Judgment:
ORDER
1. This Second Appeal is directed against the judgment of the learned II Additional City Civil Judge, Madras, in A.S.No. 286 of 1992 confirming the judgment of the learned 12th Assistant Judge, City Civil Court, Madras, in O.S.No. 6458 of 1986. The plaintiffs in the suit are the appellants in the above Second Appeal.
2. The plaintiffs prayed for partition of the suit properties by metes and bounds into five equal shares and to allot one such share to the plaintiffs, for past mesne profits from January, 1986 to June, 1986 at the rate of Rs. 150 per mensem and for future mesne profits at the same rate.
3. According to the plaintiffs, the first defendant is the son of one C. Rajagopalachari who died in November, 1941 leaving behind him his widow Thangammal, his son the first defendant and four daughters, the defendants 2 to 4 and the mother of the plaintiffs 2 to 6. The said Rajagopalachari out of his own self earnings purchased the suit property and constructed a house and he had also inherited lands at Karai village, Kancheepuram. The first defendant is in possession and enjoyment of all the suit properties namely, the house and ground at Gopalapuram, more fully described in the schedule. The plaintiffs were under the bona fide impression that the first defendant will partition the properties and hand over the possession. The plaintiffs are the legal heirs of Saroja, one of the daughters of C. Rajagopalachari and Thangammal. Saroja died on 11.6.1971 and the plaintiffs are entitled to one-fifth share of Saroja. The suit property is in possession of the lessees and the first defendant was giving the share of his sisters till December, 1985: However, for unknown reasons he refused to pay the share of the income since January, 1986. Therefore, a lawyer's notice dated 20.3.1986 was issued demanding partition. The defendants sent a reply notice on 24.3.1986 containing false allegations. According to the plaintiffs, Saroja never consented for transfer of the properties in the name of the first defendant. The first defendant had transferred the patta and registered his name, as if he was the sole surviving legal heir. The sons and daughters of the first defendant are well settled in life, according to the plaintiffs. It is further contended that merely because the first defendant had changed the name in the revenue records and patta that will not disentitle the plaintiffs of their share of the properties left behind by their grandfather and grand mother. The plaintiffs are not aware of the lands at Kancheepuram and they reserve their rights to include whenever they got the particulars.
4. In the written statement filed by the first defendant, it was contended that it is no doubt true that Thangammal died in the year 1962. The first defendant further contends that she did not leave any property behind her to be inherited by her heirs. Soon after the death of C. Rajagopalachari in December, 1941. Thangammal surrendered her interest in the estate in favour of the first defendant being her only son and the nearest reversioner. Thereafter, the first defendant applied to the Corporation of Madras, for the transfer of ownership in his name and to the Tahsildar, Madras Taluk, for the transfer of Revenue Registry in his name. The ownership of the suit house was amended in the Municipal Registry by order dated 23.12.1942 and the patta was transferred by order dated 7.7.1943. The transfer of ownership was done only after due enquiry and with full knowledge and consent of late Thangammal. Eversince the date of surrender, the first defendant had been in exclusive possession and enjoyment. He has been paying the property tax. kist, urban land tax and other public charges and was dealing with the property as his own exclusive property. Neither Thangammal during her life time, nor late Saroja, the mother of the plaintiffs 2 to 6 and defendants 2 to 6 nor the plaintiffs 2 to 6 had ever Claimed any right or share or asserted their own right in the suit house for the past 45 years. The present suit is only a speculative one and has been filed only coerce the first defendant come to the terms since the price of the property has gone up in recent times. The contention of the plaintiffs that under the bona fide impression that the first defendant would partition the properties was false. Neither Saroja nor the plaintiffs nor defendants 2 to 4 participated in the enjoyment of the property or in the rental income of the property. They were never allowed to participate or given any share in the rental income as they have no right in the suit property. The contention that Saroja had not consented for the transfer of registry was misleading since she had no right in the property as Thangammal was not possessed of any property when she died in the year 1962 and whatever interested she had in the estate of her husband was already surrendered in favour of the first defendant in 1941 itself. The further contention of the first defendant is that in any event he has been openly and unequivocally in exclusive possession of the suit property for the past 45 years from 1941 to the knowledge of Thangammal and after her death to the knowledge of defendants 2 to 4 and plaintiffs 2 to 6 including Saroja. The first defendant has been in sole enjoyment of the suit property openly to the total exclusion and in denial of title of late Thangammal. His possession through out is adverse to the other co-sharers by excluding them and there has been open denial of title by excluding them and ousting them. Apart from ouster the first defendant also perfected his title to suit property by adverse possession. The suit was therefore, barred by limitation and the plaintiff's right in the property if any has been extinguished. The first defendant would further submit that he had performed the marriages of defendants 3 and 4 and had made improvements and repairs to the suit house by obtaining loans and by executing promissory notes and by mortgaging the suit properties. The debts were renewed from time to time and the total amount paid towards debts was about Rs. 30,000. InOctober, 1985, the first defendant had also repaired the house. In any event the plaintiffs are not entitled to possession of their alleged share unless they deposit into Court as a condition precedent towards their share of the debts incurred and paid by the first defendant and the cost of the repairs and improvements made to the suit property. Even otherwise the plaintiffs are entitled to claim only l/10th share.
5. In the written statement filed by the second defendant, it is stated that the late C. Rajagopalachari was possessed of a house which is the suit property and several acres of cultivable land in No. 121 Karai Village, near Kancheepuram and a ground plot with a tiled house in the said village. He died intestate and the family was governed by Mitakshara law as modified by the Hindu Succession Act. After the death of C. Rajagopalachari, the family continued to live as a Hindu joint family and the widow, the mother of the second defendant, and the first defendant and the unmarried daughters lived jointly in Chittoor itself. C. Rajagopalachari never lived in the suit property and it was always rented out and the rent was enjoyed by the said C. Rajagopalachari. After his death, the rent was shared equally by the widow and the first defendant and the widow did not opt to claim any maintenance. This was because she lived as a joint family with his sons. As she did not claim maintenance and preferred to share the income from the suit house, she was in possession of her half share in C. Rajagopalachari's estate at the time of passing of Hindu Succession Act, 1956. By virtue of the provisions of the said Act Thangammal became the absolute owner of the half share possessed and enjoyed by her. Thangammal died at Chittoor in 1962 and the first defendant was living with her at that time and at no point of time the first defendant was in sole possession or occupation of the house. Likewise, the lands were cultivated by tenants and the village house was never occupied and it was leased only as a granary for storing the produce from the lands. On the death of Thangammal as Class I heir, the second defendant became entitled to one fifth share of the half share of C. Rajagopalachari's estate. The fact that she had become absolute owner of the property was recognised by the first defendant. On various occasions the second defendant attended annual ceremonies of father and mother and the second defendant was regularly paid her share of the income by the first defendant to perform those ceremonies. The payments were made till 1985 by the first defendant and from 1986 he stopped paying and misunderstandings arose between the parties, She was hesitating to issue a notice to the first defendant, as she thought that her sisters would contract her for a joint action. The second defendant was not aware of the allegation in the notice sent by the plaintiffs to the first defendant and the alleged reply. The first defendant's claim of long possession and enjoyment of the property was disputed by the second defendant. As a matter of fact, the first defendant was never in possession and enjoyment of the property and only rents were being received and divided among other shares. There could be no question of any ouster. The second defendant being co-owner along with the first defendant there was no question of adverse possession. All items ofthe properties belonging to the family should have been included as the subject matter of the suit. The suit property is worth Rs. 22,00,000. The house and ground is let out to one Krishnan who used the place for himself and for running a commercial institute. The plaintiffs ought to have impleaded Krishnan also as a party to the suit. The second defendant has given the particulars of the area and tax paid. A ground plot approximately 40 feet x 100 feet with tiled house and the plinth area is about 500 sq. ft. The market value of the village house is more than Rs. 10,000. Therefore, according to the defendants, the total value of the properties would amount to Rs. 23,33,900. It is further stated that the total value of the properties was more than Rs. 23,39,000. The contention in the plaint that the first defendant was giving the share of his sisters till December, 1985 was correct. In short, the second defendant supported the case of the plaintiff and contended that as far the share to which she was entitled to, the first defendant was a trustee and the second defendant was entitled to collect the amount from the first defendant. It was further contended that the defendants were very much in possession as the first defendant has along been paying them the income from the property to the extent of their shares. The payment was not made during the year 1986. When the first defendant approached the second defendant saying that he would pay the lumpsum provided the second defendant wrote a release deed, the second defendant refused. It was further contended that the first defendant was never in possession of the property and only tenants were occupied the house and were paying rent which was distributed by the first defendant. The second defendant also estimated the value to Rs. 2,33,900. The valuation of the property was also disputed and according to the second defendant the Courts below had no jurisdiction to try the partition suit.
6. The trial Court upheld the plea of the first defendant that Thangammal, his mother, had validly surrendered her interest in his favour and that the first defendant had also clearly established ouster as against the plaintiffs and the other defendants. It was further held that since then the first defendant had also been in exclusive possession and enjoyment, thereby perfected title by adverse possession also. With the result, the trial Court held that neither the plaintiffs nor defendants 2 to 4 had any interest or title over the suit property, and dismissed the suit. The appellate Court also confirmed the said findings on appeal by the plaintiffs and dismissed the appeal. Hence the present Second Appeal by the plaintiffs.
7. Mr.R. Krishnamurthy, learned Senior Counsel, for the appellants contends as follows:
(1) There is no document to evidence the alleged surrender by Thangammal and hence the surrender has not been proved. There is no evidence to show that the entries in the revenue records were carried out with the consent of Thangammal and notice to the individuals who had a right to claim share in the property.
(2) There was also no proof of adverse possession.
(3) The evidence clearly establishes that the first defendant had executed mortgage of the property only for the benefit of all the members of family in order to perform their marriages and therefore, there was question of any ouster.
(4) There was no proper pleading by the first defendant as regard the alleged surrender or ouster.
(5) The findings rendered by the courts below are contrary to the evidence and D.W.3's evidence will support the case of the plaintiffs.
8. Mr.N. Varadarajan, learned counsel for the first respondent would however, contend that the surrender as pleaded by the first defendant was natural having regard to fact that first defendant was a disabled person and also that he had the responsibility of conducting marriages of all the daughters and that there was sufficient evidence to show that the surrender took immediate effect. He would also submit that if once surrender was proved no other issue would arise for consideration and even otherwise there was overwhelming evidence to establish ouster and adverse possession as pleaded by the first defendant, including the first defendant having dealt with the property as his own by executive mortgages and the conduct of the contesting parties in not having raised any objection eversince 1942 when the registers before the Municipality were transfered in favour of the first defendant or at least from 1962 when Thangammal died. Neither the plaintiffs nor the contesting defendants had claimed any share for more than 24 years. He would also deny the claim of the plaintiffs that they were receiving amounts and share of income out of the property from the first defendant occasionally, which according to them would amount to acknowledging the rights of the plaintiffs. According to learned counsel, the first defendant was only performing the natural obligations towards the family members of a Hindu family and nothing more.
9. In reply, Mr. R. Krishnamurthy, Senior Counsel, contended that the circumstances of mutation of Municipal records in favour of the only son was inconsequential and that by itself will not clothe the first defendant with exclusive title or rights, nor the action of the first defendant having mortgaged the property. It was further contended that under Section 100 C.P.C. it was open to this Court to interfere when the Courts below have rendered findings of fact by itself applying erroneous legal principles.
10. Several judgments were cited by both sides in support of their mutual contention dealing with the principles relating to surrender, plea and proof of ouster and also adverse possession against co-owner etc.
11. Mr.R. Krishnamurthy, learned senior counsel, for the appellant referred to the following judgments:
(i) Reliance was placed on the judgment of the Supreme Court reported in Annasaheb Bapusaheb Patil v. Balwani Babusaheb Patil, : [1995]1SCR88 , in support of the proposition that mere mutation of municipalrecords in the name of the elder member of the family was not sufficient to prove adverse possession.
(ii) Reliance was also placed on the observation of a Division Bench of this Court to the effect that the mere non participation in the income out of the property alone would not be enough to constitute ouster, as held in the judgment reported in Mohamed Ismail v. Khadirsa Rowther.
(iii) Reference was made to the observation of another Division Bench holding that the mere fact that a member of a Hindu Family was not in possession of the property will not mean that he has been ousted and that the burden of proof was heavy upon the member of the family who pleaded ouster and title by adverse possession vide judgment reported in Gopalakrishnan v. Meganathan : (1972)2MLJ481
(iv) further reliance was placed on the judgment of the Supreme Court reported in Shambhu Prasad Singh v. MST. Phool Kumari 7 others, 1971 (I) S.C.R. 181. Reference is made to the observation of the Supreme Court that adverse possession as against the co-sharer must have characteristics of adequacy, continuity and exclusiveness and the onus to establish the said characteristic was on the person claiming adverse possession. There must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other.
12. The observations of the Privy Council to the effect that where the son holds land after the father's death, he must be deemed to hold the land on behalf of the family and by that circumstances alone cannot claim exclusive title by lapse of time vide judgment reported in Sunmonu v. Disu Raphael, A.I.R. 1927 P.C. 270 were also relied upon.
13. The judgment of Mohan, J., as he then was and reported in Karunai Ammal v. Karuppa Gounder : (1980)1MLJ432 is also referred. In that judgment it was held that mere non- participation in the income of the family by one of the co- sharers will not establish ouster.
14. Learned Senior Counsel for the appellants relies on the judgment of a Division Bench of this Court in Krishna v. subbanna : AIR1929Mad611 in the context of plea of surrender by the plaintiffs. Reference is made to the observation of the Division Bench that where a widow surrenders her rights in ignorance of her rights and without realising the true position of affairs, such a surrender is not valid in law.
15. Further reliance is placed on the judgment of Ismail, J., as he then was which is reported in Mayavakoundar v. Subbaraya Koundar : (1977)1MLJ113 holding that to enable a co-owner to acquire title to the entire property to the exclusion of the co-sharers by prescription, the co-owner in possession must assert title to the knowledge of co-owners who are out of possession. In the absence of assertion of hostile title to the knowledge of the co-owners out of possession it cannot result in acquisition of title by adverse possession.
16. In order to substantiate the contention that it was open to the second appellate Court to consider the evidence under Section 103 C.P.C. and to come to a different conclusion when the finding of the lower Court was based on no evidence, reference is made to a judgment of S.S. Subramani, J. reported in Rahmathulliah Shuthari alias Peer Hazzrath v. The Muslim Jamath of Eachampatti & Others, 1997 (3) L.W, 662.
17. Per contra, in support of the points raised on behalf of the respondents. Mr. Varadarajan, has sought to rely on the following authorities.
18. With reference to the surrender as pleaded by the first defendant said to have been effected by Thangammal in his favour, reference is made to the observations of the learned author Raghavachariar in his 'Hindu Law' in paragraph Nos. 545 and 546. Reference is made to the observation that Hindu Widow can renounce the estate in favour of the nearest reversioners and by a voluntary act efface herself from the succession as effectively as if she had then died and such voluntary effacement was sometime referred to as a surrender and sometimes as relinquishment or abandonment of her rights. Such a surrender may be effected by any process having that effect provided that there is a bona fide and total renunciation. The learned author further observed that no written instrument was required under law.
19. Learned counsel also refers to the judgment of a learned single Judge of this Court reported in Periakaruppan Chettiar v. Natarajan Chettiar : (1957)2MLJ610 . After examining the facts of the particular case, the learned Judge held that it was open to a Hindu Widow to renounce the estate in favour of her nearest reversioners and by a voluntary act by effacing herself from succession as effectively as if she had died. The essential requisites of a valid surrender were that it must be in favour of the nearest reversioner, the surrender must be total and not partial, it must be bona fide and not a device to divide the property with the reversioners. It was also held that the surrender effected by a widow in ignorance of her rights was not valid in law.
20. The following observation in paragraph No. 11 of the judgment of the Supreme Court reported in Mummaredi v. Durairaja, : [1951]2SCR655 , is also relied upon.
'The doctrine of surrender or relinquishment by the widow of her interest in the husband's estate which has the effect of a accelerating the inheritance in favour of the next heir of her husband is now a well-settled doctrine of Hindu Law which has been established by long series of judicial decisions. Though the judicial pronouncements cannot be said to be altogether uniform or consistent, yet there can be no doubt as regards the basic principle upon which the doctrine rests, namely, that it is self effacement by the widow or the withdrawal of her life estate which opens the estate of the deceased husband to his next heirs at that date. It must be remembered thus observed the Judicial Committed in V. Sitanna v. Viranna, 61 Ind. App. 200 ;
'that the basis of the doctrine is the effacement of the widow's estate widow's estate and not the ex facie transfer by which such effacement is brought about. The result merely is that the next heir of the husband steps into the succession in the window's place '
The effacement may be effected by any process and it is not necessary that any particular form should be employed, All that is required is that there should be a bona fide and total renunciation of the window's right to hold the property and the surrender should not be a mere device to divide the estate with the reversioner (vide Rangasami Goundan v. Nachiappa Goundan, 46 Ind. App 72. It would be clear from the principle underlying the doctrine of surrender that no surrender and consequent acceleration of estate can possibly made in favour of anybody except the next heir of the husband. It is true that no acceptance or act of consent on the part of the reversioner is necessary in order that the estate might vest in him, vesting takes place under operation of law.'
21. Reliance is placed upon another judgment of a Division Bench of this Court reported in Ibramsa Rowther v. Sheik Meerasa Rowther : (1972)1MLJ466 . In that judgment the Division Bench held that there was a basic distinction between adverse possession as between strangers and ouster and exclusion of co- owners. In the case of adverse possession as against strangers, it was sufficient that adverse possession as against strangers, it was sufficient that adverse possession was overt and without any attempt at concealment so that the person, against whom time was running, ought with exercise of due vigilance, to be aware of what is happening. But in the case of a co-owner, the possession of one co-owner was presumed to be on behalf of the co-owners in view of the unity of the title and possession. But the Bench further pointed out that this would not mean that the co-owner who has been ousted or excluded should be expressly informed as such by the other co-owner and that if the circumstances of the case disclose, the Courts legitimately infer from the exclusive possession for a considerable length of time, that the other co-owner has been excluded to his knowledge and his title has been denied and repudiated by the hostile assertion of the co-owner in possession. The Courts may presume ouster from exclusive possession for a considerable length of time.
22. In the context of the allegation by the plaintiffs, that they were receiving some amounts from the first defendant occasionally, learned counsel contended that acts of generosity by a male member of Hindu family towards his sisters cannot mean that it was in recognition of any rights in the female members, reliance is placed upon the judgment of Mohan, J. as he then was, reported in Syed Ahamed Mohideen v. Mohamed Zainulabudeen, 1982 T.L.N.J. 363. In that case, the learned Judge held that though the evidence was to the effect that occasionally a few sums of money were paid in favour of the plaintiffs, such actions of generosity would not have the effect of militating against the theory of ouster. The learned Judge relied upon the observation of the Privy Council in the case of Appalaswami v. Suryanarayanamurti, A.I.R. 1947 P.C. 189.
23. In the context of the relevancy of mutation of municipal registry, learned counsel for the respondents refers to the judgment of Chandrakantaben v. Vadilal Bapalal, : [1989]2SCR232 , in which the Supreme Court held that in the case of gift, mutation of the name of the donee in the place of donor and exclusive possession of the property for 14 years was held to be sufficient to maintain a claim of title by adverse possession.
24. Reference is also made to the following judgments in the context of adverse possession between co-owners.
(i) Shaffiulla v. P.A. Mahaboob Saheb, 1977 T.L.N.J. 319; (ii) Moosa Khan v. Mohideen Sahib, 1978 T.L.N.J. 478; (iii) Valliammal & 2 others v. Pachaiammal, 1996 (I) L.W. 310; (iv) Ramachandran v. Balasubramanian : (1977)1MLJ454 .
25. As regards the various rulings cited above by both sides, the Courts have to be undoubtedly guided and aided by the basic principles formulated through such leading judgments. Such basic principles, if disregarded by Courts below would constitute a question of law warranting interference by this Court. Otherwise, the conclusions arrived at by both the Courts below on a fair appreciation of the evidence are nothing more than findings of face which cannot be interfered with in a Second Appeal. All the rulings cited by both parties lay down certain fundamental principles to be borne in mind while dealing with the issue of surrender, ouster and claim of adverse possession against co-owners etc., but each case has to be judged in the background of facts and evidence in that particular case. For instance, when a reference is made to a precedent that mutation of municipal records is not conclusive proof of ouster, it does not mean that the said circumstance is to be totally ignored. Similarly, when a judgment in which mutation of entry had been accepted as proving ouster is cited before the Court, it is not be construed that mutation was the conclusive evidence. It is the cumulative effect of the various pieces of evidence which should ultimate weigh in rendering verdict of ouster or adverse possession as against the co-owner. This being a Second Appeal all that we are concerned is as to whether the concurrent findings of the Court below are supported by cogent reasons and the existence of a sound and sufficient basis to support the conclusions. In my opinion, the findings of the Courts below are supported by adequate evidence as I would enlist them below.
(a) With reference to the plea of surrender, the fact that the first defendant was a disabled person is a circumstance which would probabilise the mother having exercised her discretion in his favour. The first defendant is a male member of the family who was also burdened with his responsibility to perform the marriage of the unmarried sisters and thus it was necessary to furnish D-1 with sufficient resources.
(b) Thangammal died only in the year 1962. But even before her death and during her life time also, the first defendant has been mortgaging the property in his own name during the years 1950 and 1957, disclosingonly the names of himself and his minor sons alone as the absolute owners of the property.
(c) The entries in the Municipal records were also carried out even during the life time of Thangammal herself under Exs.B.l and B.2, which are dated 20.3.1942 and 7.7.1943. Ex.B.1 indicates that the amendment of own-ership in the Revenue records had been complied with, pursuant to the first defendant's letter dated 15.12.1941. It is pertinent to note that the first defendant's father died in the year 1941 only and steps have been taken immediately thereafter. It is stated in D.W.1's evidence that such mutation was complied with only after enquiring Thangammal. Though there is no documentary evidence, to prove the same, it may be presumed that all official acts are properly carried out. It cannot be disputed that such amendments are carried out only either on personal enquiry or at least on the basis of a proper document or letter of no objection or consent by the title holder.
(d) In the background of the above facts, it would be idle to contend that Thangammal who was living along with the first defendant, was not aware of the assertion of title to the suit property by the first defendant and his positive action of mortgaging and leasing the property.
(e) The criticism on behalf of the appellants that the plea of surrender had been suddenly projected only in the written statement and not earlier cannot also be accepted. In Ex.A.2 reply notice dated 24.3.1986 issued on behalf of the first defendant, it has been stated at least in two places that Thangammal had consented for the change of ownership.
(f As pointed out earlier while dealing with the rulings, surrender can be validly effected in any manner and not necessarily in writing. If the conduct of the parties discloses that there had been a voluntary and complete effacement by the original owner it would be sufficient proof of surrender.
(g) It is pertinent to note that in the reply notice itself, the first defendant has stated that out of the income from the property and of his own, he got two of his sisters, Vaideki and Rajalakshmi married in the years 1949 and 1954 respectively and was also discharing his duties by looking after families of the sisters by providing them all the customary rites to which they are entitled. This was complied with by mortgaging the properties to meet the expenditure. Even though these assertions were sought to be challenged by the plaintiffs in the cross-examination of the first defen-dant, it is note worthy that in the plaint the plaintiffs have not put forth any plea disclaiming or disputing the positive assertion of the 1st defendant in the reply notice. The suggestions in the cross-examination are nothing but a belated venture. Therefore, the claim of the first defendant in this context deserves acceptance and if so, the marriages having been performed during the life time of Thangammal herself by the first defendant, raising funds by mortgaging the suit property, such actions of the first defendant could not have gone unnoticed by Than-gammal.
26. All the aforementioned circumstances adequately establish the claim of surrender as pleaded by the first defendant. When once the surrender of the rights of Thangammal in favour of the first defendant is established, there is an effective transfer of her rights in favour of the first defendant and no further question would arise to conclude the tide in his favour. Yet, for the sake of completion, the claim of ouster and adverse possession as pleaded by the first defendant may also be examined. Most of the reasonings as stated in the context of surrender Would apply to the claim of ouster and adverse possession also and the repetition of the same reasonings unnecessary.
27. Mutation of the Revenue records, payment of taxes, long possession of the property, management of the property, appropriation of income, the other sharers being out of possession of the property etc., each of such acts 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 all these features are found to exist coupled with the circumstances that eversince Thangammal's death in 1962 for nearly 25 years none of the contesting parties had chosen to demur about his or her rights over the property. The claim that the first defendant was paying all the parties the income from the property 'now and then', has neither been proved nor would be sufficient to rebut the clear evidence adduced on the side of the first defendant proving exclusive possession and enjoyment of the property. If there have been a regular payment as alleged by the plaintiffs; one would expect some accounts or such other evidence as would prove the alleged payments by the first defendant. Not a scrap of evidence has been filed on the side of context parties. In this context the most significant feature is that even though in the plaint it is stated that the first defendant stopped paying the share of the income from the year 1985, no evidence of any demand for the share till the suit was filed. Further feature is that there is no whisper about the stoppage of payment of the share in the suit notice Ex.A.1. Therefore, the claim that the first defendant was paying the share of the income to all the contesting parties has absolutely no basis. The suggestion put to D.W.1 has been denied by him.
28. The criticism that the property was only in the possession of the tenants is also of no help to the plaintiffs. Reference has already been made to the judgment of the Supreme Court reported in Chandrakantaben v. Vadilal Bapalal, : [1989]2SCR232 , holding that there is no necessity that the party pleading adverse possession should be in actual physical possession. The Supreme Court held that constructive possession through tenants would be sufficient.
29. As regards mutation of the Revenue records, the stand of the plaintiffs that none of the contesting parties were aware of the same for 25 long years, cannot be accepted or believed. Similarly, the failure to question the conduct of the first defendant in having subjected the property to a series of mortgages and appropriating the rental income for himself, are also circumstances, which loom large in favour of the first defendant's claim ofadverse possession. In this context it is pertinent to note that Smt. Saroja, mother of the plaintiffs 2 to 6 died in the year 1971 itself. It is positively asserted by D.W.1 that after her death, there was no contact with her family. This statement is not seriously disputed by the plaintiffs. Obviously, there had been no cordiality between the parties at least from 1971 and there was no attempt to assert title or to seek for partition till 1986 or at least to demand the share of the income from the property.
30. Though the burden of proving ouster and adverse possession is on the parties who plead so, it is also necessary to consider as to whether there is any evidence on the side of the plaintiffs to dispute or to discredit the evidence on the side of the first defendant. As regards surrender which is alleged to have taken place in the year 1941 and the subsequent events of mutation of Revenue records and assertion of exclusive ownership by the first defendant, the most competent person to speak about the same would be the second defendant and she had not chosen to depose as a witness. The last sister of the first defendant who is the fourth defendant and whose age is given as 55 years as on the date of the suit, who would also be competent to speak about the said facts and circumstances, had also chosen to keep out of the witness box. On the other hand, the plaintiffs have examined the fourth plaintiff as their only witness whose age is shown as 25 years as on the date of the suit. Her evidence would be of absolutely no help to speak about events which took place in 1941 when the alleged surrender was effected in favour of the first defendant or even in the context of subsequent events pertaining to ouster and adverse possession and the mode of enjoyment of the property by the first defendant. Her oral evidence does not advance the case of the plaintiffs in any manner. The evidence of D.W.3 (third defendant) one of the sisters of the first defendant who has chosen to support the case of the plaintiffs, does not also command acceptance. As regards surrender and mutation of Revenue records with the consent of her mother, she Would Only state that she does not know about the same. There is no attempt on her part to deny the first defendant's claim of surrender.
31. Therefore, I am unable to find any error in the ultimate conclusions arrived at by both the Courts below. The concurrent conclusions are based on appreciation of evidence and even otherwise I had examined the evidence independently and I am unable to find any error in the findings rendered by the Courts below.
32. In the result, there are no grounds to interfere with in the above Second Appeal and the same is dismissed. No costs.