SITALPRASAD TAPIPRASAD Vs. RAMPRASAD GANGAPRASAD

JUDGEMENT

(1.) THIS is plaintiff's appeal from the varying judgment of the District Judge, Nimar, in civil Appeal No. 3-A of 1940, decided on 21st April 1941. The only point, which arises in this appeal, is whether the title of the respondents was extinguished by adverse possession on the part of the appellants. The dispute relates to malik-makbuja field No. 66 situate in mouza Khandwa Malipura. All that is known about the origin of title of the parties is that it was recorded before 1909 or 1910 solely in the name of Annaji, the grandfather of the parties. Annaji had 3 sons, Gangaprasad, Shivial and Tapiprasad. Gangaprasad predeceased Annaji and Shivlal died after him (Annaji) without leaving behind any issue. Tapiprasad died some time about the year 1929. The appellants, Sitalprasad -and Narayanprasad, are the sons of Tapiprasad and the respondents, Ramprasad and Vishnuprasad, are the sons of Gangaprasad. The plaintiffs' case was that in 1909 or 1910 Annaji had given the field in dispute to Shivlal and Tapiprasad by getting it recorded in the name of his sons Shivlal and Tapiprasad to the exclusion of the father of the respondents who had separated some time before. Tapiprasad was solely in possession till the year 1928 when respondent 1, Ramprasad, wrongfully took possession of the field. Tapiprasad recovered possession of it in 1929 in execution of a decree which he obtained against respondent 1 in Civil Suit No. 77 of 1928 which was instituted in terms of Section 9, Specific Relief Act. The respondents, it was alleged, again took wrongful possession of the field in 1931 which furnished the cause of action, The appellants, in their pleadings on the whole, took up the attitude that Annaji was the sole owner of the field and that neither Gangaprasad nor his sons had any interest in it. But in oral pleading they suggested that if it were proved that the field belonged to the joint family of Annaji and his sons, Gangaprasad lost his interest in it as a result of partition whereby he separated from the family taking one-third share of the house in which he was living apart from others with his mistress. Lastly the plaintiffs pleaded that the title of Gangaprasad, if any, was extinguished by adverse possession of Tapiprasad for more than 12 years before 1928.

(2.) THE defence was that the field formed part of the joint family property, that although Tapiprasad filed the suit under Section 9, Specific Relief Act, the dispute between the parties had been compromised in execution proceedings and that in pursuance of that compromise they were actually in joint possession with the plaintiffs. The trial Court found that Annaji and his sons including Gangaprasad were joint in estate and that the mutation of the field in the name of Tapiprasad and Shivlal was not a sequel to the gift of the field to them, that there was a compromise as alleged by the defendants and that Tapiprasad agreed to take joint possession of the field. On these findings the plaintiffs' suit was dismissed. The lower appellate Court agreed with the trial Court on the finding that the field was the parties' joint family property and that the partition of the field in 1909 in favour of Tapiprasad and Shivlal did not involve any gift of the field to them. It negatived the plea as to partition affecting Gangaprasad and the plea regarding compromise of the dispute as to possession of the field alleged to have been made in the execution proceedings of the suit under Section 9, Specific Relief Act. In the result it reversed the trial Court's decree dismissing the suit, and, instead, ordered the defendants to put the plaintiffs in joint possession of the field.

(3.) TO found the plea of adverse possession it was imperative on the plaintiffs to plead and prove not only that Gangaprasad had been excluded from the property but also that the exclusion had been known to him as contemplated in Article 127, Limitation Act, 1908. Mulla at p. 264 of his Hindu Law, Edn. 9, points out that the mere fact that a coparcencer voluntarily resides separately from the family and does not ask to be maintained by the family, does not amount to an exclusion from the joint family property. In the case of persons who are in lawful possession on behalf of others such as licensees, co-owners or tenants, the law requires that the person pleading adverse possession must prove that his possession became adverse at a particular point of time to the knowledge of the person against whom prescriptive title is claimed: Ambu Nayar v. Secretary of State A.I.R. 1924 P.C. 150, In the absence of a specific plea and evidence in the present case of the denial of Gangaprasad's title to his knowledge or of ouster from the property it is not open to the plaintiffs to raise the contention that their possession was adverse for the simple reason that the field happened to be mutated in the name of their predecessor-in-title. Even on the supposition that the field was the self-acquired property of Annaji, it would, on his death, devolve on his two sons Shivlal and Tapiprasad, and Ramprasadand Yishnuprasad as representing Gangaprasad who bad predeceased Annaji: see Mulla's Hindu Law, Edn. 9, p. 83. The appeal is dismissed with costs.