CRP/5868/2012 of M/s. Tricon Partners, Vs Smt. Mandala Neeraja , Fatima Nishar on 31 December 2012

ORDER:

CIVIL REVISION PETITION No.5868 of 2012

In this civil revision petition assailed order dated 14.9.2012

passed in I.A.No.763 of 2012 in O.S.No.771 of 2008 on the file of theCourt of III Additional District Judge, Ranga Reddy District, L.B.Nagar.The petitioners are the defendants 8 and 9 and the respondents arethe plaintiff and remaining defendants in the suit.

The suit was filed for partition and separate possession of theplaint schedule properties. The defendants 8 and 9 filed the I.A. underOrder XIV Rule 5 of the Code of Civil Procedure, 1908 (CPC) to framethe following additional issues.

1. Whether the plaintiff is effectively ousted from the suit scheduleproperties against the interest of D1 to D4 and D6?2.Whether the suit is barred by limitation?

The plea of the defendants 8 and 9 is that they purchased theproperties of the joint family of their vendors. In fact the plaintiff wasousted from the suit schedule properties thereby the defendants 1 to 4and 6 alone became entitled to the properties. The claim of the plaintiffis that after the death of their father she became entitled to share in theproperties as coparcener. According to her, the defendants 8 and 9,the subsequent purchasers, cannot take the plea of ouster in respect ofany item of the schedule properties, which claim is available only tothe other coparceners of the properties subject to law. It is furtheraverred that the plea is barred by limitation.

The Court below dismissed the I.A. on the ground that the plea ofouster would be available only to the joint family members. Further bythe date of filing of the suit, the sale deed in favour of the defendants 8and 9 was only eight years old whereas by virtue of the Articles 109and 110 of the Schedule to the Limitation Act in order to take the pleaof ouster he should have been in possession of the property for at least12 years subject to other relevant formalities.

Learned counsel for the petitioners/defendants 8 and 9 wouldcontend that the possession of their vendor prior to the sale of theproperty in their favour also can be taken into consideration for thepurpose of computing the period of 12 years of possession to take the plea of ouster. The Court below failed to appreciate the matterproperly thereby its order is to be set aside and the plea as prayed foris to be granted.

Learned counsel for the first respondent/plaintiff would submitthat the question of taking the plea of ouster is available to thedefendants 8 and 9 only when they got the possession of the propertyfor 12 years or more claiming to be the absolute owners of theproperty. There is absolutely no basis to say that the vendor(s) of thedefendants 8 and 9 were also in the possession of the propertyadverse to the interest of the other joint family members. Thereby thepetition is misconceived. Further the Court below properly appreciatedthe matter.

Arguments

By virtue of the Articles 109 and 110 of the Schedule to theLimitation Act in order to take the plea of ouster, the defendants 8 and9 should have been in the possession of the property at least for 12years claiming to be the absolute owners of the property openly,continuously and uninterruptedly to the knowledge of the other partieswho got interest therein. What is important is that admittedly thedefendants 8 and 9 purchased the property just eight years prior to thefiling of the suit and ever since they have been in possession andenjoyment of the property. They cannot be permitted to take the pleaof adverse possession on behalf of their vendor(s) for the period priorto the sale in their favour. It appears that it is only basing upon somesurmises and conjectures. No doubt by virtue of the sale, thedefendants 8 and 9 would have stepped into the shoes of theirvendor(s) in respect of the property. But unless their vendor(s) take theplea of ouster, there cannot be any basis for the defendants 8 and 9 totake the same plea.

In P.Lakshmi Reddy v L.Lakshmi Reddy[[1]]the Supreme Court considering possession of co-heirs of property held as follows.

The possession of one co-heir is considered, in law, aspossession of all the co-heirs. … The co-heir in possessioncannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on hisown part in derogation of the other co-heir's title. … It is asettled rule of law that as between co-heirs there must beevidence of open assertion of hostile title, coupled withexclusive possession and enjoyment by one of them to theknowledge of the other so as to constitute ouster.

In Kavitha Goud v Nookala Sudarshan Reddy[[2]]this Court held “In order to establish adverse possession in respect of a jointproperty or joint family property, ouster must be pleaded and proved”.

Thus there is no prima facie material to uphold the claim of thedefendants 8 and 9. In order to allow the petition, in fact there shouldbe some basis but not mere surmises and conjectures. The Courtbelow passed the order properly by reason of which I do not find anyreason to interfere with the same.

The civil revision petition is therefore dismissed. Miscellaneouspetitions pending if any shall stand closed.

December , 2012.YS

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(G.KRISHNA MOHAN REDDY, J)

[1](2009) 12 SCC 310(2009) 12 SCC 310

[2](2004 (5) ALT 293