Judgment:
M.V. Tamaskar, J.
1. The present second appeal arises out of a judgment and decree passed by the District Judge, Chhindwara in Civil Appeal No. 15-A/87, setting aside the judgment and decree passed by the Civil Judge, Class II, Saunsar in Civil Suit No. 11-A/82.
2. The circumstances leading the filing of the suit are as under :
One Tukdyaji had two sons, Narayan Rao and Girmaji. Tukdyaji died on 2-2-1960. Yeshibai, the wife of Tukdyaji and the mother of two sons died on 11-10-1974. In a family arrangement the holdings of 44.01 acres of land were divided between Narayan and Girmaji, out of which 23.10 acres of land fell to the share of Girmaji. Girmaji sold the said land in favour of Ramrao, Nathu and Mahadeol, the defendants in the suit for a consideration of Rs. 15,000/-. The sale deed was executed on 10-3-1965. Nathu and Mahadeol further alienated 11.55 acres of land to Smt. Rukhmanibai, Smt. Manabai, Sureshchandra and Gajanan, who were defendant Nos. 2 to 5 in the suit.
3. Appellant/plaintiff Narayanrao challenged the said transfer Under Section 170 of the M. P. Land Revenue Code on 11-12-1961 and claimed possession of the holdings sold by his brother Girmaji and mother Smt. Yeshibai, on the ground that the same were hit by Section 165(4)(b) of the Code, i.e. due to the sale the holdings were reduced to less than 10 acres of unirrigated land. The said application was dismissed as also all steps upto Board of Revenue failed. The findings of the Board of Revenue were challenged in a writ petition. The petition was dismissed on 8-3-1979. It was found that there was no fragmentation attracting Section 165(4)(b) of the Code.
4. The petitioner filed a Special Leave Petition in the Supreme Court which was dismissed upholding the view taken by the High Court.
5. If the appellant/petitioner felt that the transferees of the land/holding were really the purchaser only of the undivided interest of transferors, the transferees being in joint possession they could still file a suit for partition.
6. The present suit was filed on 13-2-1980. It was alleged in the suit that the transferees are not entitled to possession in the joint family property unless there was a partition. It was also contended that the transferees have wrongly been placed in possession and the possession should be restored to the appellant/plaintiff. The suit was proceeded ex parte against the defendants, returning a finding that 23.01 acres of land was undivided property of the joint Hindu family. Secondly that the defendants have purchased the part of the undivided share of Girmaji and Smt. Yeshibai. The plaintiff was entitled to possession of whole property and thirdly he was also entitled for mesne profits. The suit was also held to be within limitation.
7. Against the said finding, judgment and decree, an appeal was preferred before the District Judge. During the pendency of the appeal, Smt. Rukhmanibai (defendant/appellant No. 2) died on 18-4-1983. An application was made that the suit abated as a whole in absence of any substitution of legal representatives. However, the lower appellate court held that the suit would abate only against the deceased Smt. Rukhmanibai and upheld the rights of the appellant to continue the appeal. The appeal was allowed holding that the suit was barred by limitation. It was held that the proceedings initiated upto the Board of Revenue cannot be said to be bona fide pursuing the remedy in any Court having jurisdiction for condoning delay Under Section 14 of the Limitation Act. It was also held that since the suit was filed beyond 12 years of the dispossession, the defendants had perfected their title. Against the judgment and decree, this present second appeal is filed. It was admitted on the following substantial question of law :
'Whether the defendants having purchased undivided share in the joint family property, could be treated to be in exclusive possession of the property in their possession? If so, whether they could acquire title over the property by adverse possession?'
8. The learned counsel for the appellant Smt. Manisha Gupta states that the findings recorded by the lower Appellate Court holding the suit being barred by limitation is based on misconception of the legal position regarding the nature of joint undivided property.
9. Taking the ground of limitation first, there is no dispute that sale took place on 29-3-1961 and the defendants entered into possession on the basis of the same. The sale was made by Smt. Yeshibai and Girmaji in favour of Ramrao, Nathu and Mahadeo. No suit was filed challenging the transfers made. The respondents/defendants continued in possession of the suit property and claimed that they were in possession of the same in their own rights on the basis of sale made in their favour. The suit was filed on 13-2-1980.
10. Much of the arguments proceeded on the basis that the transferees continued to be joint and therefore there could not be adverse possession claimed against the members of joint family. Hindu Law by Mulla page 365 and Law of Limitation by Rustamji page 972 were relied for the proposition that the possession of co-sharers cannot be said to be adverse as long as the property continues to be co-parcenery property and secondly there being no partition the question of adverse possession does not arise. Reliance was placed on P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314.
11. These questions are considered as below :
The case of the respondents/defendants as pleaded in the Courts below was that there was already a partition between the defendant No. 6 and his father in the year 1960 and alternatively he has perfected his title by adverse possession. There is no dispute that the transfer was challenged between 1961 to 1979 before the Revenue authorities, whether such a challenge can be excluded for purposes of computation of limitation Under Section 14 of the Limitation Act. Reliance was placed by the learned counsel for the appellant on J.D. Mahadik v. Govind Rao, AIR 1974 SC 1877.
12. Section 14 of the Limitation Act contemplates an institution of the previous suit and carrying on the proceedings in the wrong Court and the plaintiff had acted in good faith. In the instant case the proceedings cannot be said to be instituted in good faith before a proper Court and continued to persist in it, not only in Revenue Courts but also in writ petition before the High Court and Special Leave petition before the Supreme Court. It cannot be said that the time consumed is liable to be excluded Under Section 14 of the Limitation Act. It cannot be said that the plaintiff could not with due care of attention discover the mistake committed in pursuing the matter in Revenue Court. The burden of bringing his case within the section lies on the plaintiff. Can it be said that plaintiff pursued the remedy before the Revenue Courts, High Court and the Supreme Court bona fide in good faith? The reference may be made to Madhorao v. Ram Krishna, AIR 1958 SC 767. It is held thus :
'On the other hand the question was whether given due care and attention the plaintiff could have discovered the omission without having to wait for about ten years or more. In view of the fact that in both the suits the plaintiff himself drew up the plaint presented them in Court and inasmuch as he had given the value of the property in the other suit it was for him to adduce the reasons as to why he failed to give the value of the property in the suit in question or waited such a long time. In the absence of such reasons it could not be said that he had acted with care and caution.
The burden of bringing his case within the section lay on the plaintiff. When he did not satisfy the initial burden which lay upon him the burden did not shift to the defendant to show the contrary.'
In Vijay Kumar Rampal v. Diwan Devi, AIR 1985 SC 1669, the principle of law is same that the person must bona fide pursue the proceedings with due diligence in good faith in Court which from a defect of jurisdiction is unable to entertain it.
13. The very fact that the Revenue Authorities could not have determined the nature of controversy, as such, pursuing the same in the Revenue Court cannot be allowed to exclude the period spent in computing the limitation. The decision of the Supreme Court in Vijay Kumar Rampal v. Diwan Devi (supra) is of no assistance to the appellant. We may incidentally also refer to Section 165(4)(b) of the M. P. Land Revenue Code, which reads as under :
'165. Rights of Transfer. - (4) Notwithstanding anything contained in Sub-section (1), no Bhumiswami shall have the right to transfer any land -
(b) If such transfer shall result in holding the area of which is below five acres of irrigated or ten acres of unirrigated land.'
A perusal of the above provision also makes it clear that the pursuit made before the Revenue Court was totally misdirected and as such did not entitle the plaintiff any exclusion of time for the same. The finding recorded by the trial Court that the suit was barred by limitation cannot be said to be perverse or wrong.
14. The next submission made in regard to the continuation of the joint possession on the reasoning that the defendants had purchased only undivided share and as such could be presumed to continue in possession as joint owners is also not tenable. In fact the transfers were made to the plaintiff along with stranger to the joint family. The possession of the defendants was adverse to the plaintiff. We may refer to P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314. It is held thus :
'The ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario.'
We may also refer to Parsini v. Sukhi, (1993) 4 SCC 375. It is held thus :
'Possession is prima facie evidence of title. Burden of proof lies on the party claiming adverse possession. He must plead and prove that his possession must be 'nec vi, nec clam, nec precario' i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.'
In the instant case, the possession is continuous open and with a positive assertion of title which can nothing but be adverse. It is not a pot a possession of co-owner or co-heir. It is true that the possession of one co-heir is considered in law in possession of all the co-heirs but in the instant case this is a definite case and there is material on record that the possession was claimed by other than co-heirs who had purchased the property and were in exclusive possession of the same to the knowledge of the plaintiff which amounts to ouster. In the instant case, the commencement of the adverse possession started notorious, hostile and exclusive in the year 1961.
15. The learned counsel for the appellant heavily relied on the passages from Rustomji on Limitation, page 972 but here the question is something different. It is stated thus :
'91. Co-sharers : Possession after partition is adverse. - When a partition has taken place, the possession of the whole property by one co-sharer is prima facie adverse thereafter to the others, and time runs forthwith against the latter. (Possession by a co-sharer) of the property after partition is adverse to the plaintiff to whom the said property has been allotted at partition. Whatever may have been the rights of parties to a partition proceedings before the partition of land, the partition creates new rights. Therefore, for however long a period a co-sharer may have been in possession of a piece of land, which on partition is allotted to another co-sharer, his adverse possession begins only from the date of partition. But in case of a joint family, possession by one member after separation in status is not per se hostile to the others and does not by itself amount to ouster.'
In the instant case as already held the possession as claimed was not a co-sharer or co-heir.
16. The lower appellate Court did not commit any error in holding the suit as barred by limitation. The appeal is accordingly dismissed and the judgment and decree passed by the lower appellate Court is maintained.