Defendants 1 and 2 in a suit for partition are the appellants. The plaint schedule property originally belonged to one Chandu, who died in 1963 or 1964 leaving behind his wife and four children. Those four children are Sarasu, Sharada (D3), Balan, (D1) and Rarichutty (D2). Sarasu died and her legal representatives are the plaintiffs. Chandu and two sons formed the joint family. Thus, Chandu was having 1/3 share in the plaint schedule property. Chandu's 1/3 right devolved upon his wife and four children. His wife subsequently died. Consequent to the death of Chandu and his widow, Chandu's 1/3 share devolved upon his four children. Thus, deceased Sarasu's < share in 1/3 share devolved upon her two children, the plaintiffs. Similarly, < share in 1/3 share (1/12 share) devolved upon the 3rd defendant Sharada as well.
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2. Defendants 1 and 2 resisted the suit contending that the right, if any, of the plaintiffs and the 3rd defendant was lost by ouster, adverse possession and limitation. It was contended that the partition deed was entered into in the year 1974 between D1 and D2, excluding the plaintiffs and the 3rd defendant. It was also contended that Ext. B1 is the gift deed dated 20.9.1974 executed by Balan (D1) in favour of Rarichutty (D2). Ext.B2 is the purchase certificate obtained by them from the Land Tribunal. Ext.B3 is the document as per which Rarichutty (D2) assigned 8 cents of land to the 1st defendant - Balan.
3. Though no document was produced to show the exact date of death, it is contended that the wife of Chandu died somewhere in 1969. The suit was filed only in 1995. Thus, defendants 1 and 2 contend that the right of the S.A. No. 496/2001 -3- plaintiffs and D3, if any, in the plaint schedule property was lost by ouster, adverse possession and limitation. The courts below relied upon the revenue receipts and other receipts including Ext.B2 purchase certificate and Ext.B3 assignment deed executed by Rarichutty (D2) in favour of Balan (D1) to accept the case of the defendants. Besides, there is also evidence to show that D1 had constructed a pucca residential house in the property which was allotted to him as per the partition deed of 1974. Hence, the trial court came to the conclusion that the right of the plaintiffs and the 3rd defendant was lost by ouster, adverse possession and limitation and hence the suit was dismissed.
4. The lower appellate court reversed the finding holding that there is no specific pleading and that when DW1 mounted the box he did not mention the basis on which he claims that the right of the plaintiffs and the 3rd S.A. No. 496/2001 -4- defendant was ousted. In other words, the lower appellate court found that there is no evidence of exclusion of the plaintiffs and the 3rd defendant and in the absence of any other material Exts. B1 and B2 can only be treated as a secret arrangement and that there was no open assertion of hostile title nor was the plaintiffs and the 3rd defendant put to notice of the so called assertion of hostile title so as to contend that the right of the plaintiffs and the 3rd defendant was ousted. Unlike a claim made by strangers that they perfected adverse possession and limitation, so far as the co-owners are concerned, the presumption is that one co- owner possesses the property on behalf of the others as trustees and so the possession by one co-owner should be deemed to be possession by all the co-owners. If one co- owner wants to project the plea of ouster then there must be specific pleading as to how the other co-owner was excluded. Unless the other co-owner, whose right is stated S.A. No. 496/2001 -5- to be lost by adverse possession and limitation, there must be concrete evidence to show how the co-owner was ousted. The document, if any, created by the plaintiffs should have been made known to the other co-owners. Here even the partition deed of 1974 was not produced by the contesting defendants.
5. It is pointed out by the learned counsel for the respondents that if Chandu's wife died in 1969; by the time the document was executed in 1974 (as alleged), the right of the plaintiffs and the 3rd defendant could not have been lost by adverse possession. Regarding the construction of the residential building by the 1st defendant in the said property it is pointed out that the plaintiffs were entitled to get only 1/12 share in the property measuring about 37= cents. So when the uncle was constructing a building in the property, the plaintiffs being the nephews and nieces, need not raise any objection since the right of the plaintiffs will S.A. No. 496/2001 -6- not be affected by such construction. Therefore, the fact that the construction of the building was not objected to by the plaintiffs and 3rd defendant cannot be a reason to state that their right was totally excluded.
6. The learned counsel for the appellant would submit that the lower appellate court was carried away by the statement made by DW1 in cross examination that he could not explain how the right of the plaintiffs and the 3rd defendant was ousted. The learned counsel further submits that it would be difficult for a witness to answer when such a question was put and so, it cannot be projected as a reason to say that the plea of ouster was not established. It is further submitted that though DW1 has given evidence regarding the partition and the subsequent gift deed and assignment deed and also regarding the construction of the house, no question was put to DW1 challenging those aspects. But the learned counsel for the respondents would S.A. No. 496/2001 -7- submit that the fact that the 1st defendant had constructed a building and that some documents were executed between them cannot be a reason to hold that the right of the plaintiffs and the 3rd defendant is ousted.
7. There is no case for the contesting defendants that the plaintiffs and the 3rd defendant were given notice of the partition deed allegedly entered into in the year 1974 or the execution of the subsequent document. Therefore, it cannot be said that there was an open assertion of hostile title with the animus to exclude the plaintiffs and the 3rd defendant. If so plea of ouster and adverse possession cannot be sustained. The view taken by the lower appellate court is only to be sustained.
8. The learned counsel for the appellants would submit that there was no dispute regarding the fact that the 1st defendant has constructed a pucca residential house in the said property. The learned counsel for the respondents S.A. No. 496/2001 -8- would submit that there was an old house in the property and so the plaintiffs and 3rd defendant are entitled to get share in respect of that building. The evidence regarding renovation or re-construction of the old house in 1976 was not challenged by the plaintiffs or the 3rd defendant. The learned counsel for the appellants would submit that though there was an old building; by spending huge amount, repair and renovation was done by the 2nd defendant and that was not objected to by the plaintiffs. There is no case for the plaintiffs that from the plaint schedule property the sharers would get sufficient income so as to effect repairs and maintenance. Therefore, it cannot be said that the said building was repaired and renovated using the funds obtained from the plaint schedule property.
9. Considering all the aspects, I find that the newly constructed building shall be allotted to the share of the 2nd defendant without valuation. The old house situated in the S.A. No. 496/2001 -9- property shall be allotted to the share of the 1st defendant. The preliminary decree granted by the lower appellate court is confirmed and this Second Appeal is dismissed but with the slight modification of the preliminary decree as above.
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N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj