JUDGMENT
A.K. Gohil, J.
1. This second appeal was admitted on the following substantial question of law:-
“Whether on the fats and in the circumstances of the case the Appellate Court committed an error of law in holding that the plaintiff perfected his title to the suit land by adverse possession, although the land stands recorded in the name of the father of the parties ?”
2. Brief facts, for the disposal of this second appeal are that the respondent Amra filed suit for declaration and permanent injunction on the ground that in Village Goriakhedi, agricultural land bearing Khasra No. 134, Survey No. 22 having the area of 10.071 acres and assessed to land revenue Rs. 48.7 which has been recorded in the name of plaintiff and defendant, jointly. Appellants/defendants are the sons and daughters of late Nanda, who was the brother of plaintiff. The contention of respondent/plaintiff Amra in the plaint was that aforesaid khata was partitioned by their father Kishna between Amra and Nanda. It was further contended in the plaint that at the relevant time girls were not having any share in the property and after partition 50% land was given to plaintiff Amra and remaining 50% land was given to Nanda but the land Survey No. 216 was not partitioned and it remained in the possession of Kishna, father of the plaintiff which is in dispute in this suit. This land bearing Survey No. 216 was received by Kishna from one Godad after payment of some dues and land was recorded in the name of father Kishna. This land was again divided by father between the plaintiff and the defendant Nanda, thereafter the father of plaintiff demanded the expenditure of mutation from both the brothers, but deceased Nanda refused to pay the said amount. On refusal, plaintiff forcibly took possession on the share of Nanda’s land in Survey No. 216 and since then he is in possession over the said land. His possession being hostile, adverse and long he became the owner of the land by virtue of adverse possession and he sought declaration that it be declared that he is the owner of the half of the land of Survey No. 216 which was in the share of deceased Nanda, the father of the appellants/defendants as he is continuously cultivating the same since last 30 years.
3. In the written statement appellants/defendants denied the claim of the plaintiff and submitted that entire submission of plaintiff is concocted. Land is the joint property of both and also in joint possession of the parties. There was no such partition of land between two brothers. The Trial Court
framed issues, recorded the evidence and after appreciating the same dismissed the suit of respondent/plaintiff on the ground that he has failed to prove partition of the aforesaid land as well as the ouster of deceased Nanda and his legal heirs from aforesaid land and found that disputed land was joint property of both plaintiff and defendant as there was no partition, and no ouster of one of the parties.
4. In appeal learned First Appellate Court allowed the appeal by setting aside the judgment of Trial Court, and decreed the suit, after placing reliance on plaintiffs evidence holding therein that there was a partition of land and since the deceased Nanda had not paid the share of expenditure respondent/plaintiff Amra had forcibly took possession of land and since then he is in hostile possession and he has also perfected his title on the basis of adverse possession, against which defendant has filed this appeal which was admitted on the aforesaid substantial question of law.
5. I have heard Shri A.S. Kutumbale, learned Counsel for appellants and Shri D.S. Kale, learned Counsel for respondents. I have also perused and considered the evidence on record and I found that the learned First Appellate Court has not properly considered the evidence on record, the learned First Appellate Court has committed an illegality in arriving at a finding that there was a partition between the parties about the disputed land and there is an evidence on record about ouster of possession of defendants from the land in dispute. Normally in a family dispute the normal presumption under the law is that unless partition or division of the property is proved by a cogent evidence on record the status of property shall be presumed as joint.
6. I have perused the evidence of P.W. 2 Bhima, P. W. 4 Khima, they have supported the case of plaintiff. The First Appellate Court has relied on the evidence of D.W. 1 Chhammibai, who is wife of deceased Nanda. From the evidence of parties it is clear that after the death of Nanda plaintiff was trying to set up his own title over the joint property because plaintiff Amra had not filed suit during the life time of deceased Nanda. This contention of P.W. 1 Amra is unbelievable that when his brother has refused to pay the expenses of some proceedings in the Revenue Court on non-payment he took possession over the land forcibly. What was that amount has also not been specified by P.W. 1 Amra in his evidence. It is improbable that merely on the ground of non-payment of some amount a co-heir will forcibly dispossess the other and take possession of his land. More so the plaintiff has not filed any copy of khasra entries either showing partition of the land in dispute or showing his exclusive possession over the same as adverse possessee. In view of such a pleading and evidence plaintiffs suit cannot be decreed on the ground of adverse possession.
7. The First Appellate Court has not considered this aspect of the matter that plaintiff Amra has not filed copy of khasra entries showing his
exclusive possession or copy of some revenue record that during such period he got his name exclusively recorded in the revenue papers. P.W. 2 stated in his cross-examination that Kishna, Amra and Nanda were residing together and he admits that ‘Batwaranama’ was not reduced in writing before Panch. P.W. 4 Khima also admits in examination-in-chief that there was no partition before him. He does not know how the land came in the possession of the plaintiff Amra and both brothers were residing separately and when the land was taken from Godad all the three Kishna, Amra and Nanda were residing separately. Therefore, there are contradictions in the statements of witnesses on plaintiff side. On the contrary the firm statement of D. W. 1 is that the land in dispute is a joint property and there was no partition, which appears to be more reliable in the light of the unnatural story created by plaintiff. I too find that there is no document on record either to prove the partition or to prove the exclusive possession of the respondent/plaintiff over the land. Therefore, it is clear that the First Appellate Court has not properly appreciated the evidence and in the absence of any revenue record which the plaintiff could have filed to prove his case has wrongly set aside the findings recorded by the Trial Court, though the First Appellate Court has cited the case of P. Laxmi Reddy v. L. Laxmi Reddy, reported in AIR 1957 SC314, but has not properly considered the same. The ratio decided by the Supreme Court in that judgment needs to be reproduced hereinbelow:–
“It has been held by the Supreme Court that it is settled 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. 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-heirs by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir 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 can not render his possession adverse to the other co-heirs, not in possession, merely by any secret hostile animus of his own part in derogation of the other co-heirs’ title.
It was further held that the burden of making ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”
8. After perusal of oral evidence on record, I am of the view that there is no evidence on record about the partition of the aforesaid disputed land between the plaintiffs and defendants. Plaintiff could not prove either partition or ouster of the other co-heirs from the land. Plaintiff has not produced
any documentary evidence like revenue record that in whose name the land has been recorded and the possession of the respondent/plaintiff is exclusive in the capacity of adverse possession. In the absence of such an evidence it cannot be said that the judgment of First Appellate Court is proper and legal, based on evidence. The First Appellate Court obviously committed an error of law in holding that the plaintiff perfected his title to the suit land by adverse possession and has not examined the facts of the case in the light of the law laid down by the Supreme Court in the case of P. Laxmi Reddy (supra). During the course of the arguments learned Counsel for parties submitted before me that still theisuit land stands recorded in the name of father of the parties and not in the name of plaintiff who is claiming declaration.
9. In the light of the foregoing discussion and in view of factual situation on record, this appeal deserves to be allowed. Accordingly, I allow this appeal, set aside the judgment and decree passed by the First Appellate Court and restore the judgment and decree passed by the Trial Court for dismissal of the suit and dismiss the suit of plaintiff with costs to appellants herein. Counsel’s fee Rs. 1,000/-, if certified, A decree be drawn up accordingly. Record be returned.