his brother in cultivation intermittently at about four or five times in a year. Whenever there was a surplus income in the suit field, the defendant Kisan used to pass half of the profit to the plaintiff. The dispute between them started in the year 1977 when the defendant made an application for recording the mutation entry in his name without the knowledge of the plaintiff. The mutation case was registered as Revenue Case No. 3-RTS 64/76-77 and it was held by the Naib Tahsildar that plaintiffs name should be removed from the record of the suit field and that of the defendant be maintained. Being aggrieved by that order, the plaintiff had filed Revenue Appeal No. 3/RTS 64/76-77 before the Sub-Divisional Officer who allowed the Appeal and set aside the order passed by the Naib Tahsildar and remanded the case to him for fresh enquiry by order dated 28-11-1977. Since then the defendant stopped paying half share in the profit. The defendant was called upon to effect the partition of the suit land but in vain and, therefore, the plaintiff was constrained to file the suit for partition, separate possession of his half share along with the claim of mesne profits.
5. The defendant combated the claim by filing written statement and contended that till 1962 he managed the cultivation of the land for himself and on behalf of his brother. At the time of purchase of the suit field the defendant was unable to pay the full amount of consideration as he was short of fund and there was likelihood of the contract being cancelled. The plaintiff, therefore, provided fund of Rs. 2,500/- while the balance amount of Rs. 1,500/- was paid by the defendant. The plaintiff thereafter desired to sell his half share in the suit field in favour of the defendant in the year 1962 and the offer was accepted and, as such, as per the oral agreement, the defendant paid Rs. 2,500/- to the plaintiff in the year 1962 by way of 30 or 40 instalments. After receipt of full consideration by the plaintiff, the defendant asked him to execute the sale-deed in his favour but he avoided to execute the same on one pretext or the other. In these circumstances, the defendant became the exclusive owner of the suit field. He further contended that since the year 1962 till the filing of the suit, he was continuously cultivating the suit field and was in possession to the knowledge of the plaintiff without interruption for the statutory period and, therefore, he has become owner of the same by adverse possession and the suit is barred by the period of limitation and liable to be dismissed.
6. On the aforesaid pleadings, the trial Court framed the issues and the parties have adduced the evidence. The trial Court after considering the evidence held that the alleged transfer by sale to the defendant was not valid in view of Section 54 of the Transfer of Property Act, 1882 (for short the T.P. Act). He further recorded the finding that the defendant has become owner of the suit land by adverse possession. Consistent with these findings, he dismissed the suit. The plaintiff being aggrieved by the Judgment and decree passed by the trial Court preferred an appeal which also came to be dismissed on 4-10-1989. It is this Judgment and decree passed by the Appellate Court that has been challenged in this second appeal.
7. Mr. Puranik, learned counsel, for the plaintiff/appellants contended that there was no evidence adduced to show the ouster. He contended that the dispute between the parties started in the year 1977 when the defendant had initiated revenue proceedings for the purpose of recording mutation entry in his name alone. He contended that the defendant did not dispute that the suit land was jointly purchased in the year 1958 and even the cultivation was being done by the defendant for himself and on behalf of the plaintiff also. He contended that there was no partition at any time between the two brothers after the purchase of the suit land by them Jointly. He contended that unless there is evidence showing the ouster, the possession would not become adverse and the defendant cannot claim to have perfected his title by adverse possession. In support of this submission, he relied on the decision in Maharajadhiraj of Burdwan Udaychand Mahatab Chand v. Subhodh Gopal Bose, .
8. Mr. Puranik further contended that a permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owners for a period of 12 years or more. In support of this submission, he relied on the decisions of the Apex Court in The State Bank of Travancore v. Arvindan Kunju Panicker, , Roop Singh (dead) through L.Rs. v. Ram Singh (dead) through L.Rs. and Thakur Kishan Singh (dead) v. Arvind Kumar . Mr. Puranik further contended that both the Courts below have committed an error in dismissing the suit of the plaintiff for partition and separate possession of his half share. He contended that though the defendant continued to be in cultivating possession of the suit land, it did not follow that his title has been perfected by adverse possession. Mr. Purnaik also contended that the oral transaction of alleged sale by the plaintiff of his half share to the defendant is a cock and bull story and in absence of any evidence the finding of both the Courts below was perverse and cannot be sustained in law and, therefore, needs to be set aside.
9. Mr. Vaidya, learned counsel, for the defendant contended that both the Courts below have recorded concurrent finding that the defendant has perfected his title to the suit land by adverse possession and, therefore, contended that the question of law formulated as substantial question of law in the present case cannot in any way be termed to be a question of law muchless a substantial question of law. The question formulated in fact is a question of fact. Merely because of application of evidence another view is also possible, that would not clothe the High Court to assume the jurisdiction by terming the question as a substantial question of law. The issue framed by the trial Court was admittedly an issue of fact which Was concurrently held in favour of the defendant and did not justify this Court to disturb the same by substituting its own finding for the findings of the Courts below arrived at on appreciation of evidence. In support of this submission he relied on the decisions of the Apex Court in the cases of Veerayee Ammal v. Seeni Ammal , Pakeerappa Rai v. Seethamma Hengsu , Chandrabhan v. Pamma Bai and Mohanlal v. Nihal Singh .
10. Mr. Vidya further contended that the defendant is in continuous possession of the suit land since the date of its purchase and enjoying the income from the same though initially for the period since 1958 to 1962, and the share in the income of the field was given to the plaintiff. He contended that the plaintiff had orally sold his half share to the defendant in the year 1962 on receiving the consideration and, as such, the defendant has acquired exclusive title to the suit field after the year 1962 and, therefore, he had initiated the revenue proceedings in the year 1977 for recording the mutation entry in his name. He contended that though the plaintiff was a co-owner, the defendant continued to be in cultivating possession of the land right from the year 1962 to the exclusion of the plaintiff who had full knowledge about the perfection of title by the defendant. He, therefore, contended that the suit filed by the plaintiff for partition and separate possession of his half share has been barred by the period of limitation and the concurrent finding recorded by both the Courts in favour of the defendant needs no interference and can be sustained in law.
11. I have carefully considered the contentions canvassed by the learned counsel for the parties. Both the Courts below have negatived the contention of the defendant that the plaintiff had orally sold his half share for the consideration arid there is no reason for this Court to interfere with this finding because the oral sale cannot be recognized in view of the Section 54 of the T.P. Act. Be that as it may, one thing is certain that it is not at all in dispute that the suit field has been purchased by the plaintiff and defendant, who are the real brothers, in their joint names by making the payment of consideration to the vendor in the year 1958 and the defendant being the elder brother and being in advantageous position continued to cultivate the suit land since the year 1958 and onwards. It is also evident that the mutation entry was recorded in the record of rights in the name of both the brothers and there was no partition of the suit land between them at any time till the filing of the suit, it is also not disputed that the dispute arose for the first time in the year 1977 between the parties when the defendant had instituted revenue proceedings for recording his name as an exclusive title holder in the record of the rights.
12. In Maharajadhiraj Udaychand Mahatab Chand’s case cited supra, the Apex Court held that once it is held that the appellant is a co-owner of the land in question, his possession howsoever long it might be, unless it is adverse to the other co-owners cannot confer on him any right.
13. In Thakur Kishan Singh’s case cited supra, the Apex Court held, “the possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a do-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.
14. In State Bank of Travancore’s case, cited supra the Apex Court held that the permissive possession’ cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owners for a period of twelve years or more.
15. In Roop Singh’s case cited supra, the Supreme Court observed that permissive possession for long does not convert to adverse possession and the claimant by cogent and convincing evidence must show hostile animus and possession adverse to the knowledge of real owner.
16. In the present case, the contention of Mr. Puranik that the finding recorded by both the Courts below on the issue of adverse possession is perverse and not based on evidence appears to be well founded. The trial Court did not dwell much on this point and only observed that since the plaintiff was fully aware that he had got half share in the suit field, and the defendant used to give income of the suit field as if his own and remained in uninterrupted possession of the suit field since 1962 till 1977, i.e. more than 12 years, and, as such, it resulted in utter hostileness of plaintiffs title. It is admitted fact that the defendant asserted his title in the year 1977 in the revenue Court when he applied for mutation and the defendant, therefore, perfected his title by adverse possession.
17. The appellate Court’s finding is based on surmises and conjectures by observing in para 20 that the plaintiff relinquished his right and interest in the suit field in favour of the defendant in the year 1962 and since the defendant did not go to the suit field since 1962 and that the transfer of half share is void ab initio, the possession of the defendant after the date of transfer becomes adverse from the date of the transfer in as much as the transferee acquires no right by the transfer in respect of the property at all. He is a mere trespasser, and if by a continuous occupation of 12 years, he matures his title then the right of ownership is available not only as against the transfer but against the whole world. This finding of the appellate Court is not based on any evidence and the entire approach of the appellate Court appears to be erroneous and cannot be sustained in law.
18. In para 22, the appellate Court observed as under:
“In cross-examination plaintiff Rambhau (P.W. 1) admitted that he was not even willing to cultivate the land nor he was willing to cultivate the land on the date of his deposition. In further cross-examination, he categorically admitted that since 1962 till the date of his evidence he did not cultivate the suit field and during the said; period he did not spend any amount for its cultivation or seeds. He did not enquire from the defendant about the income or loss of the suit field. After 1962 he did not pay the land revenue of the suit field and since 1962 he did not go to the suit field nor took any objection to the defendant’s possession over the suit field. He deposed that he could not say how the defendant was cultivating the suit field, but they both were the owners. Thus, it is clear that since 1962 the plaintiff remained silent in respect of the cultivation of the suit and he had no interest in it. Again it is important to note that the plaintiff was unable to say how the defendant was cultivating the suit Held. As the plaintiff failed to say positively that the defendant was cultivating the suit field as the co-owner, but merely asserted that the (V.O.) owner both owners, goes a long way to suggest either the plaintiff might have sold his share in the suit field orally to the defendant or relinquished his share in the suit field in the favour of the defendant on the say of his mother. Thus, the fact remains on the record the defendant Krishnarao (DW 3) was in exclusive possession of the suit field since 1962 openly, continuously with hostile assertion of title to the knowledge of the plaintiff. Thus the defendant was in continuous adverse possession over 12 years prior to the filing of the suit, and therefore, he perfected his title by adverse possession.”
19. The aforesaid finding is clearly a perverse finding in view of the admitted position that the plaintiff and the defendant were the co-owners of the suit field and in absence of any evidence to show that there was a partition in between the brothers at any time after 1962 and also in absence of any evidence to show that the plaintiff had relinquished his share or sold his share in the suit field to the defendant.
20. The finding recorded by both the Courts that the suit of the plaintiff seeking the relief of partition and separate possession of half share is barred by limitation is not only erroneous but has resulted into miscarriage of justice.
21. It is settled law that where co-owners, the possession of one being in law, the possession of all, it will not be possible for one co-owner to put an end to that possession by any secret intention in his mind. So long as possession is that of a joint co-owner no question of any bar of limitation would arise during that, period, and in the absence of ouster or exclusion the possession of one co-owner is not adverse to the other co-owner, whether ouster is proved depends upon the facts of each case. The burden of proving ouster is on the person who claims to have ousted the others, to establish ouster, it is necessary to prove the requisite animus, to prescribe title adversely to the other co-sharer. There must be positive evidence of possession hostile to the other co-owners and this hostile animus must be brought to the knowledge of the co-owner against whom ouster is claimed. Ouster is a positive matter; and the hostile animus necessary to constitute buster must also be a positive matter. It is a matter involving action, it cannot be mere inaction. If the co-owner in possession did not give a share of the income to the co-owner out of possession merely because the latter did not ask for it, then such animus may be only a negative animus. On the other hand, if the evidence shows that even if the co-owner out of possession demanded his share, the co-owner in possession would not have given him a share, then the animus is positive, in the sense then it is indicative of an animus to exclude. For entertaining a hostile animus to ouster the real owner, the person in, possession need not know who the real owner is, if he has the animus to hold the property as his against whole world including the real owner, whoever he be, known or unknown, the animus is sufficiently hostile to exclude the real owner also.
22. The test is whether the co-owner in possession has openly and unequivocally and to the knowledge of the other co-owners denied their title to the property. A party who sets up a hostile title to the exclusion of coheirs must be definite and unequivocal in his assertion. When the assertions are in the nature of ‘hide and seek’, that is to say, mutually contradictory and merely intended for the purpose of taking a tactical advantage out of a litigious situation, it cannot be considered as an assertion of hostile title adequate for the purpose of becoming the starting point in the acquisition of title by adverse possession. In the present case, there is absolutely no evidence to prove the ouster and both the Courts below have committed an error of law in coming to the conclusion that the defendant has perfected his title by adverse possession resulting into miscarriage of justice.
23. It is not possible to accept the contention of Mr. Vaidya, learned counsel, for the defendant that the concurrent finding recorded by both the Courts below on the Issue of adverse possession, needs no interference and this Court cannot exercise jurisdiction under Section 100 of the Code of Civil Procedure for setting aside the judgment and decree passed by both the Courts below dismissing the suit. The decisions of the Supreme Court relied on by the learned Counsel for the defendant have no bearing on the facts and circumstances of the present case. This Court can definitely interfere if it is shown that the findings of the Courts below have no basis in any legal evidence on record or is based on misreading of evidence or suffers from legal infirmity which materially prejudices the case of one of the parties or the finding is perverse. I am fortified in my view by the decision of the Apex Court in the case of Neelakantan v. Mallika Begum wherein it is held that it is well settled that the High Court while considering the matter in exercise of its jurisdiction in second appeal or civil revision would not reverse the finding of fact as recorded by both the Courts below but it is not an absolute proposition in a case where the finding is recorded without any legal evidence on record, or on misreading of evidence, or suffers from any legal infirmity which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view. In the present case, the concurrent finding recorded by both the Courts below appears to have been recorded without any legal evidence on record, on misreading of evidence and suffers from legal infirmity when there is no evidence to prove the ouster and, therefore, cannot be sustained in law. Thus, the co-owner cannot claim title to the joint ownership property by way of adverse possession as against other co-owner without an overt denial of title of the latter by the person in possession.
24. In that view of the matter, the appeal is allowed and the judgments and decrees of both the Courts below are set aside and the suit of the plaintiff is decreed, the plaintiff is held to be entitled to the half share in the suit land. The defendants (his legal heirs) are directed to deliver the possession of the half share of the suit land to the legal heirs of deceased plaintiff by making a partition of the said land through the Collector as is required under Section 54 read with Order XX, Rule 18 of the Code of Civil Procedure. Enquiry into future mesne profits shall be held Under Order XX, Rule 12(1)(c) of the Code of Civil Procedure.