1. This first appeal by the defendant Nos. 1, 5 and 6 /appellants is directed against the judgment and decree dated 13.08.2002, passed by Fifteenth Additional District Judge (Fast Track), Jabalpur in C.S. No.62-A/1998, whereby the suit of plaintiff for partition and declaration in respect of the suit property was decreed.

2. Facts in nutshell are that plaintiff-Deshbandu Golchha filed a suit for 1/7 share in the suit property, i.e., House No.183, Sarafa Ward, Jabalpur, 8 acres agricultural land of village Bilgawana and ornaments and for declaration that defendants No. 5 and 6 acquired no right and title on the basis of partition deed dated 23.01.1996 executed by Smt. Chhotibai (plaintiff's mother).

3. The relevant family genealogy of both the parties are as follows :-

4. Plaintiff’s case was that his late father Sunderlalji had two wives. From his first wife, he had a son, namely Jineshwardas Golchha and from his second wife Chhotibai, six sons and one daughter. Sunderlalji executed a family arrangement (partition deed) (Ex.D-10) on 24.05.1961, between (Party No.1) himself including his children from the second wife and (Party No.2) his son Jineshwardas from the first wife. In that partition, the suit property, House No.183, Sarafa ward and agricultural lands of village Bilgawana and other movables were allotted to first party share, making them joint holder of the suit property. Sunderlalji died on 16.07.1981. During the life time, the agricultural land and appliances were partitioned and mutated in the respective names of his legal representatives, but House No. 183, Safara Wards was not partitioned as the mother Chhotibai was alive.

5. The further case of the plaintiff was that mother Chhotibai by way of partition deed dated 23.01.1996, partitioned the suit house between herself, defendant No.1, defendants No.5 and 6 and also vide Will dated 15.09.1995 bequeathed the agricultural land of eight acres, though Chhotibai had no right to alienate or transfer the suit house or agricultural land of area 8 acres as she was not the absolute owner thereof and was occupying the same as co-sharer. As per plaintiff, he came to know about the mutation of name of appellant No.1 and Chhotibai in the municipal records, when he asked for partition after the death of his mother Chhotibai in the year 997. It was further stated that mutation of names of defendants/appellants, therefore, did not confer any right in the joint family properties. Chhotibai died on 18.12.1997. According to the plaintiff, the partition of the suit house was void, as mother Chhotibai had one share as per the 1961 family partition and rest all the brothers/sister were entitled for 1/7 share in the suit house, agricultural land of Bilgawana and the ornaments. Hence, after giving the notice (Ex. P-1), the suit was filed on 14.05.1998.

6. During the pendency of the suit, plaintiff Deenbandu remained absent and on 17.07.2001, suit relating to him was dismissed with cost. However, the suit was continued by defendant No.3/Shantilal, who was transposed from defendant No.3 to plaintiff No.2 pursuant to I.A. dated 17.11.1999 underOrder 1 → Rule 10(2 → "> Order 1 Rule 10(2) of C.P.C., which was allowed vide order dated 17.04.2000.

7. Defendants/appellants filed a joint written statement interalia contending that as per the 1961 partition deed, their late father Sunderlalji and mother Chhotibai got house No.183, Safara Ward and 23 acres of land in their share and since thereafter they were in occupation of the properties as absolute owner and after the death of Sunderlalji, their mother Chhotibai executed a partition deed dated 23.01.1996 (Ex.D-1) and a Will dated 15.09.1995 (Ex. D-36) as per the wishes of late Sunderlalji, bequeathing the suit property to defendants No.1, 5 and 6/appellants out of natural love and affection in lieu of their devotion to their parents. The Will came into effect on 18.12.1997, on the death of Chhotibai. It is contended that at the time to partition in 1961, all brothers including plaintiffs were allotted their respect shares and accordingly their names were mutated in their respective land/share.

8. The defendants/appellant also claimed perfection of their title over the suit property by virtue of their possession since 1981, when their father Sunderlalji died, contending that the name of Vimalchand (defendant No.2) alongwith mother Chhottibai was mutated over the suit house, hence the suit filed after 12 years was time barred.

9. The learned Trial Court in view of the pleadings of the parties framed the following issues :-

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10. After analyzing the evidence brought on record, by reason of the judgment and decree dated 30.09.2002, the learned Court opined that plaintiff is entitled to 1/7 share in the suit house No.183 at Sarafa Ward and in the land S.No.120 at Bilgawan, area 3.34 hectares. It was held that in 1961 partition, the suit property had fallen into the share of party No.1, i.e., Sunderlal with other co-owners. Further Late Sunderlal had no right to transfer the suit property to Chhottibai, who in turn could not have transferred the suit house to defendant No.6 and 7, as she was not the absolute owner. The ‘Will’ (Ex.D-36) was held to be not proved. It was further held that ‘partition deed’ (Ex.D-10) did not confer any right and title to defendant No.6 and 7.

11. Aggrieved by the judgment and decree dated 13.08.2002, the appellants preferred the present appeal. This Court vide order dated 19.03.2020, remand the matter for adjudication on two additional issues:-

"(1) Whether appellant/defendant No.1 has prescribed title by adverse possession through ouster of the other cosharers from the suit property beyond the statutory period

(2) Whether the present suit has become barred by time for seeking partition under suit property against the appellant/defendant No.1 "

The trial Court after recording additional evidence of the witnesses, vide judgment dated 25.08.2011 decided both the issues against the appellants.

12. Having heard the learned counsel for the parties and on perusal of the record, I am of the view that this appeal deserves to be dismissed.

13. The counsel for the defendants/appellants has restricted his arguments on two issues :-

"(i) Whether reopening of partition is permissible in law once partition is affected through Ex. D-39.

(ii) Whether the defendant No.1/appellant has prescribed title by adverse possession through ouster of other co-owner."

14. A perusal of Ex. D-39 dated 06.07.1986 (partition deed) shows that the movable like machines, pipes, electric starter, thresher, wire liner, agricultural implements, grains and Mangalwala agricultural field and house at Bharra was partitioned amongst Chhotibai, plaintiff and defendants. This partition deed does not mention anything about the suit property, i.e., the house and other gold, silver articles.

15. Admittedly, vide family arrangement (Ex.D-10), land at village Bilgawan, other movables and House No.183 at Sarafa Ward fall into the joint share of party No.1 i.e., Sunderlal, Chhotibai, plaintiff and defendants, hence they possessed the same as joint owners. It is also not disputed that the land at Bilgawan was partitioned by Sunderlal himself during his life time between him and his children and they were in possession of their respective shares. However, the house No.183 and other articles were not partitioned. Chhotibai received 27 acres of land as her share, out of which she give 19 acres to defendant No. 3 Anil. It is also not in dispute that after the death of Sunderlal, Chhotibai and Vimalchand, who was working at GCF at Jabalur alongwith his family members, Anil and Deenbandu continued to live in the suit house. Thus their possession in the house was that of co-owner.

16. Exhibit D-10 clearly established that the house No.183 was ancestral and jointly owned by all the members of party No.1. There is no partition deed or relinquishment deed which may show that the plaintiff had relinquished his share in the suit house.

17. It is an admitted fact that appellants were living in the suit house alongwith Sunderlal, Chhotibai and other defendants and the plaintiffs since the beginning. Plaintiff and other defendants moved away from that place due to marriage, jobs or their work. Only defendant No.1/appellant and his family continued to live in the suit house alongwith mother Chhotibai. Leaving the house for the reason of jobs/work or marriage can never be construed that plaintiff or other dependents at any point of time did not remain co-owner of the property or surrendered his/their interest in the property.

18. As far as the pleading of adverse possession is concerned, the appellant has to show as to when his possession became adverse to the interest of the plaintiff. The appellants have based their claim of adverse possession on the ground of continuous possession and the fact that appellant No.1’s name was mutated in the records alongwith Chhotibai and he paid the taxes regarding the suit property/house.

19. As far as payment of municipal taxes by defendant No.1/appellant or non-payment or non-sharing of the same by other co-owners is concerned, it is well settled that mere nonparticipation in payment of taxes/rent and profit of the land of a co-sharer does not amount to an ouster so as to be given title by adverse possession.

20. In P. Lakshmi Reddy Vs. L. Lakshmi Reddy AIR 1957 SC 314 , the Apex Court has clearly enunciated the principle of law as :

“4…..it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the nonpossessing co-heir by the co-heir in possession, who claims his possession to be. adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy(3)). It is a settled rule of law that as between coheirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster…..”

21. In Nagabhushanammal (dead) by legal representatives Vs. C. Chandikeswaralingam 2016 (4) SCC 434, the Apex court has referred to the case of Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496, wherein it is held :-

“28. ‘Ouster’ does not mean actual driving out of the cosharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

22. As between co-owners/heirs there must be evidence of ouster, assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as enjoyment by one of them to the knowledge of the other so as to constitute ouster.

23. In the instant case, D.W.-1 Anand Golchha (Defendant No.6) in his deposition has admitted that the suit house in ancestral and he and his brother Rahul received one share each in the suit house on the basis of partition deed (Ex.D-1) dated 23.01.1996 executed by Chhotibai and their father Vimal Chand (defendant No.1). He has further admitted that earlier plaintiff and other defendants were also living in the same house. However, he has no knowledge if Chhotibai has ousted the plaintiff and other defendants from the house. Similar statement has been made by D.W.-2 Rahul, D.W.-3 Sarla and D.W.-4 Vimal Chand in para 7, 8 and 9 of their depositions. D.W.-4 Vimal Chand has also admitted that at the time of his father’s death, suit house has not partitioned between the brothers. According to him, he got his name mutated in the municipal records on 31.05.1996 alongwith Chhotibai and his sons Anand and Rahul and since then his possession became adverse.

24. Mere long possession or assertion of title by itself is not sufficient to make out a case of ouster unless the appellant prove his animus possidendi. In their entire evidence, the defendants No.1, 5 and 7/appellants have failed to establish ouster. A plea of adverse possession or a plea of ouster is governed by Article 64 and 65 of Limitation Act, 1963 and the onus to prove adverse possession is on the person who raises such a plea. It is settled position of law that the possession of co-owner is presumed to be possession of the other co-owners unless contrary is proved.

25. The appellant No.1 is in long and continuous possession on the suit house, however as per his own statement, his possession became hostile on 31.05.1996, when he got his name mutated in the municipal records. Mere mutation of name in the municipal records does not create any title since it is only for fiscal purposes. For adverse possession to ripen into ownership, the adverse possession should continuous for more than the statutory period of 12 years. However, the suit filed on 14.05.1998, was within time.

26. In view of the forgoing discussions, I am of the considered opinion that the reasoning and conclusions arrived at by the trial Court are just and proper, based on proper appreciation of the facts and evidence, hence does not call for any interference in the appellate jurisdiction of this Court.

27. Resultantly, the appeal fails and is hereby dismissed accordingly. The judgment and decree passed by the Trial Court is affirmed.