Annammma and others v. Pothen Thressiamma and others (AS 325/2001)

1 AS 325/2001 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945** **AS NO. 325 OF 2001** **AGAINST THE JUDGMENT IN OS 702/1994 OF ADDITIONAL SUB** ## **COURT,KOTTAYAM** ## **APPELLANTS/DEFENDANTS 5,6 AND LR OF 1ST DEFENDANT:** 1 ANNAMMA,AGED 71, W/O. THOMAS, MULAKUPADATHU HOUSE, VEROOR MURI, VEROOR P.O., CHETHIPUZHA VILLAGE, CHETHIPUZHA PANCHAYAT, CHANGANACHERRY TALUK. 2 LALU THOMAS,AGED 37, S/O. THOMAS, -DO3 MATHEW, AGED 60, S/O. MATHAI EYYO, -DO- -DO-. BY ADVS. SMT.PREETHY KARUNAKARAN SRI.JAYKAR.K.S. SRI.T.KRISHNANUNNI SR. SMT.M.R.MINI SMT.MEENA.A. SRI.R.RAJESH KORMATH SRI.RAHUL VARMA SRI.V.S.ROBIN SMT.SANJANA R.NAIR ## **RESPONDENTS/PLAINTIFFS AND DEFENDANTS 2 TO 4, 7 TO 9 AND LR'S OF 1ST DEFENDANT:** 1 POTHEN THRESSIAMMA, AGED 72, W/O. POTHEN, RESIDING AT CHALACKALAYA NADAPURATHU, ITHITHANAM KARA, ITHITHANAM P.O., KURICHY VILLAGE, KURICHY PANCHAYAT. 2 VALSAMMA, AGED 50, W/O. JOSEPH, MAMTHARA, PERUMPANACHI MURI, PERUMPANACHI P.O., MADAPPALLY VILLAGE, MADAPPALLY PANCHAYAT. 3 ANNAMMA @ GRACY, AGED 43, W/O. THOMAS, MAMTHARA, PERUMPANACHI MURI, PERUMPANACHI P.O., MADAPPALLY VILLAGE, MADAPPALLY PANCHAYAT. 2 AS 325/2001 - 4 MARIAMMA, AGED 40, W/O. ANTONY, KOLLANTHARAYIL, PATHAMUTTAM MURI, PATHAMUTTAM P.O., PANACHIKKAD VILLAGE, PANACHIKKAD PANCHAYAT. - 5 JOY THOMAS, AGED 50, S/O. THOMAS, MULAKUPADATHU, VEROOR MURI, VEROOR P.O., CHETHIPUZHA VILLAGE, CHETHIPUZHA PANCHAYAT. - 6 PRINCEKUTTY, AGED 55, KYTHARA HOUSE, MADUKKAMMOOD, I.E. NAGAR P.O., CHANGANACHERRY MUNICIPAL TOWN. 7 SEBASTIAN VARAMPAKATHU AGED 56, VARAMPAKATHU HOUSE, KADAYANIKKAD MURI, KADAYANIKKAD P.O., VELLAVOOR VILLAGE, VELLAVOOR PANCHAYAT. 8 JOSEKUTTY AGED 43, KOODALIL HOUSE, KURISUMMOOD P.O., CHETHIPUZHA VILLAGE, CHETHIPUZHA PANCHAYAT. - 9 SEBASTIAN, AGED 46, S/O. KURIAKOSE, THEVALAKKARA, VEROOR MURI, VEROOR P.O., CHETHIPUZHA VILLAGE, CHETHIPUZHA PANCHAYAT. - 10 ALEYAMMA @ MARYKUTTY JOHN, AGED 57, W/O. JOHN, PLAMPARAMBIL HOUSE, PIN - 686553, PERUMPANACHI MURI, MADAPPALLY VILLAGE, MADAPPALLY PANCHAYAT. - 11 MARIAMMA, AGED 51, W/O. FRANCIS, CHAKKALA HOUSE, MUTHUPLAKKAL, THOTTAKKAD P.O., THOTTAKKAD VILLAGE, VAKATHANAM PANCHAYAT. - 12 THRESIAMMA, AGED 50, W/O. SEBASTIAN, KUKKATTUKAVUMKAL HOUSE, S.N. PURAM P.O., KOOROPPADA VILLAGE, KOOROPPADA PANCHAYAT. BY ADVS. MATHEW SKARIA – FOR R6 & R9 SRI.V.J.JOSEPH ADV.COMMNR SRI.GEORGE CHERIAN SR. FOR R1 SRI.K.J.JOSEMON – FOR R6 & R9 SRI.VARGHESE P.THOMAS - FOR R1 SRI SAJESH J. MATHEW – FOR R6 & R9 **OTHER PRESENT:** 3 AS 325/2001 ## V.V ASHOKAN SR THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 6.10.2023, THE COURT ON 13.10.2023 DELIVERED THE FOLLOWING: 4 AS 325/2001 ## **JUDGMENT** (Dated this the 13[th] day of October 2023) The appellants are defendants Nos.5 and 6 and the legal heirs of the first defendant in O.S.702/1994 on the files of the Additional Sub Court, Kottayam. The suit was filed for partition and to set aside the partition deed No.2716/1981 and to ignore all subsequent documents in respect of the plaint schedule property. A prayer for injunction was also sought in the plaint. (The parties are referred to as they appeared before the court below) 2. The brief facts necessary for the disposal of this appeal are as follows:- The plaint schedule property originally belonged to Thomas Mathai, the father of the plaintiff, the first defendant, and another son of late Thomas. 5[th] defendant is the wife of 5 AS 325/2001 Thomas, who was the brother of the plaintiff. Defendant Nos.2 to 4 and 6 are his children. Thomas Mathai got the property as per partition deed No.1095 ME and the sale deed of 1102 ME. He died on 12.9.1962. His wife Aleyamma died on 18.12.1971. After the death of the parents of the plaintiff, the plaintiff, 1[st] defendant and Thomas, have 1/3[rd] in the property. Defendants No.7 to 11 are persons having some interest in the plaint schedule under defendant Nos.1 to 6. The plaintiff was residing in the marital house with her children. In 1990, when the plaintiff needed money for the expenses of her daughter's marriage , she took a loan from Urban Co-operative Bank. When the creditors of the plaintiff demanded the money back, she met the defendants and requested for partition and allotment of her 1/3[rd] share. Though they promised to purchase the share of the plaintiff within one year, they did not do it, and thereafter on 4.7.1994, the plaintiff again met defendants Nos.1 to 6 and reminded 6 AS 325/2001 them of their promise. At that point, they refused to give the share to the plaintiff, stating that there were documents to support the claim. On 9.8.1994, the plaintiff understood that the 1[st] defendant and his brother Thomas created a partition deed on 22.8.1981 partitioning the plaint schedule property among themselves without giving share to the plaintiff. In the document itself, there is a mention of a suit as O.S. No.21 of 1971 for partitioning the property. The plaintiff was not a party to the suit, and she had no knowledge about it and therefore, it was not binding on her. Defendants Nos.1 to 6 created fraudulent documents in favour of defendants Nos.7 to 11. They have no right to execute such documents. Therefore, the plaintiff prayed for partitioning the plaint schedule properties and allotting 1/3 shares. A further prayer was also sought for setting aside the partition deed No.2716 of 1981 and to ignore/avoid all documents created regarding the plaint schedule properties. Thereafter, the plaintiff sought 7 AS 325/2001 further prayer for mesne profits at the rate of Rs.2,500/- per annum. A prohibitory injunction restraining from committing waste, alienating the property, erecting any building, and cutting down any tree was also played in the plaint. 3. The 1[st] defendant filed a written statement. It was contended that after the death of the parents of the plaintiff, 1[st] defendant and Thomas never possessed the properties jointly as claimed by the plaintiff. The plaintiff had no possession over the plaint schedule properties. On the death of Thomas Mathai, the properties devolved upon succession on the first defendant and brother Thomas alone subject to the right of the life estate of mother Aleyamma. On her death, the first defendant and Thomas got absolute rights over the property. The plaintiff was married on 22.2.1943, and at that time, the father of the plaintiff gave streedhanam to her including gold and cash, as she was the only daughter. After receiving 8 AS 325/2001 streedhanam from the father, the plaintiff has no further right over her parents’ properties. 4. The 1[st] defendant filed O.S.No.21 of 1971 before the Munsiff’s court Changanacherry against Thomas for partition of properties. The suit was decreed, the appeal filed as A.S. No.39 of 1972 was allowed, and the preliminary decree was restored. Against that, the 1[st] defendant filed a second appeal before this court as S.A.No.28 of 1976, and the said appeal was allowed, and the preliminary decree was restored. Against the decree of the second appeal in S.A.No. 28 of 1976, Thomas filed a special leave Petition as S.L.P. No.6870 of 1980, which was also dismissed. When the application for passing the final decree was filed, the suit was compromised, and a partition deed No. 2716 of 1981 was executed. The plaintiff knew about the partition deed and the litigation in respect of the property. The plaintiff’s husband was examined as PW4 in O.S.No. 21 of 1971. The plaintiff had no joint 9 AS 325/2001 possession over scheduled properties. After the partition deed, A schedule properties in that document were owned and possessed by the 1[st] defendant, and B schedule was owned and possessed by his brother Thomas. Plaintiff was well aware of the partition from the date of its execution. The first defendant executed a sale deed in 1993 in favour of the 11[th] defendant, conveying 20 cents of property to him. As the plaintiff had no right over the plaint schedule properties, she was not made a party to the said document. Even if she had any right over the properties of Thomas Mathai, the said right is lost by adverse possession and limitation. From the date of death of Thomas Mathai, the 1[st] defendant and Thomas were having continuous, open, and exclusive possession over plaint schedule properties. The plaintiff was totally ousted from the properties of Thomas Mathai. So, the suit is barred by limitation and prayed for dismissal of the suit. 10 AS 325/2001 5. Defendant Nos.5 and 6 filed a separate written statement contending almost in the same line as the 1[st] defendant. 6. The plaintiff filed a replication traversing the contentions of the defendants. It was contended that no streedhanam was paid to the plaintiff. The partition deed was not executed with the consent or knowledge of the plaintiff. The plaintiff came to know of it only on 9.8.1994. There cannot be any adverse possession as claimed by the defendants. The defendants are holding the properties as Trustees. On the side of Plaintiff, PW1 to 3 were examined, and Exts.A1 to A4 were marked. On the side of defendants, DW1 and 2 were examined, and Exts.B1 to B8 were marked. After elaborately considering the oral and documentary evidence, the trial court decreed the suit and preliminary decree for partition was passed, allowing partition of plaint schedule properties by metes and bounds, and declared that 11 AS 325/2001 the plaintiff is entitled to 1/3 shares over it. It was also declared that she is entitled to mesne profits at the final decree stage. Defendants were also restrained by a prohibitory injunction from cutting down trees from alienating plaint schedule properties and also constructing buildings thereon. It is aggrieved by the said judgment and decree of the trial court in O.S. No.702 of 1994, defendants 5 and 6, and legal heirs of the first defendant have filed this appeal. 7. Heard the Senior counsel Shri Krishnanunni T. for the appellants and Shri V.V. Asokan for the respondents 8. The senior counsel appearing for the appellants argues that the decree and judgment of the lower court are against the law and evidence. The main contention raised by the counsel for the appellants is that after the death of Thomas Mathai in 1962, the claim for partition arose. Thereafter the 1[st] defendant, along with his brother, were holding as co- 12 AS 325/2001 owners and the plaintiff was ousted from her right. While holding the properties as co-owners, 1[st] defendant filed a suit against his brother, Thomas as O.S.No.21 of 1971 before Munsiff’s Court, Changanacherry, claiming partition of the properties. The plaintiff is not a party to the suit, as she does not have any right over the property. Moreover, the plaintiff was married on 22.2.1943, and at that time, she was given streedhanam by her father Thomas Mathai. Therefore, whatever right she had in the property, was lost. Therefore, she is not having any right to claim the title over the property of her father, Thomas Mathai. The suit was decreeed by the Munsiff’s Court against which Thomas filed A.S. No.39 of 1972, and the appellate court reversed the decree and set aside the preliminary decree. The 1[st] defendant filed a second appeal before this court as S.A. No.28 of 1976, and this court had restored the preliminary decree against which Thomas filed S.L.P. before the Supreme Court, which was also dismissed. 13 AS 325/2001 Thereafter, the first defendant, along with Thomas, entered into a partition, and a deed was executed as deed No.2716 of 1981, by which the properties were partitioned. All this time, the plaintiff was aware of the pendency of O.S. No.702 of 1994, A.S. Nos.21 of 1971 and 39 of 1972, S.A. No.28 of 1976 as well as S.L.P. No.6870 of 1980, and even after the execution of partition deed No.2716 of 1981, the plaintiff did not ask for partition as she was well aware that she did not have any right over the property. 9. The senior counsel further argues that a contention was raised in the written statement of the 1[st] defendant that even if the 1[st] defendant had any right over the property of Thomas Mathai, the said right is lost by limitation and adverse possession. The filing of the suit and the appeal before this court, as well as S.L.P., is constructive notice to the plaintiff, and she was aware of all the proceedings. Thus, it amounts to ouster; therefore, the plaintiff does not have any right over the 14 AS 325/2001 property. Moreover, she did not have any right over the possession or to enjoy the property, and the first defendant, along with Thomas, had possession and they alone enjoyed the property. The plea of adverse possession and limitation have been taken in the written statement. The evidence has been adduced on the side of defendants to show that there was clear ouster. The first defendant, along with Thomas, were holding the property adverse to the right of the plaintiff and, therefore, the right, if any of the plaintiff is lost by adverse possession and limitation. But the court below had entered into a wrong finding that since the plaintiff was not a party to the suit and the partition deed, the same is not binding on her. Moreover, the husband of the plaintiff was examined as a witness in O.S. No.21 of 1971; therefore, the plaintiff was aware of the suit, and what is stated in the plaint that she was unaware of the suit, is incorrect. Therefore, it can only be said that the plaintiff was aware of the suit, and the defendants 15 AS 325/2001 were holding the property adverse to the right of the plaintiff. Therefore, it is prayed that the decree and judgment are against the law on facts and evidence, and so the suit has to be dismissed. 10. The senior counsel for the respondents argued that defendant Nos.1 to 6, along with the plaintiff, are in joint possession of the property. The plaintiff was residing in her marital house with her children and taking income out of the property by engaging her own workers on the roll. The plaintiff’s husband was not looking after her, and therefore, the plaintiff had to conduct the marriage of her daughter. When the loan could not be repaid, the plaintiff requested the defendants partition the property and allot 1/3[rd] share. Though they promised to give her a share, later they refused, saying that the plaintiff did not have a share in the property. 16 AS 325/2001 11. The main contention raised by the counsel for the respondents is that the right of the plaintiff is not lost by adverse possession and limitation. A reading of the written statement of defendant Nos.1, 5 and 6 would only show a vague statement regarding adverse possession and limitation. The defendants had not adduced any evidence to prove adverse possession and limitation. Even when the defendants were examined, the evidence was to the effect that the plaintiff never asked for partition and never claimed any profits from the property, and it is only the first time the claim for partition is made in the suit. Therefore, it can be concluded that the defendants were not holding the property adverse to the plaintiff's interest and there was no animus to prove adverse possession or ouster. It is to be noted that the plaintiff had denied the receipt of streedhanam at the time of her marriage, and therefore, the right of the property is not lost. It is settled law that even if the female had received streedhanam from her 17 AS 325/2001 parents on marriage, she is entitled to claim the right to the property. Therefore, the plaintiff has an undivided right and is entitled to 1/3[rd] share of her father’s property. The senior counsel further relied on the judgments of the apex court in **P. Lakshmi Reddy v. L. Lakshmi Reddy (1957 KHC 592), Mary Roy and others v. State of Kerala and others (1986 KHC 129), Annasaheb Bapusaheb Patil and others v. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and heirs (1995 KHC 799), Darshan Singh and others v. Gujjar Singh (dead) by L.Rs. and others (2002 KHC 1122), Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita and others (2004 KHC 354), Puthumana Meenakshi Amma v. Puthumana Kalliani Amma and others [2010 (4) KHC 282], Gangadharan Nair K and others v. P.O. Bhanumathi Amma and others [2014 (2) KHC 99]** and also **Nagabhushanammai v. C. Chandikeswaralingam (2016 KHC 6181)** to contend for the proposition that ordinary 18 AS 325/2001 classical requirement of adverse possession is that it should be nec vi nec clam nec precario. To establish adverse possession one of the 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. It was also held that as between coheirs, 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. 12. It is undisputed that the plaint schedule property originally belonged to Thomas Mathai. He obtained the same as per partition deed No.1095 ME and Sale deed No. 1102 ME. Thomas Mathai and Aleyamma’s wife are no more, and therefore the plaintiff, 1[st] defendant and Thomas are the legal heirs, who are entitled to claim the share in the property of the father, Thomas Mathai. The plaintiff has filed a suit to partition her 1/3[rd] share of the property. The main contention raised by the defendants in the written statement is that the 19 AS 325/2001 plaintiff was given on marriage on 22.2.1943 after payment of streedhanam by the father, Thomas. After the payment of streedhanam, gift, and gold ornaments, she is not entitled to further right on her parents’ property. In this scenario O.S. No.No.21 of 1971 was filed before the Munsiff’s court, Changanacherry, for partition of the property against Thomas. Though a preliminary decree for partition was allowed, it went up to Supreme Court, as S.L.P. and the apex court, by dismissing the S.L.P., held that the property is liable to be partitioned and during the pendency of the final decree application, the first defendant as well as Thomas Mathai entered into a compromise and a deed was executed as Deed No.2716 of 1981. In this context, it is to be noted that the plaintiff was not made as a party in the suit nor in the partition deed executed by the first defendant and Thomas. Thus, the plaintiff was not aware of the partition deed. Even though the defendants raised a contention that the husband of the 20 AS 325/2001 plaintiff was examined as a witness in O.S.No.21 of 1971 and the plaintiff was aware of the suit, the evidence would show that the husband of the plaintiff was examined only to prove the relationship between the 1st defendant and Thomas. It is to be noted that the plaintiff never claimed partition during the pendency of the suit between the 1[st] defendant and that Thomas and never objected to the partition deed. 13. The trial court had specifically dealt with the question of adverse possession and limitation. The Trial court had held that when the plaintiff is not made as a party to the suit as well as the partition deed, it cannot be said that she was aware of the same. Even on the question, the husband of the plaintiff was examined as witness in O.S. 21 of 1971, and it will not point out that the plaintiff was aware of the suit as the plaintiff had a case that the relationship between the plaintiff and her husband has got strained and her husband was living with another lady, and the only question put to the husband of 21 AS 325/2001 the plaintiff when he was examined before the court was to show that the defendant in that suit is the brother of the plaintiff, and it was not regarding the right over the property. So, even if the husband was examined before the trial court, it cannot be said that the plaintiff was aware of the suit as the relationship between the plaintiff and her husband was strained. 14. The decision reported in **Mary Roy and others (supra)** has much significance to the facts of this case. In the said case, the apex court has declared that intestate succession to the property of Indian Christians in the territory of the erstwhile State of Travancore was to be governed by the provisions of Chapter 2 of part 5 of the Indian Succession Act. Therefore, as on the date of death of Thomas Mathai in 1962, the plaintiff, being a female Christian, is entitled to the share of her father as stated in the Indian Succession Act, 1925. 22 AS 325/2001 15. It is to be noted that the Apex court in **Lakshmi Reddy** (supra), held that to establish the adverse possession of one co-heir as against another, it is not enough to show that one of them is in the sole possession and enjoyment of the profit of the properties. 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 to constitute an ouster. Paragraph No.4 of the said judgment is extracted as follows: 4. Now, the ordinary classical requirement of the adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 at p 82: AIR 1934 PC 23 at p. 25 (A). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna, 27 Ind App 136 at p. 140 (PC) (B). But it is well settled that in order to establish adverse possession of one coheir as against another it is 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 coheir by the coheir in possession who claims his possession to be adverse, should be made out. The 23 AS 325/2001 possession of one coheir is considered, in law, as possession of all coheirs. When one coheir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other coheir’s title. (See Corea v. Appuhamy, 1912 AC 230 (C)). It is a settled rule of law that as between coheirs 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 coheir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnmml, AIR 1919 PC 44 at p. 47 (D) quotes, apparently with approval, a passage from Culley v. Deod Taylerson, 1840 (3) P and D 539: 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster ‘if other circumstances concur.’ (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F). It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a coheir by his adverse possession. ## 16. In **Annasaheb** (supra), there was occasion to consider the issue again, and it is held as follows: 24 AS 325/2001 “12. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e., a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence le. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.” 13. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.” 25 AS 325/2001 ## 17. In **Md.Mohammad Ali (** supra), it was held in paragraph Nos.19 to 25 thus:- “19. Long and continuous possession by itself, it is trite, would not constitute adverse Even non possession. participation in the rent and profits of the land to a cosharer does not amount to ouster so as to give title by prescription. A cosharer, as is well settled, becomes a constructive trustee of other cosharer and the right of the appellant and/or his predecessors in interest would, thus be deemed to be to be protected by the trustee. As noticed hereinbefore, the respondents in their written statement raised a plea of adverse possession only against the third set of the defendants. A plea of adverse possession set up by the respondents, as reproduced hereinbefore, do not meet the requirements of law also in proving ouster of a cosharer. But in the event, the heirs and legal representatives of Gayaram Kalita and Kashiram Kalita partitioned their properties by meets and bounds, they would cease to be cosharers in which event a plea of adverse possession as contra distinguished from the plea of ouster could be raised. The courts in a given situation may on reading of the written statement in its entirety come to the conclusion that a proper plea of adverse possession has been raised if requisite allegations therefor exist. In the event the plaintiff proves his title, he need not prove that he was in possession within 12 years from the date of filing of suit. If he fails to prove his title, the suit fails. 20. By reason of Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Art.65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Art.142 and 144 of the Limitation Act, 1908, that he was in 26 AS 325/2001 possession within 12 years preceding the filling of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff’s;s claim to establish his title by adverse possession. 21. For the purpose of proving adverse possession/ ouster the defendant must also prove animus possidendi. 22. However, in the event, the case of the defendant was that the predecessors in interest of the plaintiff ceased to be his cosharers for any reason whatsoever, it was not necessary for them to raise a plea of ouster. We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession have been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein. 23. The respondents herein, as noticed herein before, has failed to raise any plea of ouster. No finding has been arrived at by the High Court as to from which date they began to possess adversely against the plaintiff or his predecessors in interest. Mere non payment of rents and taxes may be one of the factors for proving adverse possession but cannot be said to be the sole factor. The High Court has not assigned any reason as to how there had been an open ouster by Prafulla Kalita since 1950. 24. Furthermore, the first appellate court applied a wrong principle of law in relation to interpretation of Art.65 of the Limitation Act, 1963. The High Court fell into the same error. 25. Possession of a property belonging to several cosharers by one cosharer, it is trite, shall be deemed that he possesses the 27 AS 325/2001 property on behalf of the other cosharers unless there has been a clear ouster by denying the title of other cosharers and mutation in the revenue records in the name of one cosharers would not amount to ouster unless there is a clear declaration that the title of the other cosharers was denied and disputed. No such finding has been arrived at by the High Court.” In the said decision, relying on the dictum reported in **Vidya Devi alias (dead) by Lrs. v. Prem Prakash and Ors.[1995 (4) SCC 496],** it was held in paragraph No.28 as follows:- “28. 'Ouster' does not mean actual driving out of the cosharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speakng, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.” ## 18. In **Nagabhushanammai** (supra), the apex court laid down the principles of _ouster_ . It is stated unequivocally in paragraph No.20 that Ouster is a week defence in a suit for partition of family property and it is strong if the defendant is 28 AS 325/2001 able to establish consistent and open assertion of denial of title, long and uninterrupted possession and exercise of right of exclusive ownership and to the knowledge of other co owner. 19. In this case, it can be seen that the plaintiff, a female Christian, is entitled to claim the share of her father on the death of her father, i.e, on the reopening of a succession. The defendants can claim adverse possession, ouster and limitation only if their pleadings are proved before the court that the plaintiff was ousted and there was an animus against the plaintiff that the defendants have openly denied her right. It is to be noted that even if the plaintiff is not in actual possession of the plaint schedule property, the co-owner who is in possession of the property is in the status of a trustee of the plaintiff. The defendants in the written statement have categorically admitted that except for filing of the suit for partition, the plaintiff never asked for partition of the 29 AS 325/2001 properties by metes and bounds nor they have asked for the profits and that the defendants never denied it. The three elements which are necessary for establishing the plea of ouster in the case of co-owner. They are : (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. So, in order to prove ouster, the co-owner who is in possession of the property should hold the property denying the right of other co-owner openly and uninterruptedly. It is well established that possession of a co-sharer is in possession on behalf of all the co-sharers, and a co-sharer in possession cannot acquire a title by adverse possession unless he has held the land in question for the statutory period after assertion of hostile title or denial of the plaintiff’s right. As against the claim of adverse possession and limitation of the 3[rd] party and that of the proof of ouster in respect of a co-owner are of 30 AS 325/2001 greater degree. Merely because the co-owner asked for a share in the income from properties, it cannot be hold that the property held by the other co-owner is adverse to the interest of the co-owner. Even though they have raised a plea of adverse possession and limitation in the written statement, they have not either in the oral evidence or by documentary evidence proved before the court the ingredients of ouster. Therefore, the trial court was justified in finding against the defendants in the issue of adverse possession and limitation. When the said contention is repelled, the only question remains is partition of the plaint schedule properties. 20. In **Mary Roys’** case (supra **)** , it was held that a female Christian is entitled to get the share of the father in succession of the property. It is also settled law that even if 31 AS 325/2001 the female is given in marriage with streedhanam, she can claim right over her father’s property. Therefore, the plaintiff has approached the court for partition of the property. The trial court, after elaborately considering the oral and documentary evidence, has come to the conclusion rightly that the plaintiff is entitled to partition and is entitled to 1/3[rd] shares of her father. When such partition is allowed and declared, it is trite law that any document which is executed without the knowledge of the plaintiff need not be set aside, and it can be restored. The trial court rightly set aside the partition executed between the 1[st] defendant and his brother, Thomas Mathai. The injunction is a consequential order and partition is allowed, and the trial court is justified on that ground. 21. Accordingly, it can be concluded that the appellants failed to prove the ouster and to claim exclusive right and 32 AS 325/2001 possession of the plaint schedule property of Thomas Mathai, and hence, the Appeal fails. In the result, the Appeal is dismissed. Sd/- ## **BASANT BALAJI,JUDGE** dl/