M.M. Shaffiulla vs P.A. Mahaboob Sahib and others

Sethuraman, J.—The unsuccessful plaintiff in O.S. No. 85 of 1968 in the District Court of Dharmapuri is the appellant. He filed a suit for

partition and separate possession of his share in the plaint schedule properties. His wife was one Balkhis Bi. Her father was Abdnl Azeez, who

died in 1934, leaving behind him the said Balkhis, (his daughter by his first wife), the second wife, Mahaboob Bibi, (the fourth defendant), his son,

Mahaboob John (the first defendant), and three other daughters Pyari Begum (the second defendant) Akila Begum (the 3rd defendant) and one

Aqpari, who had died unmarried before the suit. The claim of the plaintiff was that he was entitled to 7/40th share in the properties of Abdul Azeez

and that the sons and daughters of Abdul Azeez were in common enjoyment of the properties along with him. He claimed to have been realising a

share of the income through the first defendant till about two years prior to the suit, and as the defendants were denying his right, setting up a claim

of partition for themselves and perfection of title by adverse possession, he came forward with the present suit. The defendant stated that the

plaintiff''s wife, Balkhis Bi, died in the year 1945, that there was litigation among the heirs of Abdul Azeez in respect of the suit properties and that

after the conclusion of the same, the first defendant was in enjoyment of the properties. According to the defendants, after the death of Balkhis, the

plaintiff, who married again within a period of 2 or 3 months, was not having any benefit out of the properties, and they denied that he was

collecting a share in the income from the properties. They stated that on 1st June 1954 there was a partition arrangement as a result of which the

properties left by Abdul Azeez were divided among defendants 1 to 4, and that the plaintiff, who was aware of the transaction, acquiesced in the

said partition and did not set up any claim for a share in the properties. They pleaded ouster of the plaintiff for well over the statutory period.

Defendants 3 and 4, who had been allotted some properties in the said partition, had sold away their properties and the 5th defendant was in

possession of them since 30th April 1956. The 1st defendant himself stated that he had sold some items allotted to his share to different persons in

1953 and the plaintiff who had acquiesced in the said transaction did not appear to have made any protest.

Defendants 5 and 6, who were the alienees, stated that they were bona fide purchasers for adequate consideration and that they were in

possession of the properties since their respective purchases. They pleaded that the plaintiff was estopped by conduct from questioning the

transaction in their favour.

The seventh defendant, who was an alienee from the 1st defendant for certain items of properties, stated that he had been in possession of the

properties in his own right and that as the plaintiff was fully aware of the transaction, he could not question the title of the said defendant.

The 10th defendant, who was also an alienee under a sale deed dated 30th April 1966, similarly contended that the plaintiff''s claim for partition

could not be entertained.

Several issues were framed and the learned Subordinate Judge held that the plea of ouster set up by the defendants was well founded and that

the plaintiff''s case of participation in the income was devoid of any substance and that the vendors of the alienees had acted within their rights in

executing the sale deeds. The result was the dismissal of the suit, and it is this dismissal that is now challenged in the present appeal.

The learned counsel for the appellant-plaintiff submitted that the plaintiff''s wife and the other heirs of Abdul Azeez were co-owners of the

properties left by him and that the court below acted wrongly in holding that there was any ouster of the plaintiff''s rights for the statutory period so

as to disentitle him from claiming partition of the properties left by Abdul Azeez. The short point to be considered is whether the plea of ouster put

forward by the defendants was rightly entertained by the court below.

There can be no dispute about the fact that the plaintiff''s wife was one of the heirs of Abdul Azeez. She died in the year 1945, and there is also

no dispute that the plaintiff is the heir of the said Balkhis as her husband. We have first to consider the circumstances under which the plea of

adverse possession of one co-heir against another can be taken as established. The Supreme Court had occasion to consider this question in P.

Lakshmi Reddi v. Laksmi Reddi 1957-1-M.L.J. 16. One Hanimi Reddi filed a suit for recovery of certain properties left by one Venkata Reddi,

who died as an infant in the year 1927. During the lifetime of Venkata Reddi, the properties were being managed by and were in the possession of

his father''s maternal uncles. The suit filed by Hanimi Reddi was, therefore, for recovery of possession of the said properties in the year 1927, on

the death of Venkata Reddi. He got a decree in 1929 and, during the pendency of the suit, a receiver had been appointed in February 1926. He

obtained possession in January 1930, and continued in possession till he died in 1936. The plaintiff in the proceedings which ultimately came before

the Supreme Court, claimed that he and another person were reversioners of the same degree as Hanimi Reddi in respect of the properties left by

Venkata Reddi. The suit was filed originally in October 1941, and after the plaint was returned for presentation to the proper Court, it was

presented in the proper Court in December 1942. The question that came up for consideration by the Supreme Court was whether the present suit

by the reversioners of Venkata Reddi was within time. There also it was contended on behalf of the defendant that they had perfected title by

adverse possession for over the statutory period. Dealing with this aspect their Lord ships observed at page 49 as follows:--

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 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. Appuhamy 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.

It was also pointed out that the burden of making out ouster was on the person claiming to displace the lawful title of a co-heir by his adverse

possession.

An earlier Bench decision of this Court in Godavari Lakshminarasamma Vs. Godavari Rama Brahman and Others, stated the legal position in

the following words in the passage at pages 1409 and 1110:--

As laid down in the leading case of Corea v. Appuhami 1912 A.C. 230 the possession of the first defendant was in law the possession of his co-

owner, the plaintiff. Possession is never considered adverse if it be referred to a lawful title. Mere non-participation in the profits of the property by

one co-owner and exclusive possession by the other will not be sufficient to constitute adverse possession by the latter. To constitute ouster by a

co-owner, there must be an open and unequivocal denial of the title of the other co-parcener to the knowledge of the latter. Uninterrupted sole

occupation of common property without more must be referred to the lawful title possessed by the joint holder to use the joint estate and cannot

be regarded as an assertion of right to hold it as separate.

There are two lines of decisions on the aspect as to how ouster is to be considered or inferred. There are cases in which it has been laid down

that where the tenant-in-common or co-owner has not been in participation of the rents and profits for a considerable length of time, there is a

presumption that there has been an ouster. The possession in such cases has to be for a much longer period than the period of 12 years prescribed

under the statute of limitation. For instance, in Gangadhar v. Parashram ILR 29 Bom. 300 the period of exclusion was 44 years. In Bapatla

Venkata Row Vs. Bapatla Venkoba Row and Others, it was 55 years. In such cases, the presumption of ouster has been drawn. Venkatarama

Aiyar, J. as he then was, in Maddala Krishnayya v. Madella Udayalakshmamma 1953-2-M.L.J. 241 sitting singly, pointed out that the

presumption referred to above was analogous to one of a lost grant and was not to be applied when the transactions were recent and the primary

parties were alive. In that particular case the non-participation was only for a period of 18 years and the presumption of ouster was not drawn.

In the present case, the defendant would plead ouster either from 1945,--when Balkhis died and when the plaintiff married again within a

couple of months, or on 1st June 1954, when there was a partition among themselves. If we take the date of partition, then the suit which was filed

on 22nd October, 1966, would be just two years beyond the period of 12 years provided by the statute of limitation. Even if we take the date of

the death of Balkhis as the starting point of exclusion, the period is only 23 years. This is not, therefore, a case where the presumption authorised

by Culley v. Doe 113 E.R. 697 and the cases following it could be drawn.

In Mohammad Baqar and Others Vs. Naim-un-Nisa Bibi and Others, the Supreme Court pointed out in dealing with a case of adverse

possession among co-owners as follows at page 550:--

Then, there is the question of limitation. The parties to the action are co-sharers, and as under the law-possession of one co-sharer is possession of

all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and

ouster following thereon for tae statutory period.

(underlining ours)

It can thus be seen that the plea of ouster cannot be founded on any fugitive conduct on the part of a person putting it forward. It has to be rested

on an open and continuous exclusion of the co-owner, to his knowledge from enjoyment. The question as to whether the evidence in a particular

case is sufficient to infer ouster will depend on the facts in each case and no hard and fast rule can be laid down.

In Mohiadeen Abdul Khadir v. Md. Mohideen Umma ILR 1970-2 Mad 636 the distinction between the adverse possession as against a co-

owner and the adverse possession by a stranger has been indicated, In the case of adverse possession on the part of a stranger it is sufficient that

the possession is overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercised due

vigilance, to be aware of what was happening. But, in the case of a co-owner, to constitute adverse possession, there must be something more

than the mere exclusion of possession and perception of profits, and there must be denial of the rights of the co-owner over the property and that

denial must be made to his knowledge. Certain factors have been considered to be relevant in examining this aspect: viz, (1) dealings by the party

in possession treating the properties as exclusively belonging to him, and (2) the means of the excluded co sharer of knowing that his title has been

denied by the co-owner in possession. It is in this context that we have to examine the question as to whether there has been exclusion of the

plaintiff from participation of the properties to his knowledge.

The learned counsel for the respondents faintly put forward the contention that the adverse possession started even in the year 1943, at the

time when Balkhis died. There is absolutely no shred of evidence, circumstantial or otherwise, to support this plea. As already pointed out, mere

non-participation of the plaintiff on the death of his wife will not sustain the plea of adverse possession, as he is one of the co-owners of the

properties and the possession of one is the possession of all. The learned counsel for the respondents had thus to rely on the partition of 1st June

1954 as the commencement of ouster. That partition was entered into between defendants 1 to 4. The partition deed has been attested by 4

persons, viz., Basheer Ahmed, son of Abdul Jaffar Sahib, (2) Mohamed Ibrahim, son of Mohamed Aliasakila, (3) Mohamed Ibrahim, son of

Mohamed Kasim Sahib and (4) P. E. Rathinamanickam, son of Ekambara Achari. The document has been written by one Arulsami, the karnam of

a neighbouring village. The properties are situated in a village called Palakodu and the four witnesses to the deed are all persons who belong to the

said village. The plaintiff himself belongs to the same village. He was, even prior to the marriage of Balkhis, to him related to the family of the

defendants. It is not in dispute that some of these attestors are all persons who were related to him. Those of the attestors as are persons who

were alive, had also been examined in the trial. The document has been registered under the Indian Registration Act. Thus, this is not a case of a

fugitive conduct on the part of the defendants in making some arrangements among themselves without making it known to the outside world. The

transaction could not have been entered into in a more open manner. Though the plaintiff as P.W. 1 has stated that he was not aware of the

transaction and has also taken up the same stand in the plaint, still it is too much to accept his testimony on this aspect. It was, therefore, rightly

disbelieved by the court below. The subsequent conduct on the part of the defendants 1 to 4, who effected the partition among themselves, is also

consistent with their being absolute owners, of the said properties. Defendants 3 and 4 had alienated the entire properties obtained in the partition.

The first defendant also has parted with some of the items that he obtained in the partition Though some of the alienations are within the period of

12 years counted from the date of the plaint, still they show that the allottees of the properties asserted their absolute ownership of the properties.

The plaintiff stood by all these years and came forward with this suit only in October 1968. We consider that the court below rightly drew the

inference on the facts that the plaintiff had knowledge of all these transactions. Being residents of the same village, their houses being situate not far

from each other''s, the plea of ignorance of the transactions can only be taken as born out of convenience.

The conduct of ouster in such cases has necessarily to be unilateral, as there can be no possibility of any agreement to get ousted. Therefore,

the fact that the defendants partitioned the properties among themselves without reference to the plaintiff cannot by itself justify the plea that the

unilateral conduct on the part of the defendants will not amount to ouster. We are, therefore, satisfied on the facts that the court below rightly came

to the conclusion that the plaintiff was ousted to hi knowledge from the possession and enjoyment of the properties by the other co-owners viz, the

defendants right from June 1954,. Knowledge, unless admitted, can only be proved by circumstantial evidence and it is so proved in this case.

With reference to this aspect it may be appropriate to examine a Full Bench decision of this Court in T.P.R. Palania Pillai (died) and Others

Vs. Amjath Ibrahim Rowther and Another, . In that case, the appellant had taken a usufructuary mortgage of some properties from defendants 1

and 3 who were members of a Mohamedan family and who were co-sharers in the mortgaged property. One of the questions that arose was

whether the usufructuary mortgage created by defendants 1 and 3 in that case in favour of the 8th defendant was binding on the plaintiffs. The

mortgage had been created in 1920. The plaintiff''s case was that the mortgagors who were only co-sharers, had no right to charge their interest in

the said properties. The suit was filed in 1937 after about 17 years, from the date of the usufructuary mortgage. The plaintiffs claimed that they had

no knowledge of the mortgage and that limitation could not run until they had acquired knowledge. It was common ground in that case that they

acquired knowledge only within the period of 12 years of the suit. The question was whether in spite of their knowledge being only within the

period of 12 years, the suit was within time. In dealing with this question it was pointed out at page 625 as follows--

Where one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other co-sharers must,

unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests they must take the

consequences. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners remains in possession

of the land and cultivates it for years, a position which we have here, there can be no doubt that the requirements of continuity, publicity and extent

for adverse possession are fully complied with.

In the present case also strangers had been let into possession of the properties as a result of the sale deeds in their favour executed by defendants

3 and 4. If the plaintiff deliberately closed his eyes to what was going on, he has necessarily to take the consequences. The sale deeds by

themselves are not taken as he basis of the commencement of adverse possession. It was the partition deed of 1st June 1954 and the open

exclusion of the plaintiff as a result thereof that was relied on for this purpose. We do not, therefore, have to consider a case where there are only

alienations of part of the properties by co-sharers, and whether in such cases of partial alienation the conduct could be taken as amounting to

ouster of the sleeping co-owners from enjoyment of the entire properties.

The learned counsel for the appellant repeatedly asked whether it is consistent with reason or probabilities that a person who had such a stake

in the properties left by Abdul Azeez would have merely stood by if he has knowledge of the transaction of partition and subsequent alienations by

the defendants. One explanation that was attempted on behalf of the respondents was that the plaintiff had, not accounted for the mahar and

jewellery worn by Balkhis at the time of her death, and that was the reason why the plaintiff who had married so soon after the death of the first

wife did not have the face to assert his claims as the heir of Balkhis. It is unnecessary for our present purpose to consider the correctness or

otherwise of this explanation. If on the given facts we are satisfied that the plaintiff had knowledge of the transactions and had not chosen to

question the partition or alienations during the relevant period, then it is not for us to probe into any question of probabilities as to whether the

plaintiff would have kept quiet all these years if he had knowledge. The partition deed had been entered into openly. It had been attested by the

persons in the village. The partition was not effected in a secretive manner with the help of some strangers. There is nothing to show that the

attesting witnesses who have given evidence in this case had, any particular interest in the defendants as contrasted with the plaintiff, The plaintiff

has not come forward with any version that the defendants were so inimically disposed against him that they had conspired, as it were to keep him

out of the inheritance. On the facts, we are satisfied that the plaintiff cannot successfully disclaim knowledge of the transactions.

The learned counsel for the appellant relied strongly on the decision of this court in Valliammai Achi v. Velu Servai 1962-1 M.L.J. 197=74

L.W. 742. That was also a case of co-sharers, one of them pleading adverse possession as against the others. A Bench of this Court affirmed the

proposition that mere inaction on the part of one co-tenant could not amount to adverse possession by another co-tenant or co-sharer in actual

possession. It was pointed out that there should be positive assertion of hostile title to the knowledge of the co-owner sought to be excluded in

order to constitute ouster and that to constitute adverse possession, it was the animus of the person in possession that was material. We do not see

how the principle laid down in this decision supports the case of the appellant herein. The animus of the person in possession in the present case,

viz., the defendants was, at any rate, from 1st June 1954 to make a positive assertion of hostile title. We do not, therefore, find anything to support

the case of the appellant in this decision.

The learned counsel for the respondents submitted that there were exhibits in this case showing mutation of the names of the defendants in

respect of the suit properties thereby showing that the plaintiff was excluded. However, there is no evidence in this case about the person in whose

name the properties originally stood registered in the revenue records so as to find out whether there was any actual mutation subsequent to the

partition of 1954. Even assuming that there has been mutation as contended, we do not consider that the mutation by itself would have been of any

avail in a case like this because the decision of the revenue authorities in a matter relating to grant of patta, particularly in respect of ryotwari lands,

cannot be equated to a decision on title to immoveable properties. The obvious purpose of the proceedings before the revenue authorities is only

to enable recovery of revenue in a convenient manner from the persons either in occupation or ownership of the lands. The absence of a patta in

the name of the plaintiff cannot, therefore, derogate from his title if he had it, as a patta is not a document of title. This aspect has also been dealt

with in, Valliammai Achi v. Velu Servai 1962-1 M.L.J. 197=74 L.W. 742. However, notwithstanding the rejection of this plea, for the reasons

already given, we are of the opinion that the plaintiff has been ousted for well over the statutory period to his knowledge so that the suit is time

barred. The result is that the appeal fails and is dismissed with costs.