1971 (12) TMI 123 - HC - Indian Laws

Appeal Dismissed with Costs, Plaintiff Awarded Half Share in Property

Narsinghrao and Ors. Versus Shantabai and Ors.

The appeal was dismissed with costs, and the plaintiff was entitled to a half share in the property. The court upheld the first appellate court's ... - Issues Involved:1. Bar under Order 22, Rule 9, Civil Procedure Code2. Joint family property3. Adverse possession4. Limitation for filing the suit5. Improvements made by appellants6. Share entitlement of the plaintiffIssue-wise Detailed Analysis:1. Bar under Order 22, Rule 9, Civil Procedure Code:The appellants argued that the suit was barred under sub-rule (1) of Rule 9 of Order 22, Civil Procedure Code, as an earlier suit for partition filed by the plaintiff was dismissed as abated. The court referenced T. C. Mukerji v. Afzal Beg, Dilo Rana v. Kunj Behari Prasad, and Devi Sahai v. Nanar, which held that a fresh suit for partition is not barred even if an earlier suit was dismissed as compromised or abated. The right to bring a suit for partition is a continuing right incidental to the ownership of joint property. Therefore, the court held that the suit was not barred under Order 22, Rule 9, Civil Procedure Code.2. Joint Family Property:The appellants contended that the plaintiff failed to show that the house was joint family property. Although the plaintiff did not provide evidence that the house was acquired by Dhodiba, the court found that the house was joint family property based on an unqualified admission by the defendants in their written statement in an earlier suit. The Additional District Judge's finding was upheld as it was based on this admission and other circumstances on record.3. Adverse Possession:The appellants claimed adverse possession of the house. The court noted that adverse possession is a mixed question of law and fact. The appellants had been in exclusive possession for over 12 years, but there was no evidence of an assertion of a hostile title adverse to the plaintiff. Citing various decisions, including N. Varada Pillai v. Jeevarathnammal and Udaychand v. Subodh Gopal, the court emphasized that mere exclusive possession by a co-owner is not sufficient to establish adverse possession against other co-owners without clear proof of ouster or assertion of a hostile title. The court found that the appellants failed to establish adverse possession as there was no denial of the plaintiff's title and no evidence of ouster.4. Limitation for Filing the Suit:The appellants argued that the suit was barred by limitation. However, the court found that the possession of the appellants was not adverse to the plaintiff and thus, the suit was not barred by time.5. Improvements Made by Appellants:The appellants contended that they had made improvements to the house and the plaintiff could not claim any share in these improvements. The court held that any improvements made by the appellants at their own cost could be taken into consideration during partition, and equities could be adjusted by allotting the improved portion to the appellants.6. Share Entitlement of the Plaintiff:The appellants argued that the plaintiff could only claim a 1/3 share in the property. The court found no substance in this contention. It was pointed out that the plaintiff could claim a 2/3 share as he was joint with Yeshwantrao, who died issueless. Even assuming Yeshwantrao was separate, the deceased Baburao, the original plaintiff, was a preferential heir under the Hindu Succession Act. Therefore, the plaintiff was entitled to a half share in the property.Conclusion:The appeal was dismissed with costs, and the plaintiff was entitled to a half share in the property. The court upheld the first appellate court's preliminary decree for partition in favor of the plaintiff.