TaxTMI 
TaxTMI 
1971 (12) TMI 123
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....Alka . (Deft. 3) Ku. Kalpna (Deft. 4) Ranjit (Deft. 5) Dhodiba had five sons, Baba Saheb, Amritrao, Yeshwantrao, Bala Saheb and Baburao, the original Plaintiff in this case. All of them are now dead. Baba Saheb was the eldest son. Respondents No. 1 to 6 are the legal representatives of the deceased Baburao. The case of Baburao, the original plaintiff, as laid in the plaint, was that the parties were members of a joint Hindu family. The house in suit, bearing municipal No. 5/12, was the property of the joint family having been acquired by Dhodiba. The house has been in occupation of defendants No. 1 lo 8, who are appellants in this case. As some of the defendants started making construction in the house in assertion of a hostile title in May 1962, Baburao instituted a suit for partition on 21-6-1962 claiming half share therein. The suit was resisted by the defendands-appellants on a number of grounds. They denied that it was the self-acquired property of Dhodiba and claimed to be in adverse possession thereof. It was further pleaded that in the year 1945, the plaintiff had filed a suit for partition of this very house ....
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....s right subsists so long as the property is not partitioned. A co-sharer may at one time desire partition and institute proceedings. He may then change his mind and drop the proceedings. This would not debar him from bringing a fresh suit for partition if, under fresh circumstances, he considers a partition desirable or necessary. I, therefore, hold that this suit is not barred under Order 22, Rule 9, Civil Procedure Code. The next point urged by Shri Gupta was that the plaintiff had failed to show that the house in suit was joint family property. He pointed out that in the plaint it is stated that the house was acquired by the common ( ancestor Dhodiba but there was no evidence to that effect. It is no doubt true that the plaintiff failed to adduce any evidence to show that the house was acquired by Dhodiba but it is clear from the evidence on record that the house was joint family property and this was admitted by the defendants in their written statement in the earlier suit, vide Ex P-1. This was an Unqualified admission and has not been, in any way, rebutted. The learned additional District Judge was, therefore, perfectly right in basing his finding on this point on the admi....
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....t of the property is not enough to destroy title, was accepted. It was held in that case that although the aforesaid facts do not necessarily indicate ouster, they may do so coupled with other circumstances, such as, dealing with the property as an exclusive owner by alienating it by sale or otherwise. In this case, there is nothing to show that the appellants, at any time, alienated any part of the property in suit by transfer or otherwise. This decision also is, therefore, of no help to the appellants. Similarly, the decision of the Calcutta High Court in Debaprata Ghose v. Jnanendra A I R 1960 Cal. 381, does not, in any way, support the contention of Shri Gupta. From the observations in paragraph 12, it is clear that an open assertion of hostile title, coupled with exclusive possession and enjoyment of the property was considered necessary to establish adverse possession. A similar view Was expressed in Phul Kumari v. Sambhu Prasad A I R 1965 Pat. 87, on which Shri Gupta relied. In that case, a co-sharer in possession had been treating the entire property as his own and was not recognising the rights therein of the other co-sharers, who were out of possession and were aware of t....
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.... were in adverse possession of the property. As pointed out above, there is nothing to show that at any stage they denied the plaintiff's title. In fact, in the written statement dated 29-10-1945, in the earlier suit, vide Ex. P-1, Sadashivrao, predecessor-in-title of the appellants, had clearly admitted that the house was a joint family property and that the plaintiff could obtain his share by partition at any time (vide paragraphs 3 and 5 of the written statement). Shri Gupta urged that this admission was qualified inasmuch as it was the case of the appellants that there was another house belonging to the joint family, which was in possession of the plaintiff and that if at all a partition was to take place, both the houses should be partitioned. That would, however, not make any difference so far as the plaintiff's right to claim half share in the suit house is concerned, particularly because in this suit it was not expressly pleaded that the other house should also be brought into the hotchpotch for purposes of partition. The appellants having failed to raise that plea cannot now raise it in second appeal. Learned counsel fog the plaintiff-respondents was also at pai....