LAW FOR ALL

Limitation Act, 1963-Section 65 Explanation (a)-Claim of ownership of suit land by appellants after partition-Respondents claiming ownership by adverse possession and on ground of limitation-Courts below holding in favour of the respondent-Correctness of-Held, the co-sharer is not conferred a new title on partition but has an antecedent title-Hence, the limitation starts from the date the possession became adverse and not from the date of commencement of the right of ownership. Appellants-plaintiffs filed a suit before trial court for declaration of title over suit land, recovery of possession thereof and for permanent injunction from interference with their possession, against respondents- defendants. The appellants contended before the trial court that the suit land was an ancestral property belonging to the father-in-law of appellant no.1 and after his death, the property vested with the husband of appellant no.l being his son; that during the lifetime of the husband of appellant no.l, the respondents sought permission to make construction on the suit- land which was rejected by her husband; and that after the death of the husband, the respondents started constructing a compound wall without her permission. The respondents contended that they were in possession 9f the suit land for more than twelve years and that they were owners by adverse possession; and that the suit was barred by limitation. The trial court dismissed the suit on the ground that the appellants have failed to prove their title over the suit land. The first appellate court allowed the appeal of the appellants holding that they had identified the suit land and proved their title to the suit land. High Court, keeping the second appeal pending, remanded the matter to the first appellate court to decide the issue of limitation and adverse possession. On remand of the above issues, the first appellate court Held that on facts and evidence the respondents acquired title of suit land by way of adverse possession and that the suit was barred by law of limitation. The High Court confirmed the findings of the first appellate court and allowed the second appeal of the respondents. In appeal to the Court, the appellants contended that they became owners of the suit land as reversioners under registered deed of partition only in 1965 and consequently the suit filed in 1968 by the appellants was not barred by limitation; that the adverse possession in respect of suit land did not begin to run against the appellants prior to 1965; and that the respondents failed to prove three circumstances viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in claiming adverse possession. Citation: 2004 AIR 1893,2004(2 )SCR918 ,2004(3 )SCC376 ,2004(3 )SCALE172 ,2004(2 )Suppl.JT511 -Dismissing the appeal, the Court HELD: 1.1. Under the common law, there are two types of estates namely, estates in possession and estates in expectancy. Estates in remainder/reversion are estates in expectancy as opposed to estates in possession. Consequently, adverse possession against a life-tenant will not bar the reversioner/remainder from succeeding to the estate on the demise of the life-tenant. This is the reason for enacting explanation (a) to Article 65 of the said Act, which has no application to the facts of the case. [922-G-H] Ram Kisto Mandal and ANOTHER. v. Dhankisto Mandal, [1969] 1 SCR 342, distinguished. 1.2. Partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. In the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title. In the circumstances, the appellants cannot be heard to say that they became the owners of the property only when the partition deed was executed on 29.11.1965. Lastly, the appellants had asserted not only their own possession but also the possession of the husband of appellant no.l prior to his death. The starting point of limitation for adverse possession cannot be taken as 29.11.1965 and one has to take the date when the respondents' possession became adverse. [923-A-D] Hanamgowda v. Irgowda, AIR (1925) Bom 9, approved. Transfer of Property Act by Mula 9th Edition, referred to. 1.3. The defendants have to prove three elements viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in cases involving claim of adverse possession. However, in the present case there is a concurrent finding of fact recorded by the courts below to the effect that the respondents are in possession of the suit land from 1935 or in any event from 1941; that they have paid revenue cess from 1940; that they have paid property taxes; that their names were recorded in the revenue records and they were granted permission by the panchayat to construct compound wall. Moreover, in her deposition before the trial Court, appellant no.l had deposed that her husband had died six years prior to the institution of suit; that the suit land was in possession of her father-in-law and after his death it came in possession of her husband; that during the life time of her husband, the defendants had told her husband to allow them to construct a building on the land which he refused and that the respondents constructed the compound wall without their permission. In view of the above concurrent findings of fact recorded by the courts below on the issue of adverse possession, there is no reason to interfere in the matter. [923-E-H; 924-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6432 of 1998.