What is ouster of co-sharer? which law is related to it?

A three judge bench of this Court in P. Lakshmi Reddy v. R. Lakshmi Reddy AIR 1957 SC 1789, while examining the necessary conditions for applicability of doctrine of ouster to the shares of co-owners, held as follows: {Para 22}

4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [MANU/PR/0072/1933 : (1933) LR 61 IA 78, 82]). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna [(1900) LR 27 IA 136, 140]). But 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 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 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. (See Cores v. Appuhamy [(1912) AC 230)]. 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.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1858-1859 of 2016 

Decided On: 26.02.2016

 Nagabhushanammal  Vs. C. Chandikeswaralingam

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Author: Kurian Joseph, J.

Citation: MANU/SC/0231/2016.

Read full judgment here: Click here

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What is basic concept of ouster of a co-owner?

 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law. {Para 28}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1858-1859 of 2016 

Decided On: 26.02.2016

 Nagabhushanammal  Vs. C. Chandikeswaralingam

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Author: Kurian Joseph, J.

Citation: MANU/SC/0231/2016.

Read full Judgment here: Click here

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Whether second partition suit will be barred by res judicata if first partition suit was dismissed for default?

The suit filed by the Plaintiff in 1962, based on the settlement deed executed by her husband in her favour and the sufferance of the dismissal of the suit, will not, in any way, be a bar for making a claim for her share, if any, of the family property, if otherwise permissible under law. As succinctly addressed by the first appellate court, the 1962 suit for the entire property was based on a settlement deed and it was a suit for possession. Whereas, the 1988 suit for partition was for Plaintiff's one-half share in the property based on her birth right. Cause of action is entirely different. {Para 18}

19. Thus, the High Court in our opinion is not right on the point of res judicata.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1858-1859 of 2016 

Decided On: 26.02.2016

 Nagabhushanammal  Vs. C. Chandikeswaralingam

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Author: Kurian Joseph, J.

Citation: MANU/SC/0231/2016

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Whether one co-owner will become exclusive owner of property by adverse possession if his name is mutated in revenue record?

 Similarly, in the matter of Jatina Khatoon and others v. S.K. Najeeb (Dead) through Legal Representatives and others MANU/SC/1076/2017 : (2018) 11 SCC 717, it has been held by the Supreme Court that mere non-participation in rent and profit of land of a co-sharer does not amount to ouster so as to be given title by adverse possession, relying upon its earlier decision in the matter of Karbalai Begum v. Mohd. Sayeed MANU/SC/0363/1980 : (1980) 4 SCC 396 : (AIR 1981 SC 77).

29. Similarly, in the matter of Darshan Singh and others v. Gujjar Singh (Dead) by L.Rs. and others MANU/SC/0007/2002 : (2002) 2 SCC 62 : (AIR 2002 SC 606), the Supreme Court has held that mere mutation in revenue records in favour of one co-sharer does not amount to ouster unless there is a clear declaration denying title of the other co-sharers and in the normal course possession by one co-sharer of property belonging to several co-sharers will be deemed to be possession on behalf of the others. It was further held in paragraph 9 of the report as under:--

"9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied."

30. Reverting to the facts of the present case in light of the principles of law laid down qua the plea of adverse possession by ouster in the abovestated judgments rendered by Their Lordships of the Supreme Court, it is quite vivid that in the instant case, the defendants have taken the plea of adverse possession half-heartedly by simply stating that the plaintiffs did not assert any title over the suit land right from the year 1954 till the date of institution of suit and neither claimed any title nor made any dispute with regard to the suit land and allowed the defendants to get their names mutated in the revenue records and further allowed division of holdings in the relevant revenue records as per convenience of the defendants and the defendants are in possession right from 1954 and therefore they have become title holders by remaining in possession for long time which has been accepted by the two Courts below. The defendants have taken the following plea of adverse possession and ouster of the plaintiff, in the written statement as under:--

{Vernacular omitted}

31. In the considered opinion of this Court, as held earlier, mere mutation in the revenue records and not asserting title over the suit land would not amount to ouster so as to give title by adverse possession to the defendants particularly when there is no pleading of ouster raised, except that the suit lands have been mutated in their names and there is division of holdings in the name of the defendants and they are in possession of the suit land for long time since 1954. It is already held that possession of joint property by one co-owner is in the eyes of law, possession of all even if one is actually out of possession and passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.

IN THE HIGH COURT OF CHHATTISGARH

Second Appeal No. 450 of 2003

Decided On: 24.01.2019

Lunja  Vs.  Bugad and Ors.

Hon'ble Judges/Coram:

Sanjay K. Agrawal, J.

Citation: AIR 2019 Chhat 83

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When injunction suit filed by one co-owner against other co-owner is tenable?

"On a consideration of the judicial pronouncements on the subject we are of the opinion that;

(i) A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of the co-owner out of possession.

ii) Mere making of construction or improvement of,in the common property does not amount to ouster;

iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction prevent the diminition of the value and utility of the property;

iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction prevent such act which is detrimental to his interest.

In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner."

8. A perusal of the above quoted principle extracted by the Division Bench makes it abundantly clear that co-owner who is not in possession of any part of the property cannot seek an injunction against another co-owner unless any act of the person in possession of the property causes prejudice or is adverse to the interest of the co-owner who is in possession. Even raising of construction or improvement on any property does not amount to prejudice to the interest. In any case, it has no where been pleaded that the j raising or construction or doing any act by the defendant-respondents would diminish | the utility of the joint property.

Punjab-Haryana High Court

Ashok Bansal And Ors. vs Gurdas And Anr. on 25 February, 2002

Bench: M Kumar

Citation:2002 (4) Civil LJ 891

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Whether exclusive possession of property by one co-owner amounts to adverse possession against other co-owner?

 It has been contended by the learned Counsel for the respondent that if the sale deed was a sham document, not intended to be acted upon. Marappa should have established his possession of the lands under the sale deed to the exclusion of Doraisamy. We may indicate here that there is no finding by the High Court as to the exclusive possession of either of the party. Even if it is accepted that Doraisamy had exercised possession over the land covered by the sale deed, such possession may be explained by indicating that Doraisamy obtained interest to the extent of half share by virtue of the will executed by Karuppanna. Hence, as a co-sharer, he was expected to possess the lands not partitioned between the parties. Exclusive possession of a co-sharer does not amount to adverse possession against other co-sharers unless such possession is exercised by ousting the other co-sharers. There is no such case of ouster of a co-sharer and thereafter exercise of exclusive possession openly and as of right by Doraisamy. That apart, the sale deed was executed by Marappa in September 1984 and the suit was instituted by Marappa for declaration of the sale deed as sham and invalid document in 1985. Hence, question of title by adverse possession did not arise.

Supreme Court of India

Sadasivam vs K. Doraisamy on 9 February, 1996

Equivalent citations: 1996 IIAD SC 355, AIR 1996 SC 1724, JT 1996 (2) SC 400, 1996 (2) SCALE 89, (1996) 8 SCC 624, 1996 2 SCR 336

Bench: G Ray, B Hansaria

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Whether suit for partition can be defeated by defence of ouster of co-owner?

Ouster is a weak defense in a suit for partition of familyproperty and it is strong if the defendant is able to establish
consistent and open assertion of denial of title, long and
uninterrupted possession and exercise of right of exclusiveownership openly and to the knowledge of the other co-owner.
 This court in Syed Shah Ghulam Ghouse Mohiuddin
and others v. Syed Shah Ahmed Mohiuddin Kamisul
Quadri and Ors (1971) 1 SCC 597
 held that possession of one co-owner is
presumed to be on behalf of all co-owners unless it is
established that the possession of the co-owner is in denial of
title of co-owners and the possession is in hostility to co-ownersby exclusion of them. It was further held that there has to be
open denial of title to the parties who are entitled to it by
excluding and ousting them.
22. A three judge bench of this court in P.Lakshmi Reddy v.
R.Lakshmi Reddy AIR 1957 SC 1789
, while examining the necessary conditions
for applicability of doctrine of ouster to the shares of coowners,
held as follows:
“4. Now, the ordinary classical requirement of
adverse possession is that it should be nec vi
nec clam nec precario. (See Secretary of State
for India v. Debendra Lal Khan [ (1933) LR 61 IA
78, 82] ). The possession required must be
adequate in continuity, in publicity and in extent
to show that it is possession adverse to the
competitor. (See Radhamoni Debi v. Collector of
Khulna [ (1900) LR 27 IA 136, 140] ). But 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 out of them is in
sole possession and enjoyment of the profits of
the properties. Ouster of the non-possessing coheir

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 co-heir in possession cannot
render his possession adverse to the other coheir
not in possession merely by any secret
hostile animus on his own part in derogation of
the other co-heir's title.
(See Cores v. Appuhamy [(1912) AC 230)]. 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.”
23. This Court in Vidya Devi v. Prem Prakash

(1995) 4 SCC 496 held that:

“28. ‘Ouster’ does not mean actual driving out of
the co-sharer from the property. It will, however,
not be complete unless it is coupled with all other
ingredients required to constitute adverse
possession. Broadly speaking, three elements are
necessary for establishing the plea of ouster in the
case of co-owner. They are (i) declaration of
hostile animus, (ii) long and uninterrupted
possession of the person pleading ouster, and (iii)
exercise of right of exclusive ownership openly
and to the knowledge of other co-owner. Thus, a
co-owner, can under law, claim title by adverse
possession against another co-owner who can, of
course, file appropriate suit including suit for joint
possession within time prescribed by law.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1858-1859 OF 2016
(Arising from S.L.P. (C) Nos. 10449-10450/2009)
NAGABHUSHANAMMAL 
V
C. CHANDIKESWARALINGAM 
Citation;(2016) 4 SCC434
Dated;February 26, 2016.

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Whether Absence of coparcener from village or non-enjoyment by him of joint family property would indicate his ouster from joint family ?

The Apex Court in "Annasaheb Bapusaheb Annasaheb Patil

(19)

and others v. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. & heirs etc." (AIR 1995 S.C. 895), 895)

held that absence of a coparcener from the village or non-enjoyment by him by itself would not indicate ouster. The fact that a coparcener temporarily resides separately from the family and did not ask to be maintained by it would not amount to an exclusion from the joint family property. Unless there is a voluntary abandonment or there is explicit exclusion, no inference can be made from mere absence of a member of the joint family that he has been excluded from the joint estate. The burden to prove ouster of deceased Vishwanath was surely on the defendants. Once it is found that the defence of his relinquishment is without substance, then it follows that the ouster of Vishwanath cannot be accepted. 

Bombay High Court

Govind Vishwanath Bansode vs Manika Gangaram Bansode on 24 July, 2008

Bench: Shri V.R. Kingaonkar

Citation; 2008 (6) MHLJ715

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Distinction between adverse possession and possession simpliciter

There is a distinction between adverse possession and possession simpliciter. An adverse possession cannot operate in the vaccum. Article 65 of the Limitation Act, 1963 applies not merely to the want of actual possession by the real owner, it comes into operative play only when an individual in occupation of the statutory period is such occupation in denial of the title of the real owner. There can be no adverse possession without animus to prescribe.

84.The question of adverse possession is a mixed question of law and fact. If persons claim title by adverse possession, it is their duty to make specific allegation in the Plaint and lead evidence on facts from which they can ask the Courts to drawn inference that the established facts amount to adverse possession in law.

85.In law, a possession which can be referred to a lawful title cannot be considered as adverse in law.

It is to be noted that where plaintiff makes a claim to the property that he is the owner of the same, he cannot plead adverse possession, in the considered opinion of this Court.

If there is no evidence to prove possession for well over two decades, then, ordinarily the claim of adverse possession/title is also not proved, as opined by this Court.

It is an axiomatic principle in law that the acts amounting to adverse possession must be scrutinised in the light of relationship that exists between the parties.

In the decision Bhageerathi Ammal V. Kuppalammal and others, 1990-Vol.1-MLJ-463 at page 464, it is held that 'the co-owners cannot claim adverse possession unless there is strong proof of ouster.'

To constitute adverse possession between near relatives the evidence of ouster must be very strong as per decision in Puttathayamma and another V. Rathnarajiah and another, AIR 1955 Mysore 33.

In Perumal V. Boyot Selvacarassou, Power Agent, Boyot, Virappin (2002) 2 MLJ 150, it is held that 'the rights of real owner cannot be defeated without clear details regarding adverse possession.'

In Munusamy Gounder and another V. Sadasivam, (2005) 1 MLJ 584, it is observed that 'the Plaintiff having denied the title of the Defendant has failed to prove adverse title and as such, the relief of declaration cannot be granted.'

Madras High Court

Chinnammal (Died) vs Kaliammal (Died) on 20 February, 2012

S.A. No. 488 of 1992

CORAM: MR.JUSTICE M.VENUGOPAL

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