Case Note & Summary
The case involves a family property dispute between the appellants (Joseph Devaraj and his sons) and the respondents (Balaraj and his wife). The appellants filed a suit for partition and separate possession of joint family properties. The trial court dismissed the suit, holding that the appellants had no right to partition as the respondents had been in exclusive possession for over 12 years and had acquired title by adverse possession. The High Court reversed the trial court's decision, holding that a co-owner in possession of joint family property cannot claim adverse possession against another co-owner without proving ouster. The court emphasized that the right to partition is a continuing right and does not extinguish by mere possession of another co-owner. The court allowed the appeal and remanded the matter to the trial court for fresh consideration on merits, directing that the issue of limitation and adverse possession be decided in accordance with law.
Headnote
A) Hindu Law - Partition - Right of Co-owner - Adverse Possession - The right to seek partition is a continuing right of a co-owner and does not extinguish by mere possession of another co-owner unless there is ouster - The court held that a co-owner in possession cannot claim adverse possession against another co-owner without proving ouster to the knowledge of the other co-owner - The suit for partition was not barred by limitation as the right to partition is a continuing right (Paras 1-10). B) Limitation Act, 1963 - Article 65 - Adverse Possession - Co-owner - For a co-owner to claim adverse possession against another co-owner, there must be clear ouster and the other co-owner must have knowledge of such ouster - The court held that mere possession by one co-owner does not constitute adverse possession against other co-owners (Paras 1-10).
Issue of Consideration
Whether a co-owner in possession of joint family property can claim adverse possession against another co-owner and thereby defeat the suit for partition?
Final Decision
Appeals allowed. The judgment and decree of the trial court dated 10.06.2009 in O.S.No.7378/1995 are set aside. The matter is remanded to the trial court for fresh consideration on merits, in accordance with law.
Law Points
- Right to partition is a continuing right of a co-owner
- adverse possession cannot be claimed against a co-owner without ouster
- limitation for partition does not run until ouster is proved
