{"id":75397,"date":"2007-02-20T00:00:00","date_gmt":"2007-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/des-raj-ors-vs-bhagat-ram-dead-by-lrs-ors-on-20-february-2007"},"modified":"2017-05-28T05:29:40","modified_gmt":"2017-05-27T23:59:40","slug":"des-raj-ors-vs-bhagat-ram-dead-by-lrs-ors-on-20-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/des-raj-ors-vs-bhagat-ram-dead-by-lrs-ors-on-20-february-2007","title":{"rendered":"Des Raj & Ors vs Bhagat Ram (Dead) By Lrs. & Ors on 20 February, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Des Raj & Ors vs Bhagat Ram (Dead) By Lrs. & Ors on 20 February, 2007<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  5846 of 2000\n\nPETITIONER:\nDes Raj & Ors\n\nRESPONDENT:\nBhagat Ram (Dead) By LRs. & Ors\n\nDATE OF JUDGMENT: 20\/02\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. Sinha, J.\n<\/p>\n
 \tThe defendants are the appellants.  The parties were co-owners.  The
\nsuit properties are situate in two villages; 232 bighas and 10 biswas in
\nvillage Samleu and 76 bighas in village Punjoh.\n<\/p>\n
 \tIt is not in dispute that whereas the plaintiffs – respondents had all
\nalong been in possession of the property situate in village Samleu, the
\nappellants are in possession of village Punjoh.  Allegedly, in the revenue
\nsettlement record of rights prepared in the year 1953, joint ownership of
\nlands situate in village Samleu was recorded.  However, it was observed
\ntherein that if the predecessors of the appellants “do not give share” to the
\nplaintiff  respondent in the land in village Punjoh,  the plaintiff-respondent
\nmay ask for the review of the order.\n<\/p>\n
 \tOn the plea that the land situate in village Punjoh was jointly
\nrecorded, it was urged that the entry in the said record of rights attained
\nfinality.\n<\/p>\n
 \tIndisputably, however, the appellants had filed two suits; one in the
\nyear 1968 and another in 1978.  In the aforementioned suits, a prayer for
\npartition and separate possession was claimed by the appellants herein in
\nrespect of 2\/3rd share in the entire land situate in village Samleu.
\nAdmittedly, the 1968 suit was dismissed in 1977 and the 1978 suit was
\ndismissed in 1984.\n<\/p>\n
 \tPlaintiff  respondent continued to possess the properties situate at
\nvillage Samleu.\n<\/p>\n
 \tPlaintiff  respondent filed a suit in the year 1986 for declaration of
\nhis title as also permanent injunction.\n<\/p>\n
\tIn paragraph 8 of the plaint, the plea of adverse possession was raised,
\nwhich reads as under :\n<\/p>\n
\t“The \tplaintiff has been in possession as owner in
\nadverse possession on the land of the defendant No. 1 to
\n12, area 155 Bigha  0 Biswa of the land for 12 years.
\nHence it is appropriate to declare the possession and
\nownership by way of adverse possession of the plaintiff
\non the land in disputed land and the defendant Nos. 1 to
\n22 are intending to alienate the land on the basis of mere
\nentry in the papers.  Therefore, it is proper to restrain the
\ndefendant Nos. 1 to 22 from selling, leasing out and
\ntransferring the land by any means.”\n<\/p>\n
\tThe Trial Court in view of the pleadings of the parties framed the
\nfollowing issues:\n<\/p>\n
“1. Whether the plaintiff has become owner of the suit
\nproperty by adverse possession as alleged?\n<\/p>\n
2. Whether the defendants are in joint possession of the
\nsuit property as co-sharers?\n<\/p>\n
3. Relief.”\n<\/p>\n
 \tBy reason of a judgment and decree dated 9.10.1987, the learned Trial
\nJudge opined that the plaintiff had been in exclusive continuous peaceful
\npossession of the suit land to the exclusion of the other co-owners prior to
\nsettlement which took place in the year 1953.\n<\/p>\n
 \tAnalysing the evidences brought on records, the learned Trial Judge
\nopined:\n<\/p>\n
“As per statements PW-1 Bhagat Ram plaintiff and
\nHishiara and others during settlement in the year 1953, as
\nper copies of Tankih No. 4 Ex. P-4, No. 10 Ex. P-16 and
\nNo. 11 Ex. P-15, it is evident that present plaintiff Bhagat
\nRam had asserted his hostile possession and ousters of
\nother co-owners even during settlement in the year 1953
\nand as per the copy of plaint Ex. P-1 in civil suit No.
\n42\/74 instituted by Hushiara and others, Bhagat Ram had
\ndenied the title of other co-owners on which suit for joint
\npossession against present plaintiff Bhagat Ram was filed
\non 2-3-1968 for joint possession.  Bhagat Ram has
\ndenied the title of other co-owners during May, 1967
\nwhich led other co-owner to file suits for joint possession
\nagainst present plaintiff Bhagat Ram which were
\nadmittedly dismissed as abatted on 24-12-1977 Ex. P-11
\nand 11-01-1984 Ex. P-12.  It is thus evident that Bhagat
\nRam had been making open assertion of his hostile title
\ncoupled with exclusive possession and enjoyment to the
\nknowledge of other co-owners which is essential for
\nadverse possession against co-owners was held in
\nKrishan and others, Appellants vs. Krishanoo and others
\nRespondents AIR<\/a> 1985 H.P. 103″\n<\/p>\n
 \tIt had been categorically held that assertion of exclusive possession by
\nthe plaintiff was clear and explicit and the defendants  appellants had actual
\nknowledge thereof.\n<\/p>\n
 \tThe First Appellate Court dismissed the appeal preferred by the
\nappellants herein affirming the said view holding that ‘no arrangement was
\narrived at between the co-sharers’ to the effect that the respondents would be
\ncultivating the land on behalf of other co-sharers stating:\n<\/p>\n
“Be it noticed that no such arrangement was shown to
\nhave been ever agreed by the parties nor the contesting
\ndefendants have pleaded any such arrangement in the
\nwritten statement.  The arrangement contemplated in
\nTankih [Ex. P-2] with regard to denial of share of Bhagat
\nRam in the joint land of village Panjoh, was a reason for
\nBhagat Ram to claim an exclusive title in the disputed
\nland situate at village Samleu and the offer itself was not
\na part of any mutual arrangement.  Since the contesting
\ndefendants did not allow Bhagat Ram to have a share in
\nthe joint land of Panjoh, Bhagat Ram staked his claim of
\nexclusive ownership in the disputed land situated at
\nSamleu Pargna Chuhan and did not allow the contesting
\ndefendants to have any share in the disputed land of
\nSamleu for that reason.  This was a clear and open denial
\nof the title of the contesting defendants in the disputed
\nland, may be for the reason that the contesting defendants
\nhad not allowed the plaintiff to have a share in the joint
\nland of village Panjoh.  So, it is not correct that the
\nplaintiff was in possession of the disputed land under
\nsome mutual arrangement.”\n<\/p>\n
 \tIt was further held that repudiation of title of the defendant by the
\nplaintiff was open and hostile.\n<\/p>\n
 \tIn the Second Appeal preferred by the appellants, the High Court
\nwhile determining the same, opined:\n<\/p>\n
“In the present case, the plaintiff has specifically pleaded
\nthat he is in continuous possession of the land in dispute
\nin open and unequivocal denial of title of defendants No.
\n1 to 22-A, since prior to 1952-53.  As stated above, the
\nlongstanding revenue entries since 1952-53 record the
\nplaintiff to be in exclusive possession of the land in
\ndispute.\n<\/p>\n
Ex. P.1 is the copy of the plaint of the suit instituted by
\nsome of the defendants in the year 1968, against the
\npresent plaintiff.  This plaint is dated 29.2.1968.  By
\nvirtue of this suit, the plaintiffs therein, who are the
\ndefendants in the present case, had prayed for joint
\npossession of the land, which is the subject matter of this
\nsuit.  In para 3 of this plaint, it has been averred that the
\nplaintiff in the present case, was in exclusive possession
\nof the land in dispute and that he was asserting and
\nclaiming himself to be the sole owner thereof.”\n<\/p>\n
 \tReferring to the two suits filed by the appellants herein, the High
\nCourt held :\n<\/p>\n
“Therefore, on the basis of the material coming on the
\nrecord, especially in the form of Ex. P-1, Ex. DW 2\/A,
\nEx. P-11 and Ex. P-12, it is established that the plaintiff
\nis coming in adverse possession of the land in dispute in
\ncomplete denial of the title of the defendants No. 1 to 22-
\nA and to their knowledge at least since 1968.  The suit
\nout of which the present appeal has arisen was filed on
\n20.8.1986, that is, after about 18 years from the date of
\ndenial of title of defendants 1 to 22-A by the plaintiff.
\nThe adverse possession as on the date of suit having
\ncontinued for more than the statutory period of twelve
\nyears has, thus, ripened into ownership.”\n<\/p>\n
 \tMr. R.K. Dash, learned senior counsel appearing on behalf of the
\nappellants, would submit that the parties hereto being co-sharers, it was
\nobligatory on the part of the plaintiff to plead and prove ouster.  According
\nto the learned counsel, the learned Trial Judge as also the Appellate Courts
\ncommitted a manifest error in arriving at the conclusion that the plaintiff
\nperfected his title by adverse possession.\n<\/p>\n
 \tMr. E.C. Agrawala, learned counsel appearing on behalf of the
\nrespondents, on the other hand, supported the impugned judgments.\n<\/p>\n
 \tWe have noticed hereinbefore the factual aspects of the matter which
\nare neither denied nor disputed.  Admittedly, the plaintiff  respondent had
\nremained in possession for a long time i.e. since 1953.\n<\/p>\n
 \tIt may be true that in his plaint, the plaintiff did not specifically plead
\nouster but muffosil pleadings, as is well known, must be construed liberally.
\nPleadings must be construed as a whole.\n<\/p>\n
 \tIn Devasahayam (D) by LRs. v. P. Savithramma and Ors.<\/a> [(2005) 7
\nSCC 653], this Court opined:\n<\/p>\n
“The pleadings as are well-known must be construed
\nreasonably. The contention of the parties in their
\npleadings must be culled out from reading the same as a
\nwhole. Different considerations on construction of
\npleadings may arise between pleadings in the mofussil
\ncourt and pleadings in the Original Side of the High
\nCourt.”\n<\/p>\n
 \tOnly because the parties did not use the terminology which they
\nshould have, ipso facto, would not mean that the ingredients for satisfying
\nthe requirements of statute are absent.  There cannot be any doubt
\nwhatsoever that having regard to the changes brought about by Articles 64
\nand 65 of the Limitation Act, 1963 vis-`-vis Articles 142 and 144 of the
\nLimitation Act, 1908, the onus to prove adverse possession would be on the
\nperson who raises such a plea.  It is also furthermore not in dispute that the
\npossession of a co-sharer is presumed to be possession of the other co-
\nsharers  unless contrary is proved.\n<\/p>\n
 \tA plea of adverse possession or a plea of ouster would indisputably be
\ngoverned by Articles 64 and 65 of the Limitation Act.\n<\/p>\n
 \tIn a case of this nature, where long and continuous possession of the
\nplaintiff-respondent stands admitted, the only question which arose for
\nconsideration by the courts below was as to whether the plaintiff had been in
\npossession of the properties in hostile declaration of his title vis-`-vis his co-
\nowners and they were in know thereof.\n<\/p>\n
 \tMere assertion of title by itself may not be sufficient unless the
\nplaintiff proves animus possidendi.  But the intention on the part of the
\nplaintiff to possess the properties in suit exclusively and not for and on
\nbehalf of other co-owners also is evident from the fact that the defendants
\nappellants themselves had earlier filed two suits.  Such suits were filed for
\npartition.  In those suits  the defendants  appellants claimed themselves to
\nbe co-owners of the plaintiff.  A bare perusal of the judgments of the courts
\nbelow clearly demonstrates that the plaintiff had even therein asserted
\nhostile title claiming ownership in himself.  The claim of hostile title by the
\nplaintiff over the suit land, therefore, was, thus, known to the appellants.
\nThey allowed the first suit to be dismissed in the year 1977.  Another suit
\nwas filed in the year 1978 which again was dismissed in the year 1984.  It
\nmay be true, as has been contended on behalf of the appellants before the
\ncourts below, that a co-owner can bring about successive suits for partition
\nas the cause of action therefor would be continuous one.  But, it is equally
\nwell-settled that pendency of a suit does not stop running of ‘limitation’.
\nThe very fact that the defendants despite the purported entry made in the
\nrevenue settlement record of rights in the year 1953 allowed the plaintiff to
\npossess the same exclusively and had not succeeded in their attempt to
\npossess the properties in Village Samleu and\/or otherwise enjoy the usufruct
\nthereof,  clearly go to show that even prior to institution of the said suit the
\nplaintiff-respondent had been in hostile possession thereof.\n<\/p>\n
 \tExpress denial of title was made by the plaintiff-respondent in the said
\nsuit in his written statements.  The courts, therefore, in the suits filed by the
\ndefendants  appellants, were required to determine the issue as to whether
\nthe plaintiff- respondent had successfully ousted the defendants  appellants
\nso as to claim title himself by ouster of his co-owners.\n<\/p>\n
 \tIn any event the plaintiff made his hostile declaration claiming title
\nfor the property at least in his written statement in the suit filed in the year
\n1968.  Thus, at least from 1968 onwards, the plaintiff continued to
\nexclusively possess the suit land with knowledge of the defendants
\nappellants.\n<\/p>\n
 \tThe parties went to trial fully knowing their respective cases.  The fact
\nthat they had been co-owners was not an issue.  The parties proceeded to
\nadduce evidences in support of their respective cases. Defendants
\nAppellants, keeping in view of the fact that they have unsuccessfully been
\nfiling suit for partition, were also not prejudiced by reason of purported
\nwrong framing of issue.  They knew that their plea for joint possession had
\nbeen denied.  They were, therefore, not misled.  They were not prevented
\nfrom adducing evidence in support of their plea.\n<\/p>\n
 \tArticle 65 of the Limitation Act, 1963, therefore, would in a case of
\nthis nature have its role to play, if not from 1953, but at least from 1968.  If
\nthat be so, the finding of the High Court that the respondent perfected his
\ntitle by adverse possession and ouster cannot be said to be vitiated in law.\n<\/p>\n
 \tMr. Das has relied upon a decision of this Court in Saroop Singh v.
\nBanto and Others<\/a> [(2005) 8 SCC 330], in which one of us was a member.
\nThere is no dispute in regard to the proposition of law laid down therein that
\nit was for the plaintiff to prove acquisition of title by adverse possession.\n<\/p>\n
\tWe are also not oblivious of a recent decision of this Court in
\nGovindammal v. R. Perumal Chettiar & Ors.<\/a> [2006 (11) SCALE 452]
\nwherein it was held:\n<\/p>\n
“In order to oust by way of adverse possession, one
\nhas to lead definite evidence to show that to the hostile
\ninterest of the party that a person is holding possession
\nand how that can be proved will depend on facts of each
\ncase”\n<\/p>\n
 \tYet again in T. Anjanappa and Others v. Somalingappa and Another<\/a>
\n[(2006) 7 SCC 570], it was held:\n<\/p>\n
“12. The concept of adverse possession contemplates a
\nhostile possession i.e. a possession which is expressly or
\nimpliedly in denial of the title of the true owner.
\nPossession to be adverse must be possession by a person
\nwho does not acknowledge the other’s rights but denies
\nthem. The principle of law is firmly established that a
\nperson who bases his title on adverse possession must
\nshow by clear and unequivocal evidence that his
\npossession was hostile to the real owner and amounted to
\ndenial of his title to the property claimed. For deciding
\nwhether the alleged acts of a person constituted adverse
\npossession, the animus of the person doing those acts is
\nthe most crucial factor. Adverse possession is
\ncommenced in wrong and is aimed against right. A
\nperson is said to hold the property adversely to the real
\nowner when that person in denial of the owner’s right
\nexcluded him from the enjoyment of his property.”\n<\/p>\n
 \tIn this case, however, a finding of fact has been arrived at by all the
\nthree courts.  They have analysed the evidences on record.  They have taken
\ninto consideration the correct legal position operating in the field as also
\nconduct of the parties.  They, in our opinion, applied the correct principles of
\nlaw as regards ‘burden of proof’.\n<\/p>\n
 \tWe, having regard to the peculiar fact obtaining in the case, are of the
\nopinion that the plaintiff- respondent had established that he acquired title by
\nousting the defendants  appellants by declaring hostile title in himself
\nwhich was to the knowledge of his co-sharers.\n<\/p>\n
 \tWe, therefore, find no infirmity in the impugned judgment.  The
\nappeal is allowed.   In the facts and circumstances of the case, there shall,
\nhowever, be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Des Raj & Ors vs Bhagat Ram (Dead) By Lrs. & Ors on 20 February, 2007 Author: S Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 5846 of 2000 PETITIONER: Des Raj & Ors RESPONDENT: Bhagat Ram (Dead) By LRs. & Ors DATE OF JUDGMENT: 20\/02\/2007 BENCH: S.B. Sinha […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-75397","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDes Raj & Ors vs Bhagat Ram (Dead) By Lrs. & Ors on 20 February, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/des-raj-ors-vs-bhagat-ram-dead-by-lrs-ors-on-20-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Des Raj & Ors vs Bhagat Ram (Dead) By Lrs. & Ors on 20 February, 2007 - 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