JUDGMENT
V.K. Mehrotra, J.
1. These two appeals arise out of a judgment of a learned single Judge of this Court by which he decided Civil Suit No. 37 of 1976. The plaintiff is
Thakur Ram Singh. The two defendants in the suit are Shri Shiv Saran Singh Thakur and Smt. Sarla Devi. The second defendant, Smt. Sarla Devi, is the wife of plaintiff Ram Swarup.
2. The suit was preceded by an earlier suit No. 121 of 1955. In that suit plaintiff Ram Swarup as also the two defendants in the present suit were defendants. A gift deed is said to have been executed by Shri Ram Swarup in favour of Smt. Sarla Devi regarding 1/16th share in the property, which is the subject matter of the present suit, and was also the subject matter of earlier Suit No. 121 of 1955, in the year 1951. When Suit No. 121 of 1955 was filed, one of the defences taken by Shri Ram Swarup as also defendant Shiv Saran Singh Thakur was that defendant Sarla Devi was not a necessary party to the suit. The suit was for partition of properties known as ‘bellvue South’, Shimla, which was described more fully in Schedule A to the plaint in that suit. The suit was tried by the Senior Sub Judge, Shimla. A copy of the judgment of the learned Senior Sub Judge is Ex.PW 2/2. A perusal thereof shows that on behalf of plaintiff Ram Swarup as also on behalf of the first defendant Shiv Saran Singh Thakur, the objection raised was that Smt. Sarla Devi was not a co-owner of the property. The first issue that the learned Judge framed, on the plea taken in the suit, was whether Smt. Sarla Devi (who was defendant 4 in that suit) was a necessary party. The learned Judge took into consideration the copy of the registered deed (Ex.P6 in that suit) and came to the conclusion that plaintiff Ram Swarup (defendant 3 in that suit) had gifted 1/16 share in favour of his wife, Smt. Sarla Devi. On this basis, it was held that she was a necessary party, being a co-sharer. The concluding portion of the judgment in the earlier suit (para 6 thereof) said :
“As a result of a preliminary decree for partition of the suit properly according to the said share is passed in plaintiffs favour and against the defendant…..”
On the basis of this decision a preliminary decree was drawn up. The operative portion, relevant for our purposes, in that decree said : —
“This suit coming on this day for disposal before me, A.S. Gilani, P.C.S. Senior Sub Judge, Shimla, in the presence of L Thakur Dass, Advocate, for the plaintiffs and Mr. Yog Raj Sethi and Ram Nath Vaid, Advocates, for the defendants. It is hereby ordered that a preliminary decree for partition of the property in suit is passed in favour of the plaintiffs against the defendants in accordance to the shares mentioned in the plaint i.e. plaintiff 1, 1/8th share, plaintiff 2, 1/8th. Defendant 1, 1/2 share, defendant 2, 1/8th, defendant 3 1/16th and defdt. 4, 1/16th share…..”
Ex.PW 2/3 is a copy of the preliminary decree which was made on Nov. 23, 1956.
3. It is common ground that the preliminary decree aforesaid was not assailed by any party to the litigation. In other words, the present plaintiff, Shri Ram Swarup, did not challenge the decree in Suit No. J21 of 1955.
4. In the present suit Shri Ram Swarup averred, amongst other things, that as far as the preliminary decree dt. Nov. 23, 1956 was concerned, it was void, without jurisdiction and non est. Further, that even though the plaintiff (Shri Ram Swarup) and the defendant and Shri Manohar Singh had taken a definite plea that Smt. Sarla Devi was not a co-owner in the property (either in Schedule B or in Schedule A) yet, no issue was framed in this behalf nor any evidence was led and, therefore, the learned Senior Sub Judge had no jurisdiction to find that Smt. Sarla Devi had 1/16th share in the property in suit. In fact, she did not claim any share in the property and the only issue framed was whether she was a necessary party to the suit or not. The preliminary decree being void and non cst has to be ignored. This is found stated in para 11 of the plaint. In the succeeding para 12 of the plaint it is stated that “assuming but not conceding that Smt. Sarla Devi had 1/16th share in the property she never entered into physical or constructive possession. The plaintiff has been in adverse possession of the property and even if Smt. Sarla Devi pro forma defendant had any right, she lost the same on account of adverse possession”. In the following para 13 the
plaintiff averred “that it was being given out that the plaintiff made a gift of 1/16th share of the property described in Schedule B in her favour but it may be submitted that this claim or allegation is false. The gift deed which was prepared by the plaintiff in favour of Smt. Sarla Devi remained a paper transaction. Neither the gift was accepted by Smt. Sarla Devi nor she ever entered into possession of the property or any part of it which was alleged to have been gifted to her. In the circumstances Smt. Sarla Devi has no share in the property in dispute.”
5. The relief which the plaintiff has sought in the present suit is to the effect that the property shown in Schedule ‘A’ be partitioned in accordance with the shares given in para 8 of the plaint. In this para 8 the plaintiff claims to be owner in possession of 1/4th share in the entire property.
6. The learned single Judge, trying the suit, came to the conclusion that the plaintiff had failed to establish that he had 1/4th share in the property. According to him, the plaintiff was entitled to 3/16th share of the property while Smt. Sarla Devi (the second defendant) was found entitled to 1/16th share in it. As far as the first defendant, namely, Shiv Saran Singh Thakur is concerned, the conclusion recorded by the learned Judge was that he was entitled to 1/2 share in the property.
7. In the operative portion it has been directed that the Commissioner (appointed by the Court) would submit his report for the partition of the plaintiffs 3/16th share in the property.
8. R.F.A. No. 610 of 1978 has been filed by the first defendant, Shiv Saran Singh Thakur, assailing the decree of the learned Judge, principally on the ground that in view of the fact that entire property was in the tenancy of Thakur Hotel (Pvt. Ltd.), no partition of the property could take place without the dissolution of the Company running the Hotel in the entire premises. Also, that keeping in view the entire property and its use by the co-owners, the same was not capable of being partitioned.
9. R.F.A. No. 611 of 1978 has been filed by plaintiff Ram Swarup. According to him,
the conclusion of the learned single Judge that Smt. Sarla Devi had 1/16th share in the property was not sustainable in law. Further, that he was entitled to 1/4th share in the entire property as claimed in the suit.
10. In this Court Shri Kedar Ishwar has appeared for plaintiff Ram Swarup. He has made two submissions before us. The first of these is that the decree passed in Suit No. 121 of 1955 could not be said to be declarative of 1/16th share of Smt. Sarla Devi in the entire property. As such, the learned single Judge fell in error in taking the view that the share of Smt. Sarla Devi to that extent had been recognised in the decree passed in suit No. 121 of 1955.
11. Expanding this submission it was urged by Shri Kedarishwar that having regard to the fact that Smt. Sarla Devi did not either file a written statement or put in contest in Suit No. 121 of 1955 and the only plea taken on behalf of other defendants (which included Shri Ram Swarup) in that suit, being that she was not a necessary party as she had no share in the property, the requisite issue was not framed by the learned Senior Sub Judge. The only issue that was framed was whether Smt. Sarla Devi was a necessary party in that suit or not. The finding that she was a necessary party could not be read as amounting to a declaration that she had 1/16th share in the property.
12. We are not impressed by this submission. It is evident from the copy of the judgment in Suit No. 121 of 1955 (Ex.PW 2/2) and the actual decree drawn in that suit (Ex.PW 2/3) that the conclusion recorded by the learned Senior Sub Judge was that Smt. Sarla Devi was a necessary party to the suit, inasmuch as she had 1/16th share on account of the deed of gift made in her favour by plaintiff Ram Swarup. The operative portion of the decree (Ex.PW 2/3) mentions in clear terms that the 4th defendant (Smt. Sarla Devi) had 1/16th share in the property. Since, admittedly, the present plaintiff was a party to that suit and did not assail the decree by filing an appeal against it, it is difficult to sustain the plea that the decree in Suit No. 121 of 1955 does not declare that Smt. Sarla Devi had 1/16th share in the property.
13. As an alternative, Shri Kedar Ishwar urged that, inasmuch as the operative portion of the decree in Suit No. 121 of 1955 only directed the separation of 1/4th share of the plaintiffs of that suit, the present plaintiff was not affected, as far as his share was concerned, by the declaration to that effect. As such, it was not necessary for him to file an appeal against that decree. This submission overlooks that in a partition suit each of the parties is a plaintiff as well as a defendant. Merely because the shares of each of the parties is not directed to be separated under the decree, it cannot be said that the declaration about the share of the parties made in the decree loses its significance or is, in any sense, less binding upon the parties whose shares are not directed to be separated in the operative portion thereof. After the declaration about the extent of the share in the preliminary decree, it is always open to the parties, whose shares have been declared, to take steps, in accordance with law, for getting their shares separated. Viewed in this light, it cannot be said that it was not necessary for Ram Swarup to have assailed the decree passed in Suit No. 121 of 1955 if he wanted to take the stand that he was not bound by the recognition of 1/16th share of Smt. Sarla Devi in the entire property.
14. The above submission failing, Shri Kedar Ishwar urged with some emphasis that, in any case, plaintiff Ram Swarup perfected his title even in respect of 1/16th share of Smt. Sarla Devi by adverse possession. The precise submission was that Smt. Sarla Devi never asserted any proprietary rights in relation to her 1/16th share and it was only the plaintiff who was asserting it openly and continuously for a very long period of time. As such, there was an ouster of Smt. Sarla Devi even if it were to be accepted that she was a co-owner in the property.
15. The plea of adverse possession has been taken in para 12 of the plaint. We have already extracted this paragraph in the earlier part of this judgment. By itself, it does not disclose the actual period of time during which Smt. Sarla Devi was to be treated to have been ousted from the property. The allegation is only to the effect that Smt. Sarla Devi
never entered into physical or constructive possession of the properly and further that plaintiff Ram Swarup was in adverse possession of the property. The pleading, in our opinion, is not sufficient in the eye of law to constitute a plea of adverse possession by ouster.
16. Even if we were to take the view that the plea of adverse possession has been taken by plaintiff Ram Swarup in accordance with law in para 12 of the plaint, we have to examine the question whether the plea has actually been established.
17. Shri Kedar Ishwar drew our attention to the fact that Smt. Sarla Devi had not come forward to file a written statement or to oppose the assertions made in the various paras of the plaint in the instant suit as well. He also drew our attention to the fact that the evidence in the case shows that it was the plaintiff who was in possession over the property in suit and had been exercising all the rights of a proprielor in respect thereof. It has been urged that in this state of evidence it should be presumed that Smt. Sarla Devi had been ousted from the property.
18. For upholding the plea of adverse possession, where parties are co-owners of the property and, more so, where the relationship between them is that of husband and wife, law requires strict proof. The essential elements for upholding such a plea, in a case where it is founded upon ouster of a co-owner, are that there should be “evidence of open assertions of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other so as to constitute ouster.”
19. The law on the subject is settled. We may only refer to the decision of the Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, where (in para 4) it was observed that : —
“…..But it is well settled that in order to
establish adverse possession of one co-heir as against another 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-heir 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 cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. (See Corea v. Appuhamy, 1912 AC 230 (C). It is a settled rule of 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. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be interfered when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 at p. 47(D) quotes, apparently with approval, a passage from Culley v. Doed Taylerson, (1840)3 P&D 539: 52 RR566(E) which indicates that such a situation may well lead to an inference of outster “if other circumstances concur”. (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F)). It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”
20. This principle has been reiterated in several decisions. It is not necessary for us to notice them or burden this judgment by multiplying precedents. When asked, Shri Kedar Ishwar said that the act of hostile animus, on the part of plaintiff Ram Swarup in relation to 1/16th share of Smt. Sarla Devi, was the assertion by him in the written statement filed in suit No. 121 of 1955 that she had no share in the property. It is urged
that the hostile animus was to be deemed to continue as far as the plaintiff was concerned. So far as Smt. Sarla Devi was concerned, she would be presumed on account of the plea taken by plaintiff Ram Swarup in the earlier suit, to have notice that plaintiff Ram Swarup was denying that she had any right in the property. In spite thereof, according to the submission of Shri Kedar Ishwar, she did not choose to controvert the same. She did not do so even when a similar declaration of hostile animus was made by plaintiff Ram Swarup in the present suit. She has remained absent from the litigation all along. The declaration of the hostile animus, as far back as in the year 1956 when the written statement was filed in suit No. 121 of 1955, was followed by continuous and uninterrupted possession of the property (including the share of Smt. Sarla Devi) by plaintiff Ram Swarup and exercise by him of right of an owner openly. Coupled with these circumstances was the fact that Smt. Sarla Devi never took any steps in assertion of her own right over any part of the property. This, according to Shri Kedar Ishwar, was enough to establish the adverse possession of plaintiff Ram Swarup in relation to the 1/16th share of Smt. Sarla Devi in the property. Shri Kedar Ishwar has placed reliance upon some decisions to which he shall advert later.
21. The plea of ouster pre-supposes that the right of the co-owner in the property in dispute is not in doubt or is admitted by the parties setting up the plea of ouster. The gift which was made by plaintiff Ram Swarup in favour of Smt. Sarla Devi in regard to 1/16th share in the property was characterised by him as a paper transaction not only in the earlier suit but also in the present suit. While filing a written statement in Suit No. 121 of 1955 what was said by plaintiff Ram Swarup was that Smt. Sarla Devi was not a necessary party as she had no share in the property for the partition whereof that suit had been brought. That plea was negatived The learned Senior Sub Judge held that Smt. Sarla Devi was a necessary party for the reasons that she was a co-owner having 1/16th share in the property. The result of the decision recorded by the learned Sub Judge was that the plea that Smt. Sarla Devi had no share in the
property or the assertion to that effect by plaintiff Ram Swarup was negatived by the Court and it was found that she was a co-owner, along with plaintiff Ram Swarup, of the property. The assertion of hostile animus by plaintiff Ram Swarup in respect of 1/16th share of Smt. Sarla Devi in the property was negatived in the sense that it was found that this assertion was incorrect and that, in reality Smt Sarla Devi was a co-owner of the property with plaintiff Ram Swarup. No challenge to the recognition of Smt. Sarla Devi, being a co-owner, in the property by the decree passed in Suit No. 121 of 1955 was made by the plaintiff Ram Swarup. Obviously, therefore, he will be treated to have acquiesced in the situation that Smt. Sarla Devi was a co-owner of the property.
22. In order to succeed in the plea now set up by plaintiff Ram Swarup that there was ouster of Smt. Sarla Devi some such act on his part must be found to exist by which it can be inferred that there was a fresh assertion of hostile animus by Ram Swarup after the decree in Suit No. 121 of 1955. The evidence in the case is singularly silent about this aspect of the case.
23. We have been taken through the evidence on record. We find that there is evidence establishing the fact that plaintiff Ram Swarup has been in possession over the property and is exercising the rights of ownership in respect thereof for a very long time. Will that, by itself, amount to the ouster of Smt. Sarla Devi is the question which we shall now examine. We have noticed the dictum of the Supreme Court in P. Lakshmi Reddy (AIR 1957 SC 314). Three elements are necessary for establishing the plea of ouster. Firstly, there should be a declaration of a hostile animus, secondly, there should be uninterrupted and long possession of the party setting up the plea of ouster and, thirdly, the rights of ownership should be exercised openly by the party setting up the plea of ouster. Of these elements, we find that the second and the third may be held to be present in the instant case. But that would not be of advantage to plaintiff Ram Swarup to the extent of getting a declaration from us that he had perfected his title to 1/16th share of
Smt. Sarla Devi in the property. It is trite that a co-owner is in possession on behalf of all the co-owners. Any act of ownership or treatment of the property as an owner will have to be held to be on behalf of the entire body of co-owners. This presumption is rebutted only where it is found that there has been ouster of some other co-owner in the sense in which it is understood in law. Reeognition of the plea of ouster presupposes that there has been a hostile animus, expressed or implied, on the part of the co-owner setting up the plea of ouster as against the co-owner against whom it is so set up. The legal position is not in doubt. In a case where the co-owners are husband and wife, proof of a stricter nature is required for upholding the plea of ouster. (See Shambhu Prasad Singh v. Most Phool Kumari AIR 1971 SC 1337, Bhutkani Nath v. Mt. Kamaleshwari Nath, AIR 1972 Assam 15 and Krishan v. Krishanoo, ILR (1985) Him Pra 109 : (AIR 1985 Him Pra 103).
24. In Ibramsa Rowther (Minor) v. Sk. Meerasa Rowther, AIR 1972 Mad 467 a Division Bench of the Madras High Court came to the conclusion, after a survey of the evidence on the record, that the portion of the property in dispute had ceased to be joint property of the parties. On account of a family arrangement, various co-owners were in exclusive possession of separate portions of the property and had become exclusive owners thereof. After this finding, the learned Judges proceeded to examine the case of ouster of one of the co-owners by the other. They felt that the exclusive possession of the defendants for a considerable length of time, which was an important element in inferring ouster, could lead to a presumption of ouster of the plaintiffs and the doctrine of lost grant could be invoked in favour of the defendants. We may only mention that after the conclusion that the disputed portions of the property had become the exclusive property of the defendants, on account of the family arrangement, the various observations which the learned Judges made on the question of ouster were unnecessary and were in the nature of an obiter.
25. Akbaralli Mir Inayatalli v. Abdul Ajiz Mirsaheb Jahagirdar, AIR 1920 Bom 61 was a
case where a Division Bench of the Bombay High Court, in effect, took the view that where the parties have litigated earlier and the one setting up adverse possession has lost in that litigation, the plea of adverse possession could only be set up by it again after a fresh starting point of the period of limitation for acquisition of title by adverse possession could be established by it, subsequent to the decree in the earlier suit. Likewise, in Lala Nand Lal v. Sunder Lal, AIR 1944 All 17 a Division Bench of the Allahabad High Court held that the effect of the institution of a suit within limitation is to destroy the previously existing adverse possession with effect from the date of institution or at any rate to suspend it from that date until the suit is finally decided one way or the other. Further, when immature title of the judgment debtor is assailed in a suit, the auction purchaser, who is subsequently made a party, cannot lack on his own adverse possession to that of the I judgment debtor. Similarly, in Phul Kumari Devi v. Sambhu Prasad Singh, AIR 1965 Patna 87, a Division Bench of the Patna High Court observed that “actual participation in the rents and profits of a property held in common is not necessary to interrupt adverse possession. The possession of a co-owner is not wrongful as that of a trespasser and that even momentary interruption is sufficient to break up the continuity of adverse possession and in such cases of interruption, the prior possession of the claimant cannot be tacked on to his subsequent possession for upholding his claim of title by adverse possession.”
26. The principle underlying these decisions is that the interruption of a hostile animus on the part of one of the co-owners, inter alia, by intervention of a judicial decision will have to be followed by a fresh expression of hostile animus on the part of that co-owner for sustaining any claim founded upon the plea of adverse possession against another co-owner. It is not open to him to take advantage of the hostile animus expressed by him, prior to the stage of interruption, for setting up the plea of adverse possession against the other co-owner. Thus viewed, the alleged expression of hostile animus by plaintiff Ram Swarup by asserting, in the written statement filed by him in the earlier
Suit No. 121 of 1955, that Smt. Sarla Devi had no interest in the property, cannot be pleaded by him as expression of hostile animus, for purposes of the plea of adverse possession taken by him in the present suit. He will have to point to some other expression of hostile animus on his part in relation to 1/16th share of Sarla Devi. He has failed to do so. The consequence is obvious. His exclusive possession of the share of Smt. Sarla Devi and exercise by him of the rights of ownership in regard thereto, for a long period would not make his possession to be adverse. In law, it would be deemed to be on behalf of the co-owners. Consequentially the plea that plaintiff Ram Swarup had perfected his title even in respect of 1/16th share of Smt. Sarla Devi by ladverse possession must fail.
27. On the aforesaid view, R.F.A. No. 611 of 1978 deserves to fail.
28. In regard to R.F.A. No. 610 of 1978, filed by Shiv Saran Singh Thakur, we may only observe that the mere fact that a Company by the name of M/s. Thakur Hotel (Pvt) Ltd. was running the business of a Hotel in the entire premises would not invalidate the partition decree. The presence of a tenant in the premises does not preclude the co-owners from getting their shares in a property partitioned by declaration thereof. It also does not preclude the co-owners from getting a demarcation of their shares in the property. Constructive possession of the demarcated shares can always be given to them in compliance with the decree of partition. We find no error in the view taken by the learned single Judge while deciding preliminary issue No. 4 in this suit. The appeal is devoid of any merit.
29. No question, other than these, was raised before us in either of the two appeals. Both the appeals are dismissed. We, however, leave the parlies to bear their own costs in this Court.