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Judgment
S. Ashok Kumar, J.—The plaintiff who lost before both the courts below has preferred this second appeal. Pending the Second Appeal the
sole plaintiff died and his legal representatives have been brought on record.
The appellant/plaintiff filed the suit for partition claiming 1/3rd share in the suit property. According to the plaintiff, the suit property originally
belonged to her grandmother Chellammal. After her death her mother Thayarammal had been in possession and enjoyment of the same. She had
three daughters, the plaintiff, Muniammal and one Nagammal Muthiyalu Naicker, who is the husband of the first defendant is the son of
Thayarammal. Except, the first plaintiff, other legal heirs have died. Thayarammal died in 1972. The defendants 2 to 5 are the legal heirs of
Muniammal. Nagammal died without any issues. The plaintiff left the suit property with the defendants and the defendants have been paying
melwaram for the same. During 1975 they have failed to pay the melwaram for which a suit has been filed in O.S.No. 72/77 in which a decree has
been passed. Against the same an appeal has been preferred by them in which it was held that the defendants are entitled to partition. There are
some other properties in possession and enjoyment of Thayarammal. The plaintiffs are entitled to 1/3rd share in the suit property. Since the first
plaintiff died the second plaintiff, her son is entitled to her share. Hence the suit.
The first defendant resisted the suit by filing a written statement denying the fact that the suit property originally belonged to Chellammal,
thereafter Thayarammal who had three daughters and one son. It is admitted that the first defendant is the wife of Muthial Naicker. It is denied that
defendants 2 to 5 are the heirs of the deceased Muniammal. Muthial Naicker has other legal heirs besides the first defendant. It is not correct to
state that the plaintiffs are entitled to partition based on the judgment in A.S.No. 170 of 1978 filed by the parties. The suit property was never in
possession and enjoyment of the plaintiff. The father in law of the first defendant Munusamy Naicker died leaving behind three daughters and one
son as his legal heirs. After his death, the suit property devolved on Muthilau Naicker. After Muthial Naicker, the first defendant and her children
are entitled to the same. The patta stands in the name of Muthial Naicker. The plaintiff is not entitled to the suit land. Hence the suit is liable to be
dismissed with costs.
On the above pleadings and on hearing the learned Counsel appeared on either side and on a perusal of the evidence both oral and
documentary, the trial court dismissed the suit. On appeal, the first appellate court concurred with the judgment and decree of the trial court. As
against the concurrent findings, the plaintiff has preferred this Second Appeal.
At the time of admission, this Court framed the following substantial questions of law in this Second Appeal:-
(i) Whether the courts below are right in negativing the claim of the appellant based on the concrete and cogent evidence solely on the basis of
patta produced on behalf of the respondent?
(ii) Whether the observations made that the appellant has to file a suit for partition for his share does behind the courts below or not?
(iii)Whether the courts below are right in observing that the appellant was ousted by the respondent and hence on the basis of ouster the appellant
is not entitled to claim for patta?
Learned counsel appearing for the appellants/plaintiff contended that partition always devolves in the system of title and not on possession. Even
in the suit filed by the plaintiff family in 1971 and the present suit for partition, the defence stated by the defendant are different though the
defendants are one and the same. The defendants have not proved their title by producing any documentary evidence. Ouster is a legal plea the
same will apply only to formidable period of over 40 to 60 years and thus the said plea cannot be applied between co owners in view the facts of
the present case.
As rightly held by the first appellate court, the decision rendered in the earlier proceedings in A.S.No:170 of 1978 will not be supportive of the
plaintiffs or binding decision since the said proceedings is for declaration of title and for possession. The present suit is for partition by the plaintiffs.
Even in the earlier proceedings in O.S.NO:72 of 1977, it has been admitted by the plaintiffs that the defendants are in possession and enjoyment of
the suit property.
The defendants have raised the plea of ouster and adverse possession. Though it is a well settled position of law that mere non participation in
the rent or produce from the suit property of a co sharer does not amount to an ouster so as to give title by adverse possession to the other co
sharer in possession, the courts can legitimately infer from exclusive possession for a considerable length of time that the other co owner has been
excluded to his knowledge. Taking into consideration of the evidence in this case, it is clear that neither the plaintiff nor his mother have ever been
in possession or enjoyment of the suit property and no document has been produced in support of their case. On the other hand, the documents
produced by the defendants namely Exs.A.1, Patta would show that patta has been issued even in 11.6.1960 to Muthial Naicker when the
plaintiff''s mother Thayarammal died after 12 years i.e., during 1972. Thus it is clear that it is only the defendants have been in possession of the suit
property to the exclusion of the plaintiff''s mother and they have been paying the kist etc., The plaintiff''s mother knowing all these facts had not
raised any claim and even in O.S.No. 72/77 has raised a right as a co owner. Thus the first appellate has rightly held that the plaintiff has lost the
right by application of the theory of ouster.
In Ibramsa Rowther and Others Vs. Sk. Meerasa Rowther and Others, , a Division Bench of this Court held thus:-
There is a distinction between adverse possession as been strangers and ouster and exclusion of co owners In the case of adverse possession as
against strangers, it is sufficient that adverse possession is overt and without any attempt at concealment. It is not necessary that adverse
possession should be brought home to the knowledge of the owner. When the adverse possession is open, visible and notorious, if the owner
remains ignorant and indifferent he cannot complain. In the case of ouster of a co owner the position is different. To constitute ouster law requires
something than mere exclusive possession and exclusive receipt of income. There must also be an ouster a hostile, open denial and an open
repudiation of that co owner''s right to the latter''s knowledge. But this does not mean that the co owner who has been ousted or excluded should
be expressly informed as such by the other co owner. If other circumstances concur, the courts can legitimately infer from exclusive possession for
a considerable length of time, that the other co owner has been excluded to his knowledge. The theory of lost grant is applicable to support long
continued possession for considerable length of time. If the co owner does not assert his right for a considerable length of time, the inactive co
owner must take the consequences for long delay in bringing a suit to establish his right which delay has prejudiced the other side and occasioned
loss of evidence by lapse of time.
Good sense and justice require that courts should be reluctant to unsettle quiet and undisturbed possession for over a few decades. The law
presumes a lawful origin of possession which must originate from ouster and continues to be such for the statutory period.
Admittedly even during the life time of Thayarammal, certain suit properties were standing in the name of the Muthial Naicker, husband of the
first defendant. It is significant to note that Thayarammal die din the year 1972. Even before her death from 1960, the properties were standing in
the name of Muthial Naicker under the patta. Though the plaintiffs contended that they were in joint possession of the suit properties along with
Muthial Naicker, and also stated that they have been receiving income from the crops periodically from Muthial Naicker, to substantiate the said
allegation, they have not produced any documentary evidence. It is also significant to note that there is no iota of evidence to show that
Thayarammal was in possession of the suit properties by adducing any documentary evidence. The decisions referred in the previous proceedings
will clearly show that the plaintiffs have no right over the suit properties. On the basis of the findings given in the earlier proceedings, the plaintiffs
cannot sustain any claim by way of filing suit for partition for the alleged 1/3rd share in the suit properties. it is also submitted by the counsel for the
respondent that even during the pendency of the proceedings, many of the items have been dealt with and the sale proceeds have been utilised for
the medical treatment and obsequies of the parents of the first respondent''s husband and in fact only one item in Schedule in Selaiyanoor village
comprised in S.No. 225/1 which is 72 cents have been acquired by SIPCOT and now the first respondent is not in possession of the same and in
respect of one of the properties in Schedule-2, it has already been dealt with during the life time of the husband of the first respondent Muthial
Naicker and the same is not even available for partition. In view of the foregoing reasons and findings and the decision relied on, all the substantial
questions of law are answered against he appellant and the suit for partition filed by the plaintiff is not sustainable in law, nor bonafide and the well
considered judgments of both the courts below need not be interfered with.
In the result, the Second Appeal is dismissed confirming the judgment and decree of the first appellate court. No costs.