2004(1) ALL MR 779
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

V.M. KANADE, J.

Satyabhamabai W/O Wasudeo Dhanjode & Ors.Vs.Chhatrapati S/O Zibal Dhanjode & Ors.

Second Appeal No.307 of 1990

25th April, 2003

Petitioner Counsel: Shri. ANAND PARCHURE,Shri. ABHIJIT KHARE
Respondent Counsel: Shri. A. Z. JIBHKATE

Evidence Act (1872)), S.3 - Appreciation of evidence - Weakness of defence - Suit for partition and separate possession - Held, case of plaintiffs must stand or fall on its own merits and not on weakness of the defence of defendants.

In the instant case the question which falls for consideration is whether the defendants have proved that they were in possession of the property continuously and that there was evidence and admission given by the plaintiffs in their plaint and evidence which itself was sufficient to prove that they were aware that they were ousted from the property. In this context, it would be relevant to consider the pleadings of the plaintiffs in their plaint. It has been specifically pleaded by the plaintiffs in the plaint that initially the house was owned by their grand father Jagoba and during his life time, Jagoba had asked the plaintiffs to stay in the house of his brother who died issueless and the said property was in his possession since then. It has also come on record in the plaint that the plaintiffs had to leave that house on account of quarrel between the plaintiffs and the defendants and because of the said quarrel the plaintiff's father was asked to leave the house. It is further admitted position that in the revenue entries, the name of the plaintiffs or their father was never shown and that they were aware of this fact. Further, in the plaint and in oral evidence of the plaintiffs, it has come on record that after the death of their father, during the life time of their father, they never filed the suit for partition and their mother had told them not to file the said suit. The father of the plaintiffs died in the year 1966 and even thereafter for another 14 years the plaintiffs did not take any steps. It is further admitted that appellants/original defendants herein were in continuous possession of the property right from 1947 and are still in possession of the said property, whereas the appellants are in possession of another house which they claim that it was bequeathed to them by their aunt which was inherited by her from her brother. Thus, it is an admitted position that a house of the joint family property is in possession of the plaintiffs. A spacious ground which has been taken in the plaint by the plaintiffs is that on 29-8-1980 he came to know that the name of Jagoba was there in the Corporation Record and thereafter the notice was issued to the defendants demanding partition and separate possession. From these facts, two things which stand out are that firstly the plaintiffs and their father themselves on their own admission were aware of the hostile attitude of the defendants from the year 1947 onwards. The father of the plaintiffs was alive till 1966. The plaintiffs and defendants are residing in the same town. They have never visited the house of the defendant, neither they have tried to enter the property. It is difficult, under these circumstances, to come to a conclusion that they were not aware about the hostile act on the part of the defendants. Under this background, the Revenue entries in the Corporation Record assume importance. No effort has been taken by the plaintiff to enter their name in the Corporation Record nor any attempt is made to find out as to what is the position of the Revenue Record. In the cross-examination of the plaintiffs, he has admitted that he was told by his father not to ask for his share till Gangubai was alive. He has admitted that since Gangubai was alive, he did not ask for his share or demand partition. He has further admitted that during his life time, his father did not ask for his share and he did not file the suit as long as his grand mother was alive. He has further admitted that his grand mother also did not ask him to file a suit. From the evidence adduced by the plaintiffs, it is clear that they had practically given up the suit property and had not demanded any share in the said property though share or possession was refused to them since 1947. In view of this evidence adduced by the plaintiffs themselves, the question of the defendants bringing other evidence on record did not arise. It is a settled position in law that the case of the plaintiffs must stand or fall on its own merits and not on the weakness of the defence of the defendants. (1993)4 SCC 375 and AIR 1971 SC 1337 - Referred to. [Para 11]

Cases Cited:
Shambhu Prasad Singh Vs. Most. Phool Kumari, AIR 1971 SC 1337 [Para 7,12]
Parsinni (Dead) By LRS Vs. Sukhi, (1993)4 SCC 375 [Para 8,11]
Sadasivam Vs. K. Doraisamy, (1996)8 SCC 624 [Para 10,14]
Vidya Devi @ Vidya Vati (Dead) By LRS. Vs. Prem Prakash, (1995)4 SCC 496 [Para 10,14]
Mohammad Bagar Vs. Naim-un-Nisa, AIR 1956 SC 548 [Para 10]
Shri. Shiam Sunder Gautam Vs. Shri. Tara Chand, AIR 1978 HP 24 [Para 10,14]
Maharajadhiraj of Burdwan, Udaychand Mahatab Chand Vs. Subodh Gopal Bose, AIR 1971 SC 376 [Para 10,14]


JUDGMENT

JUDGMENT :- This Second Appeal is filed by the Original Defendants who are challenging the Judgment and Decree passed by the 8th Additional District Judge, Nagpur in Civil Appeal No.484/48 arising out of the Judgment and Decree passed on 31-3-1984 by the 4th Joint Civil Judge, Jr. Dn., Nagpur, who had dismissed the Civil Suit No.1561/80 filed by the plaintiffs.

2. The brief facts are as under :

One Jagoba Dhanjode was the paternal grand father of the plaintiffs and the defendants. This Jagoba Dhanjode was the owner of House No.216 situated in Ward No.20 and his name was recorded in the Corporation Record. He had two sons viz. Zibal and Wasudeo. They were residing alongwith their father in the said House. Jagoba died in the year 1947. Jagoba had a brother viz. Nagobaji who had a separate house in his exclusive possession. After the death of Nagobaji who died issueless, his wife Gangubai inherited the house and became the owner of the House and on 11-1-1944 this Gangubai bequeathed her house under a registered gift-deed in favour of the plaintiff's father Zibal and he accepted that house and thereafter Zibal went to reside in that house. It is the case of the plaintiffs that because there was a quarrel in the family, Jagobaji asked his other son Zibal to shift to his house which was gifted to him. While leaving the house, it is submitted by the plaintiffs that Zibal did not surrender his right from House No.216. The plaintiffs came to know that in the Corporation Record, the name of Jagoba was found on 29-9-1980 and, therefore, a notice was issued to the defendants asking them to give share in the house and on refusal by the defendants, the plaintiffs filed the present suit for partition and separate possession. The appellants/defendants filed their Written Statement and contended that Zibal was residing separately and that he had surrendered his rights in the said house after he shifted to the house which was gifted to him. It was further contended that the plaintiffs had brought the suit for partial partition and, therefore, the said suit was not maintainable. It is further averred that the defendants have became the owner of the suit house by way of adverse possession and, therefore, the suit was liable to be dismissed. The trial Court dismissed the suit of the plaintiffs on the ground that the other joint family properties were not included in the schedule and, therefore, the present suit was a suit for partial partition and, therefore, it was not tenable and, therefore, the suit was dismissed.

3. The plaintiffs preferred an appeal. The Appellate Court set aside the Judgment and Order of the trial Court and held that the defendants had not proved adverse possession. The Appellate Court further held that since the defendants had not entered into the witness box and had not led any evidence, merely because the defendants had remained in uninterrupted and continuous possession of the suit house that would not be sufficient for proving adverse possession against the owner unless and until the ouster of the plaintiffs was proved to their knowledge and, therefore, the Appellate Court set aside the findings of the trial Court that the defendants had established their title to the suit house exclusively by adverse possession. The Appellate Court further held that there was no pleadings in the Written Statement about partial partition and further no evidence was led by the defendants to bring on record any material to show that besides the house there was any other ancestral joint family property owned by the plaintiffs and the defendants.

4. The Appellate Court, therefore, allowed the Appeal and decreed the suit of the plaintiffs and held that the plaintiffs alongwith the defendants were jointly entitled to half shares of the suit house. The Appellate Court also ordered an inquiry into mesne profits under Order 20, Rule 12 of the Code of Civil Procedure.

5. I have heard the learned counsel appearing on behalf of the appellants as also the learned counsel appearing on behalf of the respondents.

6. The suit house consists of one storied mud house with country tiles roof. Its rafters and bamboos are rotten and it has old material and it is surrounded by the lanes on all the four sides. The learned counsel appearing on behalf of the appellants, submitted that the substantial question of law which was raised in the petition was, whether the burden of proving adverse possession was on the defendants; Whether the defendants were required to prove adverse possession and the said fact was proved by admission given by the plaintiffs by their admission in the plaint as well in their oral evidence. Secondly, it was urged that the suit for partition was barred by limitation and, therefore, the suit was not maintainable and lastly in the suit for partition, whether it was an essential to adduce evidence in respect of the other properties owned by the joint family when the record which was produced by the plaintiffs itself indicated that besides the suit property there were other properties owned by the joint family.

7. The learned counsel appearing on behalf of the appellant relied upon the Judgment of the Apex Court in the case of Shambhu Prasad Singh Vs. Most. Phool Kumari and others, reported in AIR 1971 Supreme Court 1337. He submitted that in the present case the Apex Court had held that in case of family arrangements, the various circumstances have to be taken into consideration as a whole in order to find out whether there was a dispute in respect of the property and it would be sufficient if it was shown that there were actual or possible claims and counter claims by the parties in settlement wherein the arrangements as well the findings arrived at thereby acknowledging the title in one to whom particular property falls on assumption that he had inferior title therein.

8. The learned counsel appearing on behalf of the appellants also relied in the case of Parsinni (Dead) By LRS and others Vs. Sukhi and others, reported in (1993)4 Supreme Court Cases 375 wherein the Apex Court has laid down the test of proving adverse possession. The learned counsel submitted that in the case where the appellants were claiming adverse possession on the basis of revenue records, it was held that the claim was sustainable.

9. The learned counsel appearing on behalf of the respondents submitted that the defendants had not entered into the witness box and had not tendered any evidence either oral or documentary on record. The learned counsel, therefore, submitted that the appellants/original defendants had not proved adverse possession. He submitted that it is a settled position in law that so far as the Joint Hindu Family is concerned, merely because one co-owner is staying separately for a long time by itself would not oust him from claiming share in the property, secondly though the co-sharer may be in possession of the joint property but then he is deemed to be in possession on behalf of all the co-sharers and, therefore, it was difficult to raise the plea of adverse possession by one co-sharer against the other unless the other co-sharers do not profess hostile title as against the other co-sharers openly and to the knowledge of the other joint owners. He submitted that the plaintiffs came to know, for the first time in 1980, that his grand fathers' name was shown in the Corporation Record and thereafter he asked for partition and when partition was refused he filed the suit for partition. He submitted that under these circumstances there was no hostile act on the part of the defendants which would give him an impression that his share was denied to him and since the partition was refused when it was demanded by him, he filed the suit for partition. The learned counsel appearing on behalf of the respondents further submitted that the question of partial partition did not arise in the present case as there was no pleadings in the Written Statement of the defendants to that effect. He submitted that neither it was a case of the defendants in the plaint nor it was stated by way of oral evidence that there was any other property in existence apart from the suit property which was described in the plaint. He submitted that under these circumstances the appellate Court had rightly rejected the said arguments advanced by the defendants and had set aside the findings of the trial Court.

10. The learned counsel appearing on behalf of the respondent further submitted that the suit was filed within limitation and as soon as the defendants had refused to effect partition after they were served with the notice in 1980 he had immediately filed a suit for partition. He relied on the Judgment of the Apex Court in the case of Sadasivam Vs. K. Doraisamy, reported in (1996)8 Supreme Court Cases 624. He also relied upon the Judgment in the case of Vidya Devi @ Vidya Vati (Dead) By LRS Vs. Prem Prakash and others reported in (1995)4 Supreme Court Cases 496. He also relied upon the another Judgment in the case of Mohammad Bagar and others Vs. Naim-un-Nisa and others, reported in AIR 1956 Supreme Court 548. He also relied upon the Judgment of the Himachal Pradesh High Court in the case of Shri. Shiam Sunder Gautam and others Vs. Shri. Tara Chand and others, reported in AIR 1978 Himachal Pradesh 24. He further relied on the Judgment of the Apex Court in the case of Maharajadhiraj of Burdwan, Udaychand Mahatab Chand Vs. Subodh Gopal Bose and others, reported in AIR 1971 Supreme Court 376 wherein it was held by the Apex Court that "the possession of the lands by a co-owner however long it might be, cannot confer on him any right unless it is adverse to other co-owners".

11. Having heard the rival contentions and also having examined the various Judgments on this point by the Apex Court and High Courts, the question which falls for my consideration is whether the defendants have proved that they were in possession of the property continuously and that there was evidence and admission given by the plaintiffs in their plaint and evidence which itself was sufficient to prove that they were aware that they were ousted from the property. In this context, it would be relevant to consider the pleadings of the plaintiffs in their plaint. It has been specifically pleaded by the plaintiffs in the plaint that initially the house was owned by their grand father Jagoba and during his life time, Jagoba had asked the plaintiffs to stay in the house of his brother who died issueless and the said property was in his possession since then. It has also come on record in the plaint that the plaintiffs had to leave that house on account of quarrel between the plaintiffs and the defendants and because of the said quarrel the plaintiff's father was asked to leave the house. It is further admitted position that in the revenue entries, the name of the plaintiffs or their father was never shown and that they were aware of this fact. Further, in the plaint and in oral evidence of the plaintiffs, it has come on record that after the death of their father, during the life time of their father, they never filed the suit for partition and their mother had told them not to file the said suit. The father of the plaintiffs died in the year 1966 and even thereafter for another 14 years the plaintiffs did not take any steps. It is further admitted that appellants/original defendants herein were in continuous possession of the property right from 1947 and are still in possession of the said property, whereas the appellants are in possession of another house which they claim that it was bequeathed to them by their aunt which was inherited by her from her brother. Thus, it is an admitted position that a house of the joint family property is in possession of the plaintiffs. A spacious ground which has been taken in the plaint by the plaintiffs is that on 29-8-1980 he came to know that the name of Jagoba was there in the Corporation Record and thereafter the notice was issued to the defendants demanding partition and separate possession. From these facts, two things which stand out are that firstly the plaintiffs and their father themselves on their own admission were aware of the hostile attitude of the defendants from the year 1947 onwards. The father of the plaintiffs was alive till 1966. The plaintiffs and defendants are residing in the same town. They have never visited the house of the defendant, neither they have tried to enter the property. It is difficult, under these circumstances, to come to a conclusion that they were not aware about the hostile act on the part of the defendants. Under this background, the Revenue entries in the Corporation Record assume importance. No effort has been taken by the plaintiff to enter their name in the Corporation Record nor any attempt is made to find out as to what is the position of the Revenue Record. In the cross-examination of the plaintiffs, he has admitted that he was told by his father not to ask for his share till Gangubai was alive. He has admitted that since Gangubai was alive, he did not ask for his share or demand partition. He has further admitted that during his life time, his father did not ask for his share and he did not file the suit as long as his grand mother was alive. He has further admitted that his grand mother also did not ask him to file a suit. From the evidence adduced by the plaintiffs, it is clear that they had practically given up the suit property and had not demanded any share in the said property though share or possession was refused to them since 1947. In view of this evidence adduced by the plaintiffs themselves, the question of the defendants bringing other evidence on record did not arise. It is a settled position in law that the case of the plaintiffs must stand or fall on its own merits and not on the weakness of the defence of the defendants. In my view, the ratio laid down by the Apex Court in the case of Parsinni others Vs. Sukhi and others, (1993)4 Supreme Court Cases 375, would be squarely applicable to the facts of the present case, where the Apex Court has held as follows:

"Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. When the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondents against whom time is running, ought, if to exercise due vigilance to be aware of what is happening. The possession of the appellants was adverse to the respondents inasmuch as the respondents (sic appellants) ever since the marriage of the first appellant and her sister Chinto continued to remain in possession and enjoyment of the property in derogation of the right, title and interest hitherto held by the respondents. When they openly and to the knowledge of the respondents continuously remained in possession and enjoyment and the entries in the revenue records establish that their possession and enjoyment is as owners, the consent of the respondents initially given to remain in possession till their marriage or death whichever is earlier does not prevent possession being adverse after their marriage. Without any let or hindrance they remained in possession and enjoyment excluding the respondents from sharing the usufruct from those lands. The test is whether the appellants are able to show that they held lands for themselves and if they did so the mere fact that there was acquiescence or consent at the inception on the part of the respondents make no difference. Since possession and enjoyment of the first appellant and her sister Chinto was to the exclusion of the respondent brothers, for well over 30 years it is proved that the appellants were in possession and enjoyment openly and continuously in assertion of their right as owners. The entries in the revenue recorded continuously for 30 years would corroborate their plea of adverse possession and militates against the claim of the title of the respondents. The plea that the appellants were never in possession and enjoyment is belied by the entries in the revenue records. The suit was filed in 1963 asserting their rights as owners for the first time by which date the appellants have perfected their titles by prescription. The High Court did not advert to this aspect of the matter. Therefore, we have no hesitation to hold that the appellants have perfected their title to the 53 kanals 12 marlas by prescription and the suit is barred by limitation under Article 65 of the Schedule to the Act."

12. The facts in the present case are identical. The appellants are in possession of the property and enjoying the same to the exclusion of the plaintiffs for more than 35 years and it is proved that they are in possession of the property in assertion of the rights of the owner. Their entry in Revenue Record continuously for 30 years itself corroborates their plea of adverse possession. It is admitted by the respondents that the plaintiffs are in possession. Similarly in my view the ratio of the Judgment of the Apex Court in the case of Shambhu Prasad Singh Vs. Phool Kumari and others reported in AIR 1971 Supreme Court 1337 is also squarely applicable to the facts of the present case. The Apex Court has observed in para 9 and 10 as follows;

"It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is each party relinquishing all claims to property other than they had previously asserted, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary."

"He went on to say that this was not the only kind of arrangement which the Courts would uphold, and that they would take the next step of upholding "an arrangement under which one set of persons abandons all claims to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed that whole and made such an assertion of title) and are content to take such properties as are assigned to them as gifts pure and simple from him or her or as a conveyance for consideration when consideration is present". In such a kind of arrangement where title in the entire property is acknowledged to reside in only one of them and thereupon that person assigns parts of it to others there would be a transfer by that agreement itself which obviously in such a case would need a registered document. This decision lays down the assumption underlying a family arrangement, namely, of an anterior title and its acknowledgment in one to whom a property or part of it falls under the arrangement. ( See also Rani Mewa Kuwar Vs. Rani Hulas Kuwar, (a873-1874) 1 Ind App 157 at P 166. Therefore, it is not necessary that there must exist an anterior title sustainable in law in such a person which the others acknowledge".

"The arrangement under challenge has to be considered as a whole for ascertaining whether it was made to allay disputes, existing or apprehended in the interest of harmony in the family or the preservation of property. It is not necessary that there must exist a dispute, actual or possible in the future, in respect of each and every item of property and amongst all members arrayed one against the other. It would be sufficient if it is shown that there were actual or possible claims and counter-claims by parties in settlement whereof the arrangement as a whole had been arrived at, thereby acknowledging title in one to whom a particular property falls on the assumption (not actual existence in law) that he had an anterior title therein".

13. The Apex Court in the said case has clearly observed that it is not necessary that there must exist a dispute, actual or possible in the future, in respect of each and every item of property and amongst all members arrayed one against the other. In the present case the very fact that the plaintiffs' father had advised them not to file the suit as long as their grand mother is alive, itself indicates that they were very well aware about the perfection of title by the defendants on the said house property and that the plaintiffs' father asked them not to file the suit as long as their grand mother was alive. From this, the only inference which could be drawn is that if the suit was filed during the life time of their grand mother, she would have given evidence against the plaintiffs. Otherwise, there was no reason for the plaintiffs' father to advise the plaintiffs not to file the suit during the life time of their grand-mother. The suit filed by the plaintiffs, therefore, clearly appears to be an afterthought and an attempt to grab the share in the house of the defendants after he had perfected his title over the other house which was ancestral property at one time.

14. So far as the Judgments which are relied by the learned counsel for the respondents are concerned, there can not be any dispute about the ratio laid down by the Apex Court in these Judgments. In the case of Sadasivam Vs. K. Doraisamy, (1996)8 Supreme Court Cases 624, the Apex Court in para 13 of the Judgment held that exclusive possession of a co-sharer would not become adverse to the other co-sharers unless such possession was exercised by ousting them. There can not be any dispute about the said proposition. However, in the facts of the present case as observed by me in the foregoing paragraphs, the possession of the defendant was hostile to the plaintiffs' right from 1947 itself and, therefore, the plea of the plaintiffs that though they had left the house after the quarrel between two brothers, they did not relinquish their right over the suit property, can not be accepted. The learned counsel appearing on behalf of the respondents also has relied upon the Judgment in the case of Vidya Devi. Vs. Prem Prakash and others, (1995)4 Supreme Court Cases 496, in which the Apex Court has held that; "if the plea of adverse possession is not specifically raised by setting out all requisite ingredients to constitute ouster, it was held that the plea relating to title of suit property cannot be said to have been raised and, therefore, revenue authorities in the said case was not obliged to frame any issue on the question of title. The ratio of the Judgment of the Apex Court would not be applicable to the facts of the present case; firstly because specific plea has been raised. In the present case, in the written statement itself the defendants have stated in para 3 as follows :

"It is true that the said house was the joint family property. However, it is submitted that Zibal during life time of Jagoba gave up his right to the suit property as he was permitted to occupy the house in his occupation at present. Thus, the defendants claim right and title by way of prescription and by way of adverse possession as the defendants are occupying and enjoying house no.216 in their own right, title and interest and to the exclusion of the plaintiffs and their predecessors in title and the plaintiffs and their predecessors in title have also acquiesced in exclusive possession and enjoyment by the defendants."

Thus, the ratio would not be applicable to the facts of the present case. Similarly the Judgment in the case of Shri. Shiam Sunder Gautam Vs. Shri. Tara Chand and others, AIR 1978 Himachal Pradesh 24, also would not be applicable as in the said case there was no disclaimer by the co-owner in possession of the right of other co-owners in possession for the period of more than 12 years. Lastly, the respondents have relied upon the Judgment in the case of Maharajadhiraj of Burdwan Vs. Subodh Gopal Bose and others, AIR 1971 Supreme Court 376 wherein the Apex Court has held the possession of the lands by a co-owner however long it might be, cannot confer on him any right unless it is adverse to other co-owners. The ratio of this Judgment would not be applicable to the facts of the present case. The Apex Court in the case of Shri. Shiam Sunder Gautam and others Vs. Shri. Tara Chand and others, AIR 1978 Himachal Pradesh 24, in para 8 has observed as under :

"The next question is whether the appellants can be held entitled to the properties on the ground of adverse possession. It is well settled that in the absence of clear proof of ouster, the possession of one sharer must be regarded as possession on behalf of all. I have carefully considered the material evidence on the record, and to my mind it is not reasonably possible to hold that the ouster from possession of the respondents has been established. There is nothing to show that for a period of twelve years or more there has been a disclaimer by the appellants of the right of the respondents by any open and unequivocal assertion of hostile title. A distinction was sought to be drawn in respect of the respondent Chaman Prakash, the adopted son of Gauri Shankar, and it was contended by the appellants that because of the judgment of the learned District & Sessions Judge, Nahan in Case No.12/1 of 1998 (Exhibit PA) it must be held that so far as Chaman Prakash was concerned the appellants were in adverse possession of the properties, or at least of the property situated in Khasra No.1924/2. The submission is based on the circumstance that issue No.2 in that suit was whether the defendant Ram Chander had established his possession on the property of Gauri Shankar deceased at the time of his death in 1998 BK and that the learned District & Sessions Judge had decided the issue against Chaman Prakash. In my opinion, on a perusal of the entire judgment in the suit it is not possible to say that the learned Judge has held that the defendant Ram Chander was in possession. The issue was never considered on the merits. It was taken into consideration along with issue No.3 which was on the point whether the plaintiff Chaman Prakash was the owner of 1/3rd share of the properties situated in Khasra Nos.1577, 1973 and 1924/2 and issue No.6 on the point whether the suit was not barred by Section 42 of Act I of 1977 BK. The learned Judge took the view that no suit for declaration of ownership of a 1/3rd share was maintainable inasmuch as it was brought on the basis that the plaintiff Chaman Prakash had inherited the property as co-sharer. It was observed that a suit for partition of the property had to be filed. A declaration could not be granted because so long as the family continued joint it could not be predicated what was the particular share of any member of the family. It is apparent that because the suit was found not maintainable the learned Judge declined to give any finding on issue No.2. It cannot be said that he had rendered a finding that the defendant Ram Chander was in possession of the property of Gauri Shankar."

On the basis of the said evidence, the Apex Court came to the conclusion that the defendant had not been treated the property as their own disclaiming the right, title or interest of the plaintiffs over the property. In paras 9 and 10, the Apex Court has observed as follows :

"From the oral evidence led by the parties also the only conclusion that can be drawn is that the defendants had not been treating the property as their own, disclaiming the right, title and interest of the plaintiffs over the property. Unless some overt act on the property to the knowledge of the other party is established there can be no adverse possession in the case of co-sharers. Therefore, the plea of adverse possession fails.

Since the plea of adverse possession raised by the defendants is negatived, the question of limitation does not arise."

Thus, the ratio of the said Judgment would not be applicable to the facts and circumstances of the present case.

15. Under these circumstances, I am of view that the findings which are arrived at by the Appellate Court will have to be set aside as the Appellate Court was merely impressed with the fact that the defendants had not led any evidence. However, the said finding is perverse because the entire evidence which has been brought on record by the plaintiffs themselves and in view of the admissions which are given by the plaintiffs of the revenue record and the possession of the defendants and the further fact of knowledge of their ouster by the plaintiffs themselves, the findings given by the Appellate Court can not be sustained.

16. In the result, the Second Appeal filed by the appellants is allowed. The Judgment and order passed by the Appellate Court is quashed and set aside. Under the circumstances, there shall be no order as to costs.

Second Appeal allowed.