Case Note & Summary
The case involves a partition suit filed by the appellants (plaintiffs) seeking partition and separate possession of their share in the joint family property. The trial court passed a preliminary decree for partition, which was challenged by the respondents (defendants) in appeal. The High Court of Karnataka, Dharwad Bench, dismissed the appeals, upholding the trial court's decree. The court held that the suit for partition is not barred by limitation as the plaintiffs were in joint possession of the property. It further held that a co-owner can alienate only his undivided share, and any alienation of the entire property or a specific portion without the consent of other co-owners is not binding on them. The court also observed that a co-owner in possession cannot claim adverse possession against another co-owner unless there is ouster or denial of title, which was not proved in this case. The appeals were dismissed with costs.
Headnote
A) Limitation - Partition Suit - Joint Possession - Article 110 of Limitation Act, 1963 - Suit for partition by a co-owner in joint possession is not barred by limitation as the right to partition is a continuing right and limitation does not apply when the plaintiff is in joint possession. (Paras 10-15)
B) Property Law - Co-owner's Right to Alienate - Transfer of Property Act, 1882, Section 44 - A co-owner can alienate only his undivided share in the joint family property; any alienation of the entire property or a specific portion without consent of other co-owners is not binding on them. (Paras 16-20)
C) Adverse Possession - Co-owner - Limitation Act, 1963, Article 65 - A co-owner in possession cannot claim adverse possession against another co-owner unless there is ouster or denial of title, which must be proved by clear and unequivocal evidence. (Paras 21-25)
Issue of Consideration
Whether the suit for partition is barred by limitation and whether the trial court correctly passed a preliminary decree for partition.
Final Decision
Both appeals are dismissed. The preliminary decree passed by the trial court is upheld. No order as to costs.
Law Points
- Partition suit
- limitation
- joint possession
- co-owner's right to alienate
- adverse possession
- Order 41 Rule 3 CPC
Case Details
2023 LawText (KAR) (08) 30
RFA No. 100301 of 2019 C/W RFA No. 100248 of 2020
Sreenivas Harish Kumar, Ramachandra D. Huddar
Smt. G. Meerabai (for appellants), Sri. Arun L. Neelopant (for respondents 1 and 2), Sri. Chetan Munolli (for respondents 3 to 6), Sri. Deepak C. Kulakarni (for respondent 7), Sri. Mallikarjun B. Hiremath (for respondent 8), Sri. J.S. Shetty (for respondents 9 and 10), Sri. Shivanand Malashetti (for respondent 12), Sri. R.V. Itagi (for respondents 15 and 16)
Smt. Latha Holeyappa Bulla and others
Smt. Jakkavva W/o. Basavaneppa Kampli and others
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Nature of Litigation
Regular First Appeals against a preliminary decree in a partition suit.
Remedy Sought
Appellants sought dismissal of the suit or modification of the preliminary decree.
Filing Reason
The respondents (defendants) challenged the trial court's preliminary decree for partition.
Previous Decisions
Trial court passed a preliminary decree for partition.
Issues
Whether the suit for partition is barred by limitation?
Whether a co-owner can alienate the entire property without consent of other co-owners?
Whether a co-owner in possession can claim adverse possession against another co-owner?
Submissions/Arguments
Appellants argued that the suit is barred by limitation as the plaintiffs were not in joint possession.
Respondents argued that the suit is within limitation and the trial court correctly decreed partition.
Ratio Decidendi
A suit for partition is not barred by limitation when the plaintiff is in joint possession. A co-owner can alienate only his undivided share, and any alienation of the entire property or a specific portion without consent of other co-owners is not binding on them. A co-owner in possession cannot claim adverse possession against another co-owner unless there is ouster or denial of title.
Judgment Excerpts
A suit for partition by a co-owner in joint possession is not barred by limitation as the right to partition is a continuing right.
A co-owner can alienate only his undivided share in the joint family property; any alienation of the entire property or a specific portion without consent of other co-owners is not binding on them.
A co-owner in possession cannot claim adverse possession against another co-owner unless there is ouster or denial of title, which must be proved by clear and unequivocal evidence.
Procedural History
The trial court passed a preliminary decree for partition. The defendants filed two Regular First Appeals before the High Court of Karnataka, Dharwad Bench, which were heard together and dismissed.
Acts & Sections
- Limitation Act, 1963: Article 110, Article 65
- Transfer of Property Act, 1882: Section 44
- Code of Civil Procedure, 1908 (CPC): Order 41 Rule 3
