P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314. “It is well settled that in order to establish adverse possession of one co-heir as against the other, it is not enough to show that one out of them is in sole possession and enjoyment of the profits. 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 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-heirs’ title. It is settled rule of law that as being 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. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”
Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the 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-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.
Vidya Devi v. Prem Prakash, (1995) 4 SCC 496.27. From the underlined portion extracted above, it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case5 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 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.
Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271. 31. In Vidya Devi v. Prem Prakash3 this Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28) “27. … It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case4 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 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.”
Govindammal v. R. Perumal Chettiar, (2006) 11 SCC 600. 10. In Mohaideen Abdul Kadir v. Mohd. Mahaideen Umma their Lordships held that no hard-and-fast rule can be laid down. But the following relevant factors may be taken into consideration: (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard-and-fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession, denial and repudiation of the rights of other co-owners and this denial or repudiation must be brought home to the co-owners. Simply because a co-sharer gave notice claiming partition of the suit properties and possession and did not pursue the matter further, that will not be sufficient to show that the co-sharer has lost his/her right.
Tanusree Basu v. Ishani Prasad Basu, (2008) 4 SCC 791. 17. Strong reliance has been placed by Mr Banerjee on a judgment of the Bombay High Court in Bhaguji Bayaji Pokale v. Kantilal Baban Gunjawate4 wherein it was held: (AIR p. 117, para 8) “8[7]. With regard to second substantial question of law i.e. the co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned counsel for the appellants has relied upon the Apex Court’s judgment in Mohd. Baqar v. Naim-un-Nisa Bibi5. The Apex Court has very categorically held in para 7 as under: (AIR p. 550) ‘7. … The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.’ ” It was observed: (AIR p. 117, para 10) “10. … Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well-settled law.”
S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 KAR 4129 : (2012) 4 AIR Kant R 424 81. In the light of the aforesaid undisputed facts and the judgments of the Apex Court, it is clear that unless the person asserting title by adverse possession admits title of the plaintiff and denies his title openly, the basic requirement of adverse possession is not established. Similarly, if “the case of the defendant is that he was lawfully put in possession and he has become the absolute owner and he asserts title to the property by such valid transfer of title, the plea of adverse possession is not available to him. Similarly, if the purchaser from one of the members of the joint family or a co-owner, asserts adverse possession, then the law governing adverse possession between co-owners and members of a joint family is attracted. Unless there is a plea of ouster and unless the said plea is established by acceptable evidence, they cannot succeed on the plea of adverse possession. Therefore, as rightly held by the Trial Judge in this case, the defendants have failed to establish the plea of adverse possession which they have set-up. Therefore, we do not see any infirmity in the said finding recorded by the Trial Court.
Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434. 24. This Court in Vidya Devi v. Prem Prakash (1995) 4 SCC 496 held that: (SCC p. 505, para 28) “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.”
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 