Beharilal S/O Ramlal Vs. Jagannath S/O Ramlal - Court Judgment

Excerpt:
- madhya pradesh nagar tatha gram nivesh adhiniyam (23 of 1973)section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishna kumar lahoti & rajendra menon, jj] preparation of town development scheme proviso prescribing time limit held, object of amendment is to remove hardship caused to citizens and to provide time limit to consider objections and suggestion and to provide a deeming clause so that the authority would act in quite promptitude. proviso unequivocal, categorical and unambiguous and does not permit any other kind of construction but a singular one. section 50 (4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso is not retrospective. scheme already finalised will not lapse and has to be completed within the time span provided under proviso. no vested right accrues in favour of authority on commencement of process of preparation of scheme, which cannot be impaired by introducing proviso. section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso uses the term shall be deemed to have lapsed. it does not convey that scheme gets automatically lapsed. - the case of the defendant, therefore, was that the suit having not been filed within the prescribed period of twelve years from the order of the revenue court against the plaintiff in the year 1959, the same was clearly barred. the first appellate court also recorded a finding of fact in paragraphs 11 and 12 of its judgment that the plaintiffs case of joint enjoyment and sharing of usufruct of the land throughout, till a few months before the filing of the suit, is not supported by any reliable evidence. it has, therefore, to be held that there is no reliable evidence in proof of the plaintiffs case that the suit lands were being jointly enjoyed by the two brothers by apportioning its usufructs. 13. so far as the question of ouster is concerned, the law is well settled that as between co-owners, there could be no adverse possession unless there has been a denial of title and an ouster to the knowledge of the other. 13 that was passed by the revenue authority on 15-7-1959. the above revenue proceedings coupled with the non-participation in cultivation and sharing of profits of the land for a long period between 1958 till the finalization of the suit in the year 1977, clearly make out case of ouster against the plaintiff.d.m. dharmadhikari, j.1. in this second appeal, the only question to be decided is one of limitation. by the reversing judgment of the appeal court, the suit was dismissed as barred on the ground that the plaintiff was ousted from the suit lands prior to twelve years of the filing of the suit.2. it is not disputed that the suit, which was filed in the year 1977, for the purpose of limitation would be governed by article 110 of the limitation act, 1963, which prescribes twelve years' period of limitation for a suit of this nature by a person excluded from joint family property, to enforce a right to share therein. the limitation commences when the exclusion becomes known to the plaintiff.3. a few necessary facts for deciding the question of limitation may now be stated. the parties are step brothers. the respondent/defendant is elder of them from the first wife of their father ramlal, who died in the year 1945. it is also not disputed before me that the property in suit was joint family property, inherited by them from their father. the appellant/plaintiff claimed a share in the property by the present suit.4. the defendant/respondent resisted the suit on the ground that as back as in the year 1958, the plaintiff was ousted from the land when his claim for share by partition was opposed in revenue proceedings by filing an objection ex.d.10-a. the revenue court had passed an order on 15-7-1959 ex.d.13 directing the appellant to approach the civil court as the defendant had denied right of share to the plaintiff. the case of the defendant, therefore, was that the suit having not been filed within the prescribed period of twelve years from the order of the revenue court against the plaintiff in the year 1959, the same was clearly barred. the first appellate court accepted the plea of the defendant and dismissed the suit on the ground of limitation. the first appellate court also recorded a finding of fact in paragraphs 11 and 12 of its judgment that the plaintiffs case of joint enjoyment and sharing of usufruct of the land throughout, till a few months before the filing of the suit, is not supported by any reliable evidence.5. the learned counsel appearing for the plaintiff in this second appeal assailed the impugned judgment of the court below on two principal contentions raised by him. firstly, it was submitted that from the proceedings of the revenue court, of the year 1958, it was not proved that the intention of the defendant to oust the plaintiff from the suit land was ever made known to the plaintiff. it was contended that a copy of the objection ex.d.10.a to the partition alleged to have been filed by the defendent in the revenue court was not proved to have been served on the plaintiff. the plaintiff had denied to have in fact filed any application before the revenue authority for partition. the appellant argued that in the absence of knowledge of animus of claim of adverse title by the defendant to the plaintiff, there could be no finding of ouster so as to nonsuit the plaintiff who was admittedly a coheir and a co-owner.6. the second submission of the learned counsel appearing for the appellant was that the court below ought to have given due weight to the revenue records ex.p-1 to ex.p-6, which show that right from 1963-64 to 1973-74, both the parties continued to be jointly recorded on the lands. the learned counsel appearing for the appellant argued that revenue records raised a presumption that the parties continued to jointly hold and possess the land at least up to the year 1973-74. reliance is placed on the decision in churamani v. shri ramadhar, 1991 mplj 311 = 1990 mpjr 743 - m. p. no. 1790/88 dated 19-9-1990.7. the learned counsel appearing for the appellant also made some attempt to assail the adverse finding against the plaintiff of the appeal court that there was no joint enjoyment and sharing of usufruct from the land between the parties within twelve years of the filing of the suit.8. the learned counsel appearing for the defendant, on the other side, took me through the entire proceedings of the revenue court of the year 1958 which are exhibited in the case. it was argued that this is a clear case of ouster of the defendant to his knowledge and the conclusion of the appeal court was fully justified in law. on behalf of the respondent it was contended that merely because the lands continued to be jointly recorded in revenue papers, it could not be presumed that there was no ouster. it was argued that presumption arising from the revenue entries stands fully rebutted by overwhelming material on record, which shows that by written objection to the claim of share by the plaintiff. the defendant had denied title of the plaintiff and claimed exclusion title in himself. the counsel placed reliance on the decisions in chhotelal and ors. v. premlal and ors., 1976 mplj 562 = 1976 jlj 610, and (radhoba baloba vagh and ors. v. aburao bhagvantrao bhirole and ors., 1929 pc 231.) in support of the plea of ouster raised by the defendant, the learned counsel appearing for him argued that judicial proceedings of revenue court have sanctity behind it. the original record of the revenue case was summoned in the civil suit by order of the trial court dated 6-5-1981 passed on an application of the defendant under order 13, rule 10 of the code of civil procedure. it was submitted that those official records and the documents therein (certified copies of which are marked and retained in the record of the civil suit) constitute clear evidence of ouster of the plaintiff by the defendant as back as in the year 1958.9. in support of the above case of ouster set up by the defendant, the learned counsel for the appellant also read before me the relevant portion of the oral statement of defendant jagannath (d.w. 1) and the appellant/plaintiff beharilal (p.w. 1). it was submitted that admittedly the appellant after the death of their father had started to reside permanently with his mother in the house of their uncle gangaram. the plaintiff was said to have thus shifted to the family of gangaram, who according to the defendant had married the mother of the plaintiff and adopted the plaintiff as his son. the learned counsel appearing for the defendant also submitted that their father ramlal died in the year 1945 and immediately after his death, gangaram contracted remarriage with the mother of the plaintiff and adopted the plaintiff as their son. the attempt for partition was said to have been first made by the plaintiff in the year 1953, by making an application ex.d-4, before the revenue court. the said application for partition was said to have been rejected as not pressed by the order of the revenue court dated 13-7-1953 ex.d-12.10. counsel for the defendant then pointed out that second attempt for partition through the revenue court was made in the year 1958 by making an application for the purpose on 6-5-1958 ex.d.b, which bears thumb mark of the plaintiff as an applicant. it was then pointed out that the defendant had filed the objection before revenue court vide ex.d. 10a, in which in very categorical terms, the defendant resisted the claim of partition made by the plaintiff on the ground that he (plaintiff) had been adopted by his uncle gangaram and thus he had lost his right to claim a share in the property of their father ramlal. report of the patwari was called by the revenue court, which is marked as ex.d. 11 a. the revenue authority passed the final order in the partition proceedings on 15-7-1959 (ex.d. 13), in which there is a cleat mention of the nature of objection to the partition raised by the defendant. the revenue court by its final order advised the parties to approach the civil court for getting the dispute of title decided between them.11. on the face of above pleadings and evidence led by the parties, the main question arising before me is whether the plaintiff can be attributed with knowledge of the objection raised by the defendant to the plaintiffs claim of partition in revenue proceedings of the year 1958 so as to raise an inference of his ouster in the year 1958.12. at the very outset, i may make it clear that i am not convinced that the findings of fact arrived at by the appeal court against the plaintiff that there was no joint enjoyment of the suit lands and sharing of profits from the lands within twelve years of the suit, is liable to be interfered with on any of the grounds of alleged perversity. that finding, according to me, is based on due appreciation of oral evidence led by the respective parties and is a pure finding of fact. it has, therefore, to be held that there is no reliable evidence in proof of the plaintiffs case that the suit lands were being jointly enjoyed by the two brothers by apportioning its usufructs.13. so far as the question of ouster is concerned, the law is well settled that as between co-owners, there could be no adverse possession unless there has been a denial of title and an ouster to the knowledge of the other.(see - nirmalchand das and ors. v. mohitosh das and ors., air 1936 calcutta 106.) no comprehensive formula can be framed to test whether the possession of a co-owner in a particular case is adverse to the other. the denial of title and the animus to hold adversely should, however, be clear and evidenced by unequivocal conduct. it is not necessary, even in cases of co-owners that for ouster the possession of the other co-owner must be by violent or intimidating expulsion or repulsion, or under notice of the adverse holding, actually brought home to the other co-tenant by personal or formal communication. it is sufficient, if the contrary is not proved that the circumstances show that such knowledge may reasonably be presumed. it is true that exclusive possession by one co-owner without any claim or demand by others or non-participation in lands and profits by others does not necessarily raise an inference of ouster. in order to constitute ouster, there should be an intention to exclude the other co-owner of the possession. such intention is expressed either by assertion of exclusive title or by denial of the title of the other co-owner or by merely keeping out of possession the other co-owner in spite of protest. thus the law requires that not only there should be some overtact on the part of the co-owner in possession, but that other co-owner should have either actual or constructive notice of such act. when such notice is actually given, the possession at once become adverse. but, if no actual notice is given, it is for the co-owner claiming title by adverse possession to prove that acts done are so visibly hostile and notorious and so apparently exclusive and adverse as to 'justify an inference of knowledge on the part of co-owner sought to be ousted and of laches if he fails to discover and assert his rights.' (see - jagannath marwari and ors. v. mst. chandni bibi and other, air 1921 calcutta 647.) in the present came the partition proceedings before the revenue court of the year 1958, in which the defendant opposed claim of share by the plaintiff and filed an objection in writing marked as ex. d. 10 a, is a clear overt act of denial of title of the plaintiff by the defendant and to the knowledge of the former.14. it is difficult to accept the argument of the learned counsel appearing for the appellant that the knowledge of this written objection ex.d.10 a could not be attributed to the plaintiff, as there was nothing on record of the revenue proceedings to show that he was ever served with a copy of that objection. it is true that the plaintiff in the witness box denied his signature on the application for partition ex.d.8 and knowledge of any revenue proceedings alleged to have been instituted by him but in the face of the available record of the revenue court, the plaintiff's denial is nothing but an attempt to somehow get out of uncomfortable situation which renders his suit hopelessly barred by time. the appeal court committed no error in disbelieving the plaintiff and in accepting the case of the defendant, that there was on application filed for partition at the instance of plaintiff before the revenue authority in the year 1958 and those proceedings for partition terminated into passing of judicial or quasi-judicial order by the revenue authority marked ex.d-13 dated 15-7-1959. it can, therefore, be safely inferred that the plaintiff had the knowledge of the objection to the partition raised by the defendant in the proceedings before the revenue authority to which admittedly both were parties. the knowledge of exclusion from joint family property or the ouster may be proved directly or inferentially. i rely for the proposition on the decision in the case of abdul wahed v. mohan bashi saha and ors., air 1930 calcutta 466. paricularly the following portion in it : -'adverse possession that would extinguish a cosharer's title must be adverse to the proved knowledge of the cosharer ousted, however, notorious such possession may be. exclusion or ouster involves not merely the act of the person ousting but the state of the mind of the person ousted. knowledge on the part of the latter, therefore, is essential. such knowledge may be proved directly or inferentially. on the principle of constructive notice, it may also be proved that the cosharer against whom possession was exercised had sufficient notice of facts or sufficient information which would put a reasonable person on enquiry and on receipt of which a reasonably attentive person could not but realise that he was ousted. it is not the law that a non-diligent cosharer is bound to suffer. it is essential to find knowledge of ouster on his part.'in the present case knowledge of ouster or exclusion from the joint family land has to be inferred. the defendant has duly proved in the case that there were revenue proceedings for partition instituted by the plaintiff in the year 1958 and there was a final order passed directing him to approach the civil court for getting the question of title decided. if the plaintiff was party to that partition case, it can safely be inferred that he had knowledge of objection ex.d.10 a filed by the defendant in that case and of the final order ex.d.13 that was passed by the revenue authority on 15-7-1959. the above revenue proceedings coupled with the non-participation in cultivation and sharing of profits of the land for a long period between 1958 till the finalization of the suit in the year 1977, clearly make out case of ouster against the plaintiff. there are circumstances unequivocally telling the plaintiff that his title was denied by the defendant. the order of the revenue court was a sufficient information which should have put him, as a reasonable man, on enquiry had been excluded or ousted if not in the year 1953 when first attempt of partition was made, but undoubtedly in the year 1958 when the second attempt was made for partition by him.15. so far as the presumption arising from the revenue records showing joint entries in the names of parties is concerned, the above evidence discussed by me, on record, in my opinion, is sufficient to rebut the presumption of joint title and joint possession. from the oral evidence led by the parties, their conduct and inaction on the part of the plaintiff in not claiming his share immediately after the death of his father and within twelve years from the date of termination of the proceedings for partition in the revenue case, the version of the defendant appears to be probable that the plaintiff along with his mother had shifted to the family of his uncle and was content with the property that he was enjoying jointly with his uncle.16. as a result of the discussion aforesaid, the decision of the first appellate court deserves to be affirmed and the second appeal dismissed with costs throughout. counsel's fee shall be as per schedule, if certified.