Gopathy and Others vs Seshachala Naidu and Others

K.A. Swami, C.J.—The question for consideration in this appeal is as to whether the plaintiffs can be held to have lost their title by reason of

ouster by the second defendant.

Learned single Judge has held that Meenakshi and Jayalakshmi were given their share in the income from the suit properties till Jayalakshmi died

in the year 1965. Learned single Judge has also referred to the evidence adduced by the plaintiffs. P. W. 1, in the course of cross-examination, has

stated that Meenakshi and Jayalakshmi were given their share in the income from the suit properties. Learned single Judge has also referred to Ex.

A-16 written by the first defendant, in which it is stated that Jayalakshmi obtained her share in the income from the suit properties. Accordingly,

after referring to the provisions contained in Rule 2262 of French Code Civil as applicable to Pondicherry, learned single Judge has held that the

plaintiffs have not lost their right to the suit properties and that the defendants have failed to prove that they perfected their title by adverse

possession.

The relationship between the parties and also the co-ownership of the suit properties by Duraisamy and Chinnasamy are not in dispute. The

aforesaid two persons, by name Duraisamy and Chinnasamy, jointly purchased the suit properties under a registered sale deed, dated 21.10.1922

and enjoyed them jointly. Duraisamy died in the year 1944, leaving behind him his two daughters by name, Jayalakshmi and Meenakshi Ammal,

who is the first defendant in the suit. Ramachandra Naidu, the 2nd defendant, is the son of the other joint owner, Chinnasamy. Meenakshi, the 1st

defendant, is married to the 2nd defendant. Jayalakshmi died in the year 1965. The plaintiffs are the heirs of Jayalakshmi, who seek partition and

separate possession of their respective shares in the suit properties.

The case of the defendants is that after the death of Duraisamy, they have established a rice mill in the suit properties in the year 1956 and

divided the suit properties in the year 1956 and divided the suit properties among defendants 1 and 2 and their children and also mortgaged the suit

properties under Exs.B-1 to B-12, as such, they have been in exclusive possession of the suit properties to the complete exclusion of the plaintiffs

and their predecessors.

As already pointed out, learned single Judge has held that Jayalakshmi received her share in the income from the suit properties till she died in

the year 1965. The suit has been filed in the year 1980. The plaintiffs and the defendants are the co-owners of the suit properties. The possession

of one owner is presumed to be the possession of all the co-owners, unless it is established that the possession of one co-owner is in denial of title

of other co-owners and the possession has been in hostility to the co-owners by exclusion of them. Ouster is an unequivocal act of assertion of

title. Therefore, it has got to be open denial of title to parties, who are entitled to it by excluding and ousting them. (See Syed Shah Ghulam Ghouse

Mohiuddin and Others Vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri (Died) by Lrs. and Others, .)

A mere possession of one co-owner, however long it be, will be, will not militate against the title of the other co-owner because, ""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 their properties. Ouster of the non-possessing coheir 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. Then 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 co-heir 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.

Appunamy 1912 A.C. 230.) 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

inferred 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 P.C. 44 (d) quotes, apparently with

approval, a passage from Culley v. Deod Taylerson (1840)3 P and D 539 which indicate that such a situation may well lead to an inference of

ouster ""if other circumstances concur"". (See also: AIR 1931 48 (Privy Council) 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. Dr. J.N. Banavalikar Vs. Municipal

Corporation of Delhi and another, .

In the instant case, as already pointed out, learned single Judge has recorded a finding of fact that Jayalakshmi received her share in the income

from the suit properties till she died in the year 1965. Therefore, even the establishment of the rice mill in the year 1956 cannot be construed as the

starting point of limitation. At the most, in the instant case, when the defendants 1 and 2 and their children divided the suit properties among

themselves to the complete exclusion of the plaintiffs, in the year 1970, the said Act, if it has been done to the knowledge of the plaintiffs can be

construed as the starting point of limitation.

The suit has been filed in the year 1980 and, in the light of the provisions contained in Rule 2262 of the French Code Civil as applicable to

Pondicherry, all rights of action, whether in rem or in personam, are extinguished by prescription after 30 years, as such, the plaintiffs cannot be

held to have lost their right, title and interests in the suit properties, nor the defendants can be held to have perfected their title by adverse

possession. We see no ground to admit the appeal. It is, accordingly, rejected. The CM.P. is also rejected.