KULDIP MAHATON AND ORS.versusBHULAN MAHTO (DEAD) BY L.RS. AND ORS.

A                        KULDIP MAHA TON AND ORS.
                                 v.
                 BHULAN MAHTO (DEAD) BY L.RS. AND ORS.

                              NOVEMBER 30, 1994

B              [K. RAMASWAMY AND N. VENKA TACBALA, JJ.]

        . Hindu Law-Inheritance

           Widow inheriting property as life estate prior to the Hindu·Womens'
      Right to Property Act-After her death Succession opened to reversioners-
c     Adopted son making claim-Appellate Court disbelieving his version but
      holdthat he acquired title to the property by prescription-Held; Co-owner
      cannot plead adverse possession against another co-owner in the absence
    . of express plea and proof of hostile title-Division of property and mesne
      profits-Directions issued

D         M inherited certain property from her husband B as limited owner
     to enjoy the property for life. She died before the Hindu Women's
     Right to Property Act, 1937 came into force. On her death, succession
     to the said property opened to the reversioners i.e. the first respondent
     and the appellants. They became co-owners of the property. The first
     respondent claimed that he was adopted by M when he was young and
E    he was entitle to the possession of the property in his own right as the
     adopted son of B, and that the appellants were not entitled to the
     possession. The Trial Court decreed the suit in favour !Jf the first
     respondent, but the appellate court disbelieved the version. However it
     also dismissed that suit on the finding that the first respondent had
F    acquired title to the property by prescription. The second appeal was
     dismissed by the High Court. Hence this appeal. ·

         Allowing the appeal, this Court

          HELD : 1. It is not the case of the first respondent as found by the
     appellate court, that after the succession to the reversioner was opened
G
     on the demise of M, he ousted the appellant from possession of the
     lands or he had set up his own hostile title to the knowledge ~f the
     reversioners, namely, the appellants and· they had acquiesced to that
     exercise of the right. In the absence of such a pleading and proof,
     necessary presumption is that all the co-owners continued to be owners
H    of the property .and the first respondent remained in possession of the

                                      220
                 KULDIP MAHATON v. BHULAN MAHTO                      221

suit property as co-owner. It is settled law that one co-owner cannot A
plead adverse possession against another co-owner unless there is an
express plea and proof of hostile title asserted to and remained in
possession in assertion of that right to the knowledge of the appellants.
In the absence of such a pleading and proof, the finding of the appellate
court that the first .respondent had acquired the tiOe to the property by
prescription is clearly illegal. [222 F to HJ                             B
     2. The appellants claimed possession as owners. They have title as
reversions of B for undivided half share in the plaint schedule
properties while the first respondent had half share in the property.
Therefore, the decree of the trial court, appellate court and the High
Court are set aside. The suit must be treated to be one for partition. C
There shall be a preliminary decree in this behalf with mesne profits
for three years prior to date of suit. The trial court is directed to draw
the final decree on an application to be made in this behalf by the
appellants and enquiry into mesne profits should be conducted.
                                                                 [223 A, BJ
                                                                           D
    3. Since the Legal Representatives of Respondents No~. 4 to 6 were
not brought on record, the appeal as against them stood dismissed.
Since they are purchasers from the first defendant, the property sold to
them stood now allotted to his share 11nd must be computed to the share
of the first defendant. Equally of the lands sold to other
defendants/respondents do not bind the appellants. The lands sold to E
them is in excess of the share of the first respondent. The Trial Court
should work.~out the rights of the purchasers equitably among
themselYes, determine their liabilities to the appellants. In drawing the
final decree and allotting the properties, the court should take into
consideration of quality and value of the property. A decree for
payment of compensation to the appellants be made. Enquiry into F
mesne profits be made and a final decree should be passed accordingly
within one year from the date of making the application. [223 C. DJ
    CIVIL APPELLATE. JURISDICTION : Civil Appeal No. 3246 of
1984.                                                •
    From the Judgment and Order dated 3.8.77 of the Patna High Court in G
S.A. No. 51of1975.
    S.K. Bagga, Mrs. S. Bagga and Seeraj Bagga for the Appellants.
    B.B. Singh and R.P. Singh for the Respondents.
    The following Order of the Court was deljvered:
    222                   SUPREME COURT REPORTS               [1994] SUPP. 6 S.C.R

A        One Upasi Mahto is the common ancestor. He had four sons, out of
    them Mohit Mahto and Chaturi are his first and third sons. Fargudi and
    Sukan pre-deceased him leaving no.heirs. Therefore, the question of their
    genealogy does not arise. Mohit Mahto had two sons, namely, Bigu and
    Bihari, Bigu died. Bigu's wife is Smt. Munnia. Chaturi had two sons, Deni
    Mahto and Raghubir. First defendant Bhutan is the son of Deni Mahto.
B   Raghubir's children are the plaintiffs/appellants before us. The appellants
    laid a suit against the Bhutan and his alienees claiming title to and
    possession of the suit property inherited by their father Raghubir Mahto or
    in the alternative to get the land of Munnia on her demise as reversioners. It
    is the case of Bhutan, the first defendant, that he was adopted by Munnia,
    widow ofBigu wheri he was young and he was entitled to the possession of
c   the property in his own right as an adopted son of Bigu. Therefore, the
    appellants are not entitled to the possession. Though the trial court decreed
    the suit, the appellate court while disbelieving the version of the Bhutan
    held that he was not the adopted son of Munnia and that the appellants
    would get the property as reversioners. But it had dismissed the suit on the
    finding that Bhutan had acquired title to the property by prescription.
D   Therefore, the appellants are not entitled to the possession. The second
    Appeal No. 51/75 was dismissed by the High Court of Patna in limine on
    August 3, 1977. Thus this appeal by special leave.

         The undisputed facts that emerge from the fmdings and the genealogy
    are that Munnia inherited the property ofBigu as limited owner to enjoy the
E   property for her life. Admittedly, she died in 1932 before the Hindu
    Women's Right to Property Act, 1937 had come into force. On her demise,
    succession to the property held by Bigu opened to the reversioners i.e. both
    the respondent/1st defendant and the appellants. Thereby, they become co-
    owners of the property left by Munriia. It is not the case ofBhulan, as found
    by the appellate court, that after the succession to the reversioner was
F   opened on the demise of Munnia, he ousted the appellant from possession
    of the lands or he had set up his own hostile title to the knowledge of the
    reversioners, namely, the appellants and they had acquiesced to that
    exercise of the right. In the absence of such a pleading and proof, necessary
    presumption is that all the co-owners continued to be owners of the
    property and Bhutan remained in possession of the suit property as co-
G   owner. It is settled law that one co-owner cannot plead adverse possession
    against another co-owner unless, as stated earlier, there is an express plea
    and proof of hostile title asserted to and remained in possession in .assertion
    of that right to the knowledge of the appellants. In the absence of such a
    pleading and proof, the fmding of the appellate court that Bhulan had
    acquired the title to the property by prescription is clearly illegal.
H
                  KULDIP MAHATON v. BHULAN MAHTO                        223

      Since the findings of adverse possession is not sustainable, what would A
be the relief that could be granted in the suit is the question. The appellants
claimed possession as owners. In view of the above finding, they have title
as reversioners of Bigu for undivided half share in the plaint schedule
properties while Bhulan had half share in the property. Therefore, the
decree of the trial court, appellate court and the High Court are set aside.
The suit must be treated to be one for partition. There shall be a preliminary B
decree in this ~ehalf with mesne profits for three years prior to date of suit.
The trial court is directed to draw the final decree on an application to be
made in this behalf by the appellants and enquiry L"lto mesne profits should
be conducted. During the pendency of this appeal, respondent Nos. 4 to 6
died. By an order of this Court dated February 11, 1991, since the Legal
Representatives of Respondent Nos. 4 to 6 were not brought on record, the C
appeal as against them stood dismissed. Since they are purchasers from the
first defendant, the property sold to them stood now allotted to his share
and must be computed to the share of the first defendant. Equally of the
lands sold to other defendants/respondents do not bind the appellants. The
lands sold to them is in excess of the share of Bhulan. The Trial Court
should work-out the rights of the purchasers equitably among themselves, D
determine their liabilities to the appellants. In drawing the final decree and
allotting the properties, the court should take into consideration of quality
and value of the property. A decree for payment of compensation to the
appellants be made. Enquiry into mesne profits be made and a final decree
should be passed accordingly within one year from the date of making the
application. The appeal is accordingly allowed. Parties are directed to bear E
their own respective costs through out.

G.N.                                                       Appeal allowed.