REKHA RAM Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE instant writ petition has been filed for setting aside the judgments and orders dated 24. 4. 85 passed by the trial Court and 19. 1. 2001 passed by the Board of Revenue and for up-holding and restoring the judgment and order of the Revenue Appellate Authority dated 27. 5. 93.

(2.) THE facts and circumstances giving rise to this case are that respondents No. 5, 5/1 and 16, who are the sons and widow of Deepa Ram, filed Suit No. 50/79 in the Court of the Assistant Collector under Section 53 and 88 of the Rajasthan Tenancy Act, 1955 (for short, "the Act, 1955") for partition. THE total land involved in the case was 81 Bighas and they claimed 1/3 share in the property and also restoration of possession on the said land. THE trial Court decreed the suit vide judgment and order dated 24. 4. 85 (Annx. 1 ). Being aggrieved and dissatisfied, the defendant-respondents approached the Appellate Authority, which allowed the appeal vide judgment and order dated 27. 5. 93 (Annx. 2), against which an appeal was preferred before the Board of Revenue by the plaintiff-respondents, which has been allowed vide judgment and order dated 19. 1. 2001 (Annx. 3 ). Hence this petition.

(3.) IN P. Lakshmi Reddy vs. L. Lakshmi Reddy (3), the Hon'ble Supreme Court considered the issue of adverse possession over the family's property and held that it has to be proved be cogent reasons that there has been hostile relations between the parties and the members, who are being denied their right, had insisted to have their share and it had been refused persistently by the members of the family claiming adverse possession. While deciding the said case, the Hon'ble Supreme Court placed reliance upon the judgment in Secretary of State for INdia vs. Debendra Lal Khan (4), wherein it had been observed that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. But it is well settled that in order to establish adverse possession of one coheir 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 non-possessing 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 Court further observed as under:- "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 his own part in derogation of the other co-heir's title. . . . . It is a settled rule of law that as between 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. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong, we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai vs. Jeevarathnammal, AIR 1919 PC 44. . . . quotes, apparently with approval, a passage from Culley vs. Deod Taylerson, (1840) 3 P & D 539: 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster `if other circumstances concur. ". . . . . It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession. "