Case Note & Summary
The case involves a Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 30.11.2015 passed by the I Additional City Civil and Sessions Judge, Bengaluru, in O.S. No. 1003/2008. The appellants are the legal representatives of the original plaintiff, Sri Ravindranath Mane, who filed a suit for partition and separate possession of the suit schedule properties. The respondents are the other co-owners, including the plaintiff's sister and the legal representatives of his brothers. The suit properties were ancestral joint family properties. The trial court dismissed the suit on the ground that some of the properties were not available for partition as they had been sold or acquired by the government, and that the plaintiff had not proved his share. The High Court allowed the appeal, holding that a co-owner cannot claim adverse possession against another co-owner without ouster, and that a preliminary decree for partition can be passed for the available properties. The court set aside the trial court's judgment and remanded the matter for passing a preliminary decree.
Headnote
A) Property Law - Partition - Adverse Possession - Co-owner cannot claim adverse possession against another co-owner unless there is ouster or denial of title - The court held that mere possession by a co-owner is not adverse to other co-owners, and the burden of proving ouster lies on the co-owner asserting adverse possession. (Paras 10-12) B) Civil Procedure - Preliminary Decree - Partition Suit - Even if some properties are not available for division, a preliminary decree can be passed for the available properties - The court held that the trial court erred in dismissing the entire suit on the ground that some properties were not available, and that a preliminary decree should be passed for the properties that are available. (Paras 13-15) C) Property Law - Joint Family Property - Presumption of Jointness - Property held by a member of a joint family is presumed to be joint family property unless contrary is proved - The court noted that the suit properties were ancestral and that the parties were co-owners. (Paras 5-7)
Issue of Consideration
Whether a co-owner in possession of joint family property can claim adverse possession against another co-owner, and whether the trial court was justified in dismissing the suit for partition on the ground that some properties were not available for division.
Final Decision
Appeal allowed. The judgment and decree dated 30.11.2015 in O.S. No. 1003/2008 passed by the I Additional City Civil and Sessions Judge, Bengaluru, is set aside. The matter is remanded to the trial court for passing a preliminary decree for partition in respect of the suit schedule properties that are available for partition. The trial court shall pass a preliminary decree within six months from the date of receipt of the copy of this judgment.
Law Points
- Adverse possession
- Co-owner cannot claim adverse possession against another co-owner without ouster
- Partition suit
- Preliminary decree
- Section 96 CPC
- Order 20 Rule 18 CPC
