Case Note & Summary
The present regular second appeal arises out of a partition suit originally filed as O.S. No. 9/1993 on the file of the Munsiff & JMFC, Koratagere. The suit was filed by the respondents (plaintiffs) against the original appellant Ranganahumaiah (since deceased, represented by his legal representatives) seeking partition and separate possession of their share in the joint family properties. The trial court decreed the suit on 13.10.1997, granting the plaintiffs a 1/3rd share each in the suit schedule properties. Aggrieved, the defendant filed R.A. No. 213/2004 before the II Additional District Judge, Tumakuru, which was dismissed on 29.09.2006, confirming the trial court's judgment and decree. Hence, the present second appeal under Section 100 CPC. The facts reveal that the suit properties originally belonged to one Dandi Rangappa, who had three sons: Ranganahumaiah (the original appellant), Kemparangaiah (respondent No. 3), and one other son who died issueless. The plaintiffs are the sons of Kemparangaiah. The defendant Ranganahumaiah claimed that he had acquired absolute title by adverse possession, having been in exclusive possession for over 12 years. The trial court and the first appellate court concurrently held that the defendant failed to prove ouster or hostile possession against the co-owners. The courts below found that the property was joint family property and that the plaintiffs were co-owners entitled to partition. The legal issues framed were whether the appellants had perfected title by adverse possession and whether the suit was barred by limitation. The appellants argued that they had been in exclusive possession since 1960 and that the suit filed in 1993 was beyond limitation. The respondents contended that co-ownership continued and that there was no ouster. The High Court, in its analysis, relied on the settled principle that a co-owner in possession cannot claim adverse possession against other co-owners unless there is clear ouster and denial of title to the knowledge of others. The court found that the appellants failed to prove any overt act of ouster. Regarding limitation, the court held that a suit for partition by a co-owner is not barred by limitation as long as co-ownership is not disputed. The court also noted that the concurrent findings of fact were based on evidence and not perverse. Consequently, the High Court dismissed the appeal, holding that no substantial question of law arose for consideration.
Headnote
A) Property Law - Adverse Possession - Co-owner - A co-owner in possession of joint family property cannot claim adverse possession against other co-owners unless there is clear ouster and denial of title to the knowledge of others - Held that mere long possession without ouster does not convert permissive possession into hostile title (Paras 10-15). B) Limitation - Partition Suit - Co-ownership - A suit for partition by a co-owner is not barred by limitation as long as the co-ownership is not disputed and the property remains joint - Held that Article 65 of Limitation Act, 1963 does not apply to partition suits (Paras 16-18). C) Civil Procedure - Second Appeal - Concurrent Findings - Under Section 100 of Code of Civil Procedure, 1908, the High Court will not interfere with concurrent findings of fact unless there is a substantial question of law or perversity - Held that no substantial question of law arises (Paras 19-22).
Issue of Consideration
Whether the appellants have perfected title by adverse possession over the suit property and whether the suit for partition is barred by limitation.
Final Decision
The High Court dismissed the second appeal, holding that no substantial question of law arises. The concurrent findings of the courts below were upheld, and the suit for partition was decreed in favor of the respondents.
Law Points
- Adverse possession against co-owner requires clear ouster
- Partition suit not barred by limitation if co-ownership exists
- Concurrent findings of fact not interfered with in second appeal under Section 100 CPC
