Janaki Pandyani Vs. Ganeshwar Panda (dead) by LRs. & Anr.
EmailAppeal: Civil Appeal No. 4523 of 1990
Petitioner: Janaki Pandyani
Respondent: Ganeshwar Panda (dead) by LRs. & Anr.
Apeal: Civil Appeal No. 4523 of 1990
Judges: V.N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Mar 08, 2000
Head Note:
PARTITION
Suit by one co-sharer for partition of joint family property – Suit resisted by other co-sharers on grounds of relinquishment deed – Same not signed by plaintiff – In alternative, adverse possession claimed – Thatched house converted into tiled house – High Court, though holding the relinquishment being not proved, holding the adverse title. Held that High Court erred in holding so. It was joint family property and no partition took place. Till then, no co-sharer can claim adverse possession. Appeal allowed.
(Para 2)
JUDGEMENT:
ORDER
1. Madhusudan Panda, the husband of the appellant, Dhaneshwar Panda and Trinadha Panda are the real brothers and sons of Sivar-ama Panda. All three brothers are members of Hindu joint family. The husband of the appellant filed a suit for partition and possession of one-third share in the joint family property. A written statement was filed by the defendants-respondents wherein it was alleged that Madhusudan Panda, by virtue of Ex.B/1, had relinquished his share in the property and, therefore, he is not entitled to any share in the property. Alternatively, it was also pleaded that the defendants have acquired title by adverse pos-session. The trial court found Ex. B/1 as not proved and further the defendants and plaintiffs being co-owners of the property, the question of adverse possession does not arise. Consequently, the suit was decreed. First appeal was preferred against the said judgment and was dismissed. However, second appeal was allowed by the High Court and the suit was decreed. The High Court held that Ex.B/1 was not proved. Even after holding so, the High Court held that since the defendants acted upon Ex B.1, therefore, they acquired title by adverse possession over the joint family property. It is against the said judgment, the plaintiff is in appeal before this Court.
2. After we heard learned Counsel for the appellant and perused the record, we are of the view that the judgment of the High Court is not sustainable in law. The High Court found that Ex. B/1 was not signed by Madhusudan Panda and was not proved. There-fore, the High Court cannot make Ex. B/1 as basis for acquisition of title by adverse possession. This approach of High Court in holding that defendants have acquired title to property by ad-verse possession was erroneous. Further, merely because defend-ants had converted the thatched house into a tiled house and also dug a well, it does not mean it was an ouster of the plaintiff. Admittedly, the property in dispute is joint family property and the plaintiff and the defendants are the co-sharers of the prop-erty. In fact, there is no partition of the property and so long as property is not partitioned, it continues to be a joint Hindu family property. Under such circumstances, one co-sharer cannot claim adverse possession against the other co-sharer. In view of the said legal position, the High Court fell in error in holding that the defendants had acquired title in the property by adverse possession.
3. For the aforesaid reasons, we find that the appeal deserves to be allowed. Consequently, the judgment of the High Court is set aside and the appeal is allowed. There shall be no order as to costs.
1. Madhusudan Panda, the husband of the appellant, Dhaneshwar Panda and Trinadha Panda are the real brothers and sons of Sivar-ama Panda. All three brothers are members of Hindu joint family. The husband of the appellant filed a suit for partition and possession of one-third share in the joint family property. A written statement was filed by the defendants-respondents wherein it was alleged that Madhusudan Panda, by virtue of Ex.B/1, had relinquished his share in the property and, therefore, he is not entitled to any share in the property. Alternatively, it was also pleaded that the defendants have acquired title by adverse pos-session. The trial court found Ex. B/1 as not proved and further the defendants and plaintiffs being co-owners of the property, the question of adverse possession does not arise. Consequently, the suit was decreed. First appeal was preferred against the said judgment and was dismissed. However, second appeal was allowed by the High Court and the suit was decreed. The High Court held that Ex.B/1 was not proved. Even after holding so, the High Court held that since the defendants acted upon Ex B.1, therefore, they acquired title by adverse possession over the joint family property. It is against the said judgment, the plaintiff is in appeal before this Court.
2. After we heard learned Counsel for the appellant and perused the record, we are of the view that the judgment of the High Court is not sustainable in law. The High Court found that Ex. B/1 was not signed by Madhusudan Panda and was not proved. There-fore, the High Court cannot make Ex. B/1 as basis for acquisition of title by adverse possession. This approach of High Court in holding that defendants have acquired title to property by ad-verse possession was erroneous. Further, merely because defend-ants had converted the thatched house into a tiled house and also dug a well, it does not mean it was an ouster of the plaintiff. Admittedly, the property in dispute is joint family property and the plaintiff and the defendants are the co-sharers of the prop-erty. In fact, there is no partition of the property and so long as property is not partitioned, it continues to be a joint Hindu family property. Under such circumstances, one co-sharer cannot claim adverse possession against the other co-sharer. In view of the said legal position, the High Court fell in error in holding that the defendants had acquired title in the property by adverse possession.
3. For the aforesaid reasons, we find that the appeal deserves to be allowed. Consequently, the judgment of the High Court is set aside and the appeal is allowed. There shall be no order as to costs.
