Holding

The High Court erred in setting aside the lower courts' findings; the plaintiff remained a co‑owner and the defendant had no title, so the appeal is allowed.

Summary

Sukhram and his brother Jagannath inherited agricultural land and a house as co-owners. Sukhram left the village, entrusting Jagannath to look after his share and to account for the usufruct income. Upon return, Sukhram demanded possession and profits, but Jagannath refused, leading Sukhram to sue for possession and mesne profits. The trial court and the first appellate court upheld Sukhram's claim, finding no evidence of adverse possession or ouster. The High Court reversed those findings, holding that Sukhram had abandoned his share and that the suit was barred by limitation. The Supreme Court held that the High Court erred, emphasizing that Sukhram never relinquished his co‑ownership, that Jagannath’s defenses were dishonest, and that the lower courts' factual findings should stand. Consequently, the appeal was allowed and costs awarded to the appellant.

Issues considered

Whether the plaintiff retained co‑ownership of the property despite leaving it in the brother's care.
Whether the defendant acquired title by adverse possession and ouster of the plaintiff.
Whether the High Court was correct in setting aside the findings of fact of the trial and appellate courts.
Whether the suit is barred by limitation.
Whether the defendant's defenses constitute dishonest conduct that must be discarded.

Subjects

possessionmesne profitsco‑ownershipadverse possessionjoint familyusufructhonest conductlimitationcivil suitappeal

Judgment

[2009] 9 S.C.R. 410

A BONDER &,ANR.
v.
HEM SINGH (DEAD) BY LRS. & OR-8.
(Civil Appeal No. 829 of 2002)
'..-MAY 15, 2009
B
[DALVE~RBHANDARI AND OR. MUKUNDAKAM
SHARMA, JJ.]

Suit:
c
Suit for possession and mesne profits .... One brother
entrusting his share of properly In land and house to another
brother of looking after the property and also to give him the
usufructslincome therefrom - On demand, the other brother
0 refusing to give possession and mesne profits - Trial Court
decreeing the suit for possession and mesne profits - Upheld
by Appellate Court - High Court setting aside the concurrent
findings· of facts - On appeal, Held: The High Court has not
examined the pleadings of the. parties and evidence on record
E in proper perspective - The defendant is guilty of taking
entirely dishonest defences before the· trial Court - Court
should always effectively discard such a dishonest conduct
- The defendant did not have any case either in law or equity
- lmpugnedjudgment of High Court cannot be sustained -
Hence set aside.
F
'S' and 'J' are two brothers who had inherited some
agricultural land and an ancestral house from their father.
They were jointly cultivating the lanci and occupied the
ancestral house jointly. 'S' went to his maternal uncle's
· G house to look after his property, and requested his
brother 'J' to look after his share of the property and to
give him to usufruct or income from his share of the
property.

H 410
•
I

(

BONDER & ANR. v. HEM SINGH (DEAD) BY LRS. & 411
ORS.
'S' returned back from his uncle's house and A
demanded. the possession of his share in the property
and the income derived therefrom, but 'J' did not pay any
attention to his request. 'S' gave a notice to 'J' and since
there was no response, he filed a civil suit claiming
possession and mesne profits. The Civil Judge decreed B
the suit. The First Appellate Court upheld the judgment
of the trial court and observed that the trial court was
right in holding it was not proved that the defendants's
title over the suit land has been perfected by adverse
possession and ouster of the plaintiff to his knowledge c
for more than 12 years.

On second appeal, High Court set aside the
concurrent findings of facts of the courts below. Hence
the appeal.
D
Allowing the appeal, the Court

HELD: 1.1. The High Court erroneously set aside the
concurrent findings of facts of the two well reasoned
judgments of the courts below. [Para 15] [417-C]
E
1.2. The High Court has not examined the pleadings
of the' parties and evidence on record in proper
perspective. The High Court ought to have appreciated
that the plaintiff while leaving the village asked his brother
(defendant) that he should look after the land which was F
in the share of the plaintiff also and keep the account of
usufruct or income from the property of the plaintiff. The
plaintiff had always remained a co-owner of the property
in question. While leaving the village he asked his brother
to look after the property in his absence. Fro~ that it can G
never be construed that the plaintiff at any point of time
did not remain co-owner of the property or surrendered
his interest in the property. The defendant is guilty of
taking entirely dishonest defences before the trial court.
The court should always effectively discard such a H
~-

412 SUPREME COURT REPORTS . [2009] 9 S.C.R.
! .

A dishonest conduct. [Para 14] [416-G-H; 417-A-B]

1.3. The impugned judgment of the High Court is
wholly unsustainable, illegal, perverse and against the
\
norms of any civilized society. The judgment of the High ?

Court has demolished the entire fiber of joint family '
B
system of our country and has put premium on the
}"
dishonesty of, the defendant and the same deserves to
be set aside. It is unfortunate if one brother cannot trust
;
his own brother even to this extent then how can peace
and tranquility ·prevail in the society. The saddest part is ·
c that the High Court ~hile s~.~ting aside the concurrent
findings of the two courts has"'put judicial seal of approval
on such a dishonest conduct of the defendant. The
impugned judgment of the High Court cannot be
sustained and is accordingly set aside. The defendant did ...
D . not have any case either in law or equity. [Para 16] [417-
0-F]

P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1'957 SC
314 and Corea v. Appuhamy 1912 AC 230 (C), referred to.
E Case Law Reference:
AIR 1957 SC 314 referred to Para 7 -I

1912 AC 230 (C) referred to Para 7
F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 829
of 2002.

From the Judgment & Order dated 24.08.2000 of the High
Court of Madhya Pradesh, Indore Bench in Civil Second Appeal
No. 103 of 1982.
G
K.K Rai and Amboj Kumar (for Krishnanand Pandeya) for
the Appellants.

S.S. Banthia and Vikas Upadhyay for the Respondents.

H The Judgment of the Court was delivered by
BONDER & ANR. v. HEM SINGH (DEAD) BY LRS. & 413
ORS.

DALVEER BHANDARI, J. 1. This appeal is directed A
against the judgment and decree passed by the High Court of
Madhya Pradesh, Indore Bench at Indore in Civil Second
Appeal No. 103 of 1982 dated 24.8.2000.

2. In order to appreciate the controversy involved in the B
case, it is necessary to recapitulate the basic facts of the case.

3. The'appellants' father Sukhram (since deceased) filed
a suit bearing Civil Original Suit No. 230A of 1972 before the
learned Fifth Civil Judge, Indore, Madhya Pradesh against
Jagannath (since deceased). It was pleaded, inter alia, that c
Sukhram (plaintiff) and Jagannath (defendant) were brothers
and sons of Narsingh, who died leaving behind 22.39 acres of
agricultural land and an ancestral house in village Kadwali
Khurd. The said land was jointly cultivated and the house was
~'
jointly occupied by both the brothers. Sukhram went to his D
maternal uncle's house to look after his property. Sukhram
before leaving the village went to his brother Jagannath and
requested him that he would be looking after his maternal
uncle's property and till he returned to his village, the property
may be looked after by him (Jagannath) and he be given the E
usufruct or income from his share of the property.
~
4. On return, Sukhram demanded the possession of the
property of his share and also demanded the income derived
from the said property from Jagannath, but he did not pay any
F
attention to his request. Ultimately, Sukhram had to issue a
notice on 13.6.1971 to Jagannath. The said notice was served
upon Jagannath on 19.6.1971 but even then he did not give
possession of the land and the income from it to Sukhram
during the period when he was away. Ultimately, Sukhram fiied ·
a civil suit and claimed possession and future mesne profits G
at the rate of Rs.1,000/- per year and Rs.8,000/~ for the past
mesne profits. ·

5. In his written statement, defendant Jagannath
surprisingly taken following pleas that:- H
./
414 SUPREME COURT REPORTS [2009] 9 S.C.R.

A (a) the parties were not brothers, but step brothers;

(b) the house in dispute was in a dilapidated condition at
the time of death of his father;

(c) the property was not partible and the plaintiff Sukhram
B . was not entitled to any share in it. It was also incorporated
in the written statement that father of the parties had taken
loan from different persons and had created a, charge of
Rs.5,000/- over the land and the house and that it was not
possible to discharge the debt from the income of the said
c property and, therefore, immediately after the death of their
father, the plaintiff Sukhram went to his in-law's house and
started living there. It was further stated by defendant
Jagannath that he discharged the loan from the earnings
of the property, income from the service and business of
D cattle and while doing so rebuilt the house and developed
the property. He further stated that he also sunk a well
spending a sum of Rs.4,000/-. Sukhram came back to his
village and demanded his· share, but Jagannath did not
accede to his request and turned him out. Defendant
E Jagannath pleaded absolute ouster of Sukhram and
claimed that he had perfected· h·is title by adverse •I

possession. In the alternative, it was also submitted that
as he had spent money for construction of the house,
development of the land and sinking of the well, in case a
F decree is to be granted fo favour of the· plaintiff, half of the
expenses be given to him. He, however, prayed for
dismissal of the suit.

6. The learned Civil Judge decreed the suit in favour of
plaintiff Sukhram. The plaintiffs case is· crystal clear that he had
G entrusted his share of immovable properties to his brother
Jagannath to look after it and return the same to him on his
return along with the usufruct or income derived from his share
of the immovable properties. The evidence does not reveal that
the plaintiff left the suit property with a view to permanently
H abandoning it.
-!

BONDER & ANR. v. HEM SINGH (DEAD) BY LRS. & 415
--f '
' ORS. [DALVEER BHANDARI, J.]
7. The first Appellate Court relied upon the decision in P. A
Lakshmi Reddy v. L Lakshmi Reddy AIR 1957 SC 314 at para
4, wherein this Court referred to the decision in Corea v.
Appuhamy 1912 AC 230 (C). In the said case the principle of
law has been clearly enunciated. The relevant portion of the
said judgment reads as under: B

..i.. "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 of them is in sole possession or
enjoyment of the profits of the properties. Ouster of the
non-possessing co-heir by the co-heir in possession who
c
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. The co-heir in possession
cannot render his possession adverse to the other co-heir
" not in .possession merely by any secret hostile animus on D
his own part in derogation of the other co-heirs title. It is a
well settled rule of law that as iJetween co-heirs 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." E

8. This principle has been consistently applied by the
t Indian courts.
'?).
9. The first Appellate Court also held that even in the
F
revenue records the name of plaintiff Sukhram continues to
show that the defendant Jagannath never considered the plaintiff
Sukhram as ousted and not continuing as a co-heir.

10. The first Appellate Court upheld the judgment of the
trial court and observed that the trial court was right in holding G
.... that it is not proved that the defendant's title over the suit land
has been perfected by adverse possession and ouster of the
plaintiff to his knowledge for more than 12 years. The first
Appellate Court dismissed th_e appeal with costs and the
preliminary decree passed by the trial court was confirmed. H
"
416 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 11. The plaintiff respondent, aggrieved by the judgment of
the first Appellate Court (Eighth Addi. District Judge, Indore)
preferred second appeal before the High Court. The High Court ./¥'

by the impugned order set aside the concurrent findings of facts
of the courts below and allowed the appeal. The High Court,
B while setting aside the concurrent findings of facts of courts
below, gave very unusual, strange and totally unsustainable
reasonings. The High Court observed that the plaintiff, i'
according to his own pleadings, left the village somewhere
between 193540 and received his share in the property up to
c the year 1950 and thereafter all his rights were denied and
defendant Jagannath asserted his absolute right in the property.
According to the impugned judgment of the High Court, the two
courts had not taken into consideration the pleadings of the
parties and the admissions made by the plaintiff which have
important bearing on the facts of the case and the appreciation
D
of the evidence.

12. The High Court held •hat the findings recorded by the
two courts are not only wrong and illegal but also perverse. The
High Court in the impugned judgment also observed that the
E plaintiff, though, has proved that he was the joint owner of the
property, but has failed to prove that he continued to be the joint
owner of the property and had no knowledge about the hostility ..
asserted by defendant Jagannath, and his exclusion. It was
further held that the defendant was successful in proving the ./ff'

F exdusion of the plaintiff and the said exclusion was to the
knowledge of the plaintiff. According to the High Court, the suit
of the plaintiff was patently barred by limitation.

13. The plaintiff Sukhram, aggrieved by the said judgment
of the High Court, has preferred this appeal under Article 136
G
of the Constitution.
.....
14. The ·High Court has not examined the pleadings of the
parties and evidence on record in proper perspective. The High
Court ought to have appreciated that the plaintiff while leaving
H the village asked his brother (defendant) that he should look
'µ. BONDER & ANR. v. HEM SINGH (DEAD) BY LRS. & 417
ORS. [DALVEER BHANDARI, J.]
after the land which was in the share of the plaintiff also and A
keep the account of usufruct or income from the property of the
plaintiff. The plaintiff had always remained a co-owner of the
property in question. While leaving the village he asked his
brother to look after the property in his absence. From that it
can never be construed that the plaintiff at any point of time did B
not remain co-owner of the property or surrendered his interest
in the property. The defendant is guilty of taking entirely
dishonest defences before the trial court. The court should
always effectively discard such a dishonest conduct.

15. In our considered opinion, the High Court erroneously
c
set aside the concurrent findings of facts of the two well
- reasoned judgments of the courts below.

16. The impugned judgment of the High Court is wholly
. unsustainable, illegal, perverse and against the norms of any D
civilized society. The judgment of the High Court has
demoltshed the entire fiber of joint family system of our country
and has put premium on the dishonesty of the defendant and
the same deserves to be set aside. It is unfortunate if one
brother cannot trust his own brother even to this extent then how E
can peace and tranquility prevail in the society? The saddest
t part is that the High Court while setting aside the concurrent
findings of the two courts has put judicial seal of approval on
~
such a dishonest conduct of the defendant (Jagannath). The
impugned judgment of the High Court cannot be sustained and F
is accordingly set aside. The defendant did not have any case
either in law or equity.

17. This appeal is allowed.with costs which is quantified
at Rs.50,000/- to be paid by the respondent to the appellant
herein v1ithin two months . G
...
G;N, Appeal allowed.