Judgment:
ORDER
1. This second appeal is directed against the judgment of the learned District Judge, Coimbatore, in A.S. No.129 of 1986, reversing the judgment of the learned Principal District Munsif, Coimbatore, in O.S.No.2145 of 1981. Defendants 2 and 3 in the suit are the appellants in the above second appeal.
2. The suit was filed by the plaintiff for a decree directing the defendants to divide the suit property into three equal shares by metes and bounds and the plaintiff be allotted and put in exclusive possession of one such separate share and granting such ancillary and incidental reliefs. According to the plaintiff, late Ponnai Gowder is the common ancestor of the plaintiff and the defendants. The plaintiff is the son of Ponnai Gowder. Theother two sons of Ponnai Gowder being Dasai Gowder and Ponniah Rajan. Both of them are since dead and the first defendant is the son of Dasai Gowder, the second defendant is the wife of Dasai Gowder and the third defendant is the daughter of Dasai Gowder and they are the legal heirs of Dasai Gowder and constitute the members of his family. The fourth defendant is the son of Ponniah Rajan and the fifth defendant is the wife of Ponniah Rajan and they are the legal heirs of Ponniah Rajan constituting the members of his family. After Ponnai Gowder died in the year 1944, there was a partial partition between the plaintiff and Dasai Gowder and Ponniah Rajan in the year 1948. As disputes arose between three brothers, the matters were referred to Arbitration by Mr.C.S.Rathnasabapathy Mudaliar, who passed an award on 11.11.1951. The plaintiff obtained a decree in terms of the award on 5.4.1958 in O.P.No.92 of 1952 on the file of Sub Court, Coimbatore. The said award had become final and the plaintiff, Dasai Gowder and Ponniah Rajan were holding and enjoying the respective properties allotted in accordance with the said Arbitration award and decree. According to the plaintiff, the plaint schedule property being a building site with a tiled shed was purchased by Ponnai Gowder under a sale deed dated 20.8.1930. Though the property was an ancestral family property, liable for division between three sons of Ponnai Gowder, no division of property was effected under the decree in O.P.No.92 of 1952. The property was held in common and division was postponed. The reason why the plaint property was not divided at all was that there was a proposal to give the said property to R.Rajagopal who was a devoted employee of the family from the year 1930 and was a trusted driver of Ponnai Gowder during his life time. It was in view of the said proposal the property was left out of the partition. However, subsequently, the proposal did not materialise and was given up. Even before the death of Dasai Gowder in the year 1976, the plaintiff approached him with regard to the property, but as he was very sick, the subject was not pursued with him and no partition was effected. Subsequently, the plaintiff was approaching defendants 1 and 2 for partition of properties, but they were evading the issue and in May, 1981, the second defendant had advanced untenable contentions that the property belongs to their branch and there was no question of any partition. The plaintiff was shocked by the stand of the second defendant and subsequently, discovered that in a partition in their family of the first defendant in the year 1976 they had allotted the whole of the said property to the share of the first defendant as if their branch was entitled to the entire property.
3. In the written statement filed by the first defendant and adopted by defendants 2 and 3, it is stated that the suit property was allotted exclusively and given to Dasai Gowder who was holding and enjoying the same as his exclusive and absolute property. There was no proposal to give the property to the driver Rajagopal. Neither the plaintiff nor the said Ponniah Rajan had ever claimed any right in the said property after 1948 since when Dasai was holding the same exclusively in his own right and to the knowledge of the others. The contention that the property was held in common and the division of the same was postponed, was denied. The property was duly registered in the name of Dasai Gowder in the municipal records and he was paying taxesfor the same. He also obtained water supply connection and was also paying all the taxes to the municipality. He was also leasing out the properties and collecting rents for nearly three decades and the plaintiff had also lost his alleged right by prescription. At no point of time, neither the plaintiff nor his brother Ponniah Rajan had ever asserted any right over the property. Dasai Gowder was never approached by the plaintiff for the alleged partition. Such claims have been introduced only to support the speculative and false claim taking advantage of the mistaken description in setting out item No.7 in the Award under the head of the properties belonging to Dasai Gowder. The said mistake is being taken advantage of as an omission to contend that the property was not allotted to Dasai Gowder. The case of the plaintiff was also belied by the circumstance that the suit property is not one of the items mentioned in schedule 'C' appended to the award as one of the undivided properties left in common. The defendants further state that ever since 1948 Dasai Gowder was in exclusive possession and enjoyment of the properties in his own right to the exclusion of the plaintiff and Ponniah Rajan to their knowledge. Therefore, Dasai Gowder had perfected title by adverse possession and he never recognised the rights of others. Even before the death of Dasai Gowder, there was a partition in his branch and all the parties were aware of the partition. The building on the land was dilapidated and the tenants were cleared and the first defendant was contemplating to put up a substantial construction for which he was making arrangements. Therefore, there was no basis for the suit and the same was liable to be dismissed.
4. In the written statement filed by defendants 4 and 5, they had supported the stand of the plaintiff and had pleaded that the property was a common property and hence each branch was entitled to one-third share.
5. The trial Court on a consideration of the pleadings and the evidence held that the suit property was held by Dasai Gowder individually and there was no evidence to show that he was in enjoyment of the property only as a common owner for and on behalf of the other co-owners. It was also held that by virtue of his long possession and enjoyment he had also acquired title by adverse possession. Therefore, according to the trial Court, neither the plaintiff nor defendants 4 and 5 who belong to Ponniah Rajan's branch had any right to claim any right over the property. It was also held that the suit was not properly valued. On appeal by the plaintiff, the appellate Court held that the fact that the suit property was not included in the Arbitration proceedings would clinch the issue that the suit property was common and undivided. On the question of adverse title by defendants 1 to 3, the appellate Court held that the evidence was not sufficient to prove ouster and adverse possession as against the other co-owners. With the result, the appeal was allowed and the suit was decreed as prayed for. Hence, the present second appeal by defendants 2 and 3.
6. At the time of admission, the following substantial questions of law have been framed in this second appeal.
(i) Whether the lower appellate Court is justified in decreeing the suit totally ignoring the earlier decree for partition under an award decree in O.P.No.92 of 1952 which is admittedly an absolute partition and does it not hit by Section 11 and Order 2, Rule 2 C.P.C.?
(ii) Whether the lower appellate Court is right in decreeing the suit in spite of the clear admission by P.W.1 about the earlier partition and the non-dis-closure of the suit property to the Wealth Tax and Urban Land Tax authorities and also the declaration that he has no other property except those mentioned herein in which the suit property was not included?
(iii) Whether the lower appellate Court is right in holding that Dasai Gowder has not perfected title by adverse possession?
(iv) Whether the lower appellate Court is right in reversing the judgment of the trial Court without appreciating the cumulative effect of the docu-mentary evidence?
7. Mr.R.Gandhi, learned Senior Counsel appearing for the appellants contends that the facts that there was an oral partial partition between the joint family in the year 1948 itself and that the remaining properties were partitioned subsequently under an Arbitration Award in O.P.No.92 of 1952, are not in dispute. The stand of the appellants is that the said property was allotted to Dasai Gowder then itself in the year 1948 and therefore, there was no necessity to deal with the said properties in the subsequent partition under O.P.No.92 of 1952. That is the reason why the said property was not mentioned under 'C' schedule to the Arbitration Award listing the properties left out in the partition. Therefore, there was ample proof of allotment of the -property in favour of Dasai Gowder. Even otherwise, there was overwhelming evidence to show that from the year 1948 itself Dasai Gowder and his family had been in exclusive possession of the property asserting title and ownership to the knowledge of the other sharers. Therefore, the finding of the appellate Court rejecting the claim of adverse possession was also not sustainable.
8. Mr.T.R.Rajagopalan, learned Additional Advocate-General, appearing for the plaintiff/respondents however, contends that the fact that the property was not included in the items shown to be allotted in favour of Dasai Gowder under 'A' schedule to the Arbitration Award was a conclusive proof of the fact that it had not been allotted in favour of Dasai Gowder in the partition in the year 1948. The only witness examined on the side of the appellant namely, D.W.2, (second defendant) does not know personally about any of the facts relating to the partition which has been admitted by herself in the cross-examination. Therefore, the burden of proof to show that one of the joint family properties was not subjected to the earlier partition which had admittedly taken place was on the defendants and the burden has not at alt been discharged. On the question of adverse possession, learned Senior counsel would contend that there was no proper pleading or proof of ouster without which the plea of adverse possession cannot at all be entertained asbetween co-owners. Learned Senior Counsel also relied on a number of rulings to emphasise that mutation of municipal records or payment of property tax alone cannot lead to a finding of adverse possession as against co-owner.
9. I have considered the mutual submissions, the evidence adduced by both sides as well as the reasonings given by the lower appellate Court for reversing the judgment of the trial Court. As regards the judgment of the trial Court, I should point out that it has dealt with each and every piece of evidence and after detailed discussion, the findings have been recorded. Unfortunately, the judgment of the Appellate Court is totally inadequate and a specimen piece of perverted appreciation of evidence as would be shown below. That judgment is an example of how a judgment should not be written. The resultant position is since all the issues which are required to be decided in this second appeal relate only to question of fact to be assessed on the basis of appreciation of evidence, there is no other alternative except to remand the appeal to the lower appellate Court for reconsideration of the entire merits of the suit. But I have to point out certain glaring defects in the judgment of the appellate Court being the reason for remanding the appeal.
10. There is no dispute over the fact that the property in question was purchased by Ponniah Gowder in the year 1930 itself and therefore, the property belonged to the joint family which is certainly available for partition. While the plaintiff and defendants 4 and 5 claimed that it was not subjected to any earlier partition either in the oral partition in the year 1948 or the subsequent Arbitration Award in the year 1952, the case of defendants 1 to 3 is that the property fell to the share of Dasai Gowder in the oral partition in the year 1948 itself. It is true that in the Arbitration Award passed in the year 1952, the properties allotted to each sharer in the oral partition in 1948 had been indicated in 'A' schedule of O.P.No.92 of 1952 and the suit item has not been shown as one of the items. This is no doubt a circumstance which would weigh in favour of the plaintiff, even though defendants 1 and 2 contend that Item No.7 in the 'A' schedule was a mis-description of the suit property. But what is equally significant is that 'C' schedule of O.P.No.92 of 1952 contains list of properties which were left undivided and there is no reference to the suit properties in 'C' schedule also. This circumstance has to be considered in favour of defendants 1 to 3. If the property was not still available for division and continued to remain in common, it should have found a place in the 'C', schedule. But the appellate Court had been completely oblivious of this circumstance and significantly there is no reference to 'C' schedule in the judgment. This omission is very vital and affecting the appreciation of evidence to be considered in the context as to whether the suit property was one of the subject - matter of the earlier partition or not.
11. There is also a clear admission by the plaintiff as follows:-
The appellate Court has not at all taken note of the said admission by the plaintiff himself which is very crucial.
12. I should also point out certain reasonings and assumptions by the appellate Court which are totally baseless. For instance, in paragraph 12 of the judgment, it is stated that the 'mere inclusion of the suit property in 'B' schedule in Ex.B.1 in the share of the first defendant does not amount to a proof that the suit property was allotted to the share of Dasai Gowder in the oral partition of 1948.' The reference is obviously to Ex.A.2, the award under O.P.No.92 of 1952 and not to Ex.B.2. B' schedule is the list of properties allotted in favour of Dasai Gowder in excess of his share and specifically set apart in lieu of his having agreed to bear the payment of taxes in respect of Abkari business. It is nobody's case that the suit property was included in 'B' schedule. If it had been really included in the 'B' schedule, it would be a conclusive proof of allotment in favour of the first defendant. Therefore, the observation by the appellate Court betrays total non-application of mind or even misunderstanding of the facts of the case.
13. To the same effect is the another observation in paragraph No.13 of the judgment which is as follows:-
'The mere fact that the plaintiff has taken steps to give suit properties to Rajagopal Naidu, does not mean that the suit property exclusively belong to Dasai Gowder since there is no proof that the suit property was allotted to his share in the oral partition of the year 1948.'
It is beyond anyone's comprehension as to how the plaintiff dealing with the property on his own, could mean that the property could be claimed to belong to Dasai Gowder. The appellate Court had thought it fit to utter some words in the judgment for the sake of writing a judgment without understanding the facts and disputes.
14. The finding regarding adverse possession by the appellate Court is further more dismal and shocking. It is true that in the case of claim of adverse possession as against co-owner ouster has to be pleaded and specific and clear evidence has to be let in and the co-owner in possession has to prove his exclusive possession and title to the knowledge of the other co-owners.
15. Learned senior counsel for the respondents has referred to the following decisions in this context:
(i)P.Lakshmi Reddy v. L.Lakshmi Reddy, A.I.R.1957 S.C.314 (ii)Shambhu Prasad Singh v. Most Phool Kumari, : AIR1971SC1337 (iii)S. S. Gulam Ghouse v. S.S.A.M.Kamisul Qadri, : [1971]3SCR734 (iv) Mayava Koundar v. Subbaraya Koundar, : (1977)1MLJ113 (V) Gopathy and others v. Seshachala Naidu and others, : (1995)1MLJ213 .
16. All the above mentioned decisions undoubtedly lay down the following well accepted propositions:-
(a) There should be a pleading of ouster and it would not be sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession.
(b) The possession should be open with assertion of hostile title and to the knowledge of the co-owner.
(c) Adverse possession will commence only from the the date of ouster.
(d) The single circumstance of either mutation of records, or payment of taxes, non-participation in the rents or in management of the properties, appro-priation of income etc., each of these facts will not by itself establish ouster or adverse, possession as against co-owner. But the cumulative effect of the circumstances have to be properly weighed.
17. I had occasion to deal with a similar issue, and recently reported in Jaganathan & 5 others v. P.R.Srinivasan & 5 others, : 1999(3)CTC263 . In that case, one of the issues which arose for consideration was as to whether mutation of revenue records or payment of taxes etc. would be a conclusive proof of ouster and adverse possession. After referring to various decisions, I have held that mutation of revenue records, payment of taxes, long possession of properties, management of the property, appropriation of the income, the other sharers being out of possession of the property etc., each of such act by a co-owner by itself may not be sufficient to establish ouster or open assertion of adverse title as against another co-owner, but if most of these features are present the cumulative effect of the various pieces of evidence should ultimately weigh in rendering the verdict.
18. In the present case, defendants 1 to 3 have pleaded ouster. In paragraph No.7 of the written statement, it was contended that Dasai Gowder was in possession of the property eversince 1948 in his own right to the exclusion of the plaintiff and Ponniah Rajan to their knowledge. It has to be seen as to whether the defendants have let in proper evidence or not to prove such ouster and adverse possession.
19. In the present case, according to learned Senior counsel for the appellants, the following circumstances clearly indicate ouster and adverse possession.
(i) Mutation of Municipal and Revenue records.
(ii) Payment of property tax and water tax at least from 1958.
(iii) Subsequent dealing of the property by partition in the family of Dasai Gowder by including the suit property.
(iv) The property included in the Wealth Tax assessment and Urban Land Tax assessment of Dasai Gowder.
(v) The property let out for tenants and rents collected by Dasai Gowder.
(vi) In spite of longstanding enmity between the parties, no objection was raised either by the plaintiff or defendants 4 and 5 about Dasai Gowder's possession and enjoyment or the mutation of the revenue records.
There was also no expression or assertion of any right to any share in the income of the property at any time. In fact, Dasai Gowder died in the year 1976 and the suit was filed in the year 1981.
(vii) The plaintiff's admission that the property has not been shown either in his Wealth Tax assessment or Urban Land Tax return.
20. In the context of the above features pointed out by learned Senior counsel for the appellants, the manner in which the appellate Court had dealt with the issue cannot be sustained. The learned Judge had chosen to refer to each one of the said circumstances and in a single sentence had rejected each of them by a stereo typed expression 'merely because'. For instance, with reference to the inclusion of the property in the Urban Land Tax and Wealth Tax assessment of Dasai Gowder, he has stated as follows:-
'The mere fact that the first defendant has shown the said property in Exs.B.13 and B.17 cannot exclusively prove that it now belongs to him. .......'
21. No reason is given for rejecting Exs.B.13 and B.17. Likewise, the appellate Judge, has used this phraseology (merely because) atleast more than 10 times in his judgment while dealing with each of the circumstances favourable to the first defendant. This is not the proper manner in which the cumulative effect of all the features are to be assessed while considering the claim of ouster and adverse possession.
22. Therefore, I am inclined to remit the matter to the lower appellate Court for fresh consideration of the merits of the entire appeal. The appellate Court shall reconsider the merits of the appeal in its entirety and record proper findings on all the issues in accordance with law. The appellate Court will arrive at its conclusion, on its own without being influenced by any of the observations contained in this judgment. The appellate Court shall dispose of the appeal within a period of three months from the date of receipt of a copy of this judgment alongwith the connected records.
23. In the result, the second appeal is allowed and remanded to the lower appellate Court as indicated above. No costs.