HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No v. 1. Man Singh Son Of Bharon Singh

Judgment

1. Man Singh Son Of Bharon Singh, (Since Deceased) Through His Legal Representatives. 1/1. Rajendra Singh Son Of Late Shri Man Singh, Resident Of Mohalla Chatikna, Karauli. 1/2. Virendra @ Pappu Son Of Late Shri Man Singh, Resident Of Karauli. 1/3. Smt. Kasilash Bai D/o Late Shri Man Singh Wife Of Prem Singh, Resident Of Jadwari, Distt. Karauli.

Mst Lad Bai D/o Late Shri Bharon Singh, Wife Of Jasant Singh (Since Deceased) Through Her Legal Representatives- 2/1. Bharat Singh Son Of Jaswant Singh @ Bhorji, Resident Of Chodagaon. At present Khoj Pakadi, Tehsil Sapotra 2/2. Thopha Bai D/o Jaswant Singh @ Bhorji, Resident Of Ghurakar. 2/3. Smt. Pushpa Bai D/o Jaswant Singh @ Bhorji, Resident Of Rudi, Tehsil Sapotra, District Karauli. 2/4. Smt. Dhamli Bai D/o Jaswant Singh @ Bhorji, Resident Of Kaima, Tehsil Nadoti, District Karauli. ----Respondents For Appellant(s) : Mr. Rahul Sharma and Ms. Chanchal Mr. S.K. Gupta, senior advocate [2025:RJ-JP:23719] (2 of 9) [CSA-606/1999] For Respondent(s) : Mr. J.P. Goyal, senior advocate with Ms. Sakshi Tiwari and Ms. Meenal Bhargava HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 26/05/2025 Order

1. Instant second appeal is preferred by appellants plaintiff aggrieved from judgment dated 24.09.1999 in civil regular appeal No.12/1999 passed by learned District Judge, Karauli whereby an appeal preferred by respondent defendant No.1 Man Singh (Dead) through LRs was allowed and judgment and decree dated

03.05.1999 in civil suit No.102/1993 (01/1987) was set aside.

2. Learned counsel for appellant while relying upon grounds of appeal submitted that plaintiff Narayan Singh has filed a civil suit for partition before learned Civil Judge and after considering the evidence both oral and documentary, the suit was decreed and a preliminary decree was passed for partition. He further submitted that LRs of defendant No.1 Man Singh has filed an appeal before the first appellate court but without considering the provision of law as mandated under Order 41 Rule 31 CPC the appeal was allowed by the appellate court. He further submitted that plaintiff Narayan Singh and defendant No.1 Man Singh are brothers and admittedly the property in question is an ancestral property which was redeemed by defendant in years 1941-42 and on the basis of 1/2 share of plaintiff the trial court has granted preliminary decree of ½ share in favour of plaintiff. He further submitted that defendant has pleaded two defences firstly, redemption of mortgage by making payment to mortgagee and secondly adverse [2025:RJ-JP:23719] (3 of 9) [CSA-606/1999] possession. He further submitted that the defendant No.1 has no right to raise defence of adverse possession in any ancestral property and the appellate court has committed serious error while drawing conclusion on basis of adverse possession in favour of defendant. He further submitted that the possession of a co- sharer is normally on behalf of all co-sharers and same cannot be treated as an exclusive possession to claim adverse possession against other co-sharers. He further referred the judgment in case of Govindmmal Vs. R. Perumal Chettiar and Ors. (2006) 11 SCC 600 and Md. Mohammad Ali (Dead) by LRs Vs. Jagadish Kalita and Ors. (2004) 1 SCC 271 and submitted that possession by one co-owner is deemed to be possession on behalf of others unless ouster of another co-share is established. He further submitted that the question of adverse possession has to be drawn on the basis of material on record and not on the basis of delay in taking action. At last, he submitted that the second appeal should be allowed and after setting aside judgment of first appellate court, judgment of trial court be restored.

3. Aforesaid contentions were opposed by learned senior advocate appearing on behalf of respondents defendant and he submitted that plaintiff and defendant no.1 are brothers whereas defendant no.2 is mother and the property in question was mortgaged but same was redeemed after payment by defendant no.1 Mansingh. He further referred exhibit A3 and A5 and submitted that the plaintiff is in possession of suit property for last more than 25 years from date of filing of suit by plaintiff. He further submitted that Defendant No. 1, after purchasing adjacent property, has submitted map for approval for construction and [2025:RJ-JP:23719] (4 of 9) [CSA-606/1999] same was approved, but Plaintiff has not raised any objection on construction by defendant Man Singh. He also submitted that it is duty of the Plaintiff to take action once knowledge about redemption of Mortgage was acquired by him, but Plaintiff has not taken any action within a period of 30 years from date of redemption of mortgage. He further referred the year of redemption as 1941-1942 and submitted that at the most, suit can be filed within 30 years up to 1971-72, but this suit was filed in year 1987. He further referred delayed action by plaintiff and submitted that delay is sufficient for the plaintiff for loss of his right with regard to suit property. He further submitted that the Triad Court has erroneously decreed a suit of plaintiff without considering correct legal position. At last, he submitted that the plaintiff has no case to succeed, hence the appeal is liable to be dismissed.

4. Heard learned counsel for appellant and learned Senior Advocate for respondents. Perused the record along with judgments as cited by learned counsel for appellant.

5. The facts giving rise to institution of second appeal are that Plaintiff Narayan Singh (since deceased through Lrs), has filed a civil suit against Defendant No. 1 Man Singh (since deceased through LRs), and Defendant No. 2 Ladbhai (since deceased through LRs), for partition on the ground that a joint property of plaintiff and defendants was mortgaged to Bairulal Jwaharlal Mahajan on 27-08-1938, but this property was redeemed by plaintiff and since then plaintiff is in possession. The plaintiff has further made averment that around 4 years before the institution of civil suit, possession of suit property was handed over to the [2025:RJ-JP:23719] (5 of 9) [CSA-606/1999] defendant and defendant has purchased adjacent from of Ramzan and after purchase merged with the disputed property. The plaintiff, having 1/2 share in the property has filed a suit for partition and possession of 1/2 of share in the property. Defendants denied the averment made in plaint and in their written statement, pleaded that the plaintiff is not in possession of suit property for last more than 25 years, rather property was redeemed by defendant no.1 and since then defendant no.1 is in possession and he raised construction after procuring permission from municipality. The defendant has pleaded several defences and one of them was the suit is filed after a substantial delay and also defense of adverse possession.

6. The Trial Court has initially framed seven issues but later framed two more issues, No. 6A and 6B. The Plaintiff has examined two witnesses and exhibited five documents, whereas the Defendant has examined three witnesses and exhibited five documents. The Trial Court has decided Issue No. 2 to 4 against the Plaintiff, whereas decided Issue No. 5 and 6 against the Defendant. The Trial Court has decided Issue No. 6A in favor of Plaintiff and 6B in favor of Defendant. Also decided Issue No. 1 partially in favor of Plaintiff. As a result, the Trial Court has decreed a suit in favor of Plaintiff and declared 1/2 share of Plaintiff and directed that in case Plaintiff make a payment of Rs. 4161 and subsequent interest to Defendant No. 1, then he is entitled for 1/2 share in the suit property.

7. Aggrieved from judgment and decree by trial court, the LRs of defendant No.1 Man Singh filed an appeal under Section 96 of CPC before the first appellate court. The appellate court has [2025:RJ-JP:23719] (6 of 9) [CSA-606/1999] allowed the appeal and set aside the judgment and decree and rejected the suit of plaintiff. It is also apparent on record that LRs of defendant No.2 Laadbai have not challenged judgment and decree dated 03.05.1999.

8. While considering the appeal for admission on 03.11.2017, a Co-ordinate Bench of this court has framed following substantial question of law: “Whether the possession of co-sharer can be adverse to other co- sharer and in which circumstances?”

9. A perusal of judgment of appellate court indicated that the appellate court has set aside the judgment and decree only on the ground that defendant no. 1 is in possession since 1961-62 and he is using this property as an honor and plaintiff is not having any possession since 1961-62. Therefore, the defendant no. 1 is in adverse possession over the suit property. The appellate court, considering the defense of adverse possession, has set aside the judgment and decree passed by the trial court. The judgment dated 24-09-1999 indicated that the appellate court has not resorted for issue based discussion rather it has discussed the issue of adverse possession, defense available to defendant. Order 41 Rule 31 CPC provides for content, date and signature of judgment whereas Rule 33 provides power of court of appeal.

10. Admittedly, Plaintiff and Defendant No. 1 both are real brothers and the suit property is ancestral property and both are co-sharers in the same property. The facts proved so far indicate that this property was mortgaged on 27-10-1938 and after payment of Rs. 4161 with interest of Rs. 450 by Defendant No. 1 Man Singh, the property was redeemed in year 1941-42. The [2025:RJ-JP:23719] (7 of 9) [CSA-606/1999] Plaintiff is also not residing in this property rather Defendant No. 1 was in possession of the property on date of institution of suit.

11. In case of Govindmmal Vs. R. Perumal Chettiar and Ors. (supra) Hon’ble Supreme Court while considering a case of identical nature has held that a co-sharer becomes a constructive trustee of other co-sharers and the right of a person or his predecessors in interest is deemed to have been protected by the trustees. Hon’ble Supreme Court has further observed as under: “To prove ouster and adverse possession against a co-owner the following relevant factors may be taken into consideration: (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard-and-fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer and what is adverse to the interest of the claimant. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but [2025:RJ-JP:23719] (8 of 9) [CSA-606/1999] something more positive is required to be done. In order to succeed on the ground of ouster, the person setting up ouster is bound to show that he did set up an adverse or independent title during the period which was beyond the statutory period of 12 years. There must be a hostile open possession, denial and repudiation of the rights of other co-owners, for which one has to lead definite evidence, and this denial and repudiation must be brought home to the co- owners and how that can be proved will depend on facts of each case.”

12. In case of Md. Mohammad Ali (Dead) by LRs Vs. Jagadish Kalita and Ors. (supra) while considering Article 65 of the Limitation Act vis-a-vis adverse possession and possession of property by a co-sharer, the Hon’ble Supreme Court has held that for ascertaining such a plea, the Court may construe the entire pleadings and the cumulative effect of the averment made in the written statement. It was held that in a suit by a plaintiff, he has only to prove his title and not the possession.

13. Having considered the legal position as explained herein above, it is apparent that the Appellate Court only on the basis of defence of adverse possession of defendant No. 1 has set aside the judgment and decree passed by the Trial Court and the Appellate Court has not considered the rights of a co-sharer (plaintiff) in such a situation where ouster from the property has to be proved specifically in accordance with law. Thus, the findings recorded by the Appellate Court is perverse and illegal and not in consonance with provision of Order 41 CPC. The appellate court has not maneuvered to deal entire evidence and issues. The first [2025:RJ-JP:23719] (9 of 9) [CSA-606/1999] appellate court is last court to ascertain and decided issue of fact and it cannot decide any appeal only on one issue without considering other grounds in favour of decree holder.

14. In view of the discussion made hereinabove the appellant has able to prove that the first appellate court has committed serious error while deciding the issue of adverse possession in case a suit filed by co-sharer for partition, therefore this appeal is liable to be allowed and matter is required to be remanded back to the first appellate court.

15. In view of discussion made hereinabove, instant second appeal is hereby allowed and judgment dated 24.09.1999 in civil regular appeal No.12/1999 passed by learned District Judge, Karauli is hereby set aside. The civil first appeal is remitted back to the first appellate court with direction to re-register the appeal and decided the same within a period of three months from date of receipt of copy of this order after providing an opportunity for hearing to both the parties. The parties are directed to appear before the first appellate court on 04.08.2025.

16. Misc. application, if any, stands disposed of. PREETI VALECHA /112 (ASHOK KUMAR JAIN),J