DES RAJ AND ORS. versus BHAGAT RAM (DEAD) BY LRS. AND ORS .

Citation: [2007] 2 S.C.R. 892 · Decided: 20-02-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
DES RAJ AND ORS. 
v. 
BHAGAT RAM (DEAD) BY LRS. AND ORS . 
• FEBRUARY 20, 2007 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Limitation Act, 1963-Artic/es 64 and 65-Adverse possession-
Determination-Parties being co-sharers-Long and continuous possession 
C of plaintiff-Plea of adverse possession-Sustainability of-Held: Plaintiff is 
to prove acquisition of title by adverse possession-Mere assertion of title 
by itself not sufficient unless plaintiff proves animus possidendi-Plaintiff 
established that he acquired title by ousting defendants by declaring hostile 
title in himself which was to the knowledge of his co-sharers from 1968 
onwards-Thus, plaintiff perfected his title by adverse possession and ouster 
D and is not vitiated in law. 
Parties were co-owners. Respondents were in possession of the property 
in village S a.nd the appellants in village P. In 1953 revenue settlement record 
of rights were prepared and joint ownership of land in village S was recorded. 
Appellants filed suit for partition and possession of land situated in village S 
E in 1968 and another suit in 1978. Both the suits were dismissed. Respondent 
continued to possess the properties situated at village S and in 1986 filed 
suit for declaration of his title raising plea of adverse possession. Trial Court 
decreed the suit holding that the respondents were in exclusive continuous 
peaceful possession of the suit land to the exclusion of other co-owners, prior 
F to settlement in 1953 and the appellants had actual knowledge thereof. 
Appellant filed an appeal. First appellate Court dismissed the same holding 
that the co-sharers did not arrive at any arrangement and the repudiation of 
title of the appellant by the respondent was open and hostile. Appellants then 
filed second appeal which was dismissed. Hence the present appeal. 
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Appellants contended that the parties being co-sharers, it was obligatory 
H 
on the part of the respondent to plead and prove ouster; and that the Trial 
Judge as also the Appellate Courts erred in holding that the respondent 
perfected his title by adverse possession. 
892 
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DES RAJ v. BHAGAT RAM (DEAD) BY LRS. 
893 
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Dismissing the appeal, the Court 
A 
HELD: I. In the instant case, a finding of fact has been arrived at by all 
the three courts. They have analysed the evidences on record. They have taken 
into consideration the correct legal position operating in the field as also 
conduct of the parties. They applied the correct principles of law as regards 
B 
'burden ofproor. Having regard to the peculiar fact in the case, the respondent 
had established that he acquired title by ousting the appellants by declaring 
hostile title in himself which was to the knowledge of his co-sharers. 
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[Paras 32 and 33] [901-G-H; 902-A-B] 
2.1. The plaintiff-respondent had remained in possession for a long time c 
i.e. since 1953. The respondent did not specifically plead ouster in the plaint 
but muffosil pleadings, as is well known, must be construed liberally. 
Pleadings must be construed as a whole. Only because the parties did not use 
the terminology which they should have, ipso facto, would not mean that the 
ingredients for satisfying the requirements of statute are absent. [Paras 18, 
19 and 21] (899-A-B-D} 
D 
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2.2. A plea of adverse possession or a plea of ouster would be governed 
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by Articles 64 and 65 of the Limitation Act. The onus to prove adverse 
possession would be on the person who raises such a plea. Furthermore, the 
possession of a co-sharer is presumed to be possession of the other co-sharers E 
unless contrary is proved. (Paras 21 and 221 [899-E-Fl 
2.3. Mere assertion of title by itself may not be sufficient unless the 
plaintiff proves animus possidendi. But the intention on the part of the plaintiff 
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to possess the properties in suit exclusively and not for and on behalf of other 
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co-owners also is evident from the fact that the appellants themselves had F 
earlier filed two suits. Such suits were filed for partition. Jn those suits the 
appellants claimed themselves to be co-owners of the plaintiff. A bare perusal 
of the judgments of the courts below clearly demonstrates that the plaintiff 
had even therein asserted hostile title claiming ownership in himself. 
Therefore, the claim of hostile title by the plaintiff over the suit land, was, G 
thus, known to the appellants. They allowed the first suit to be dismisse

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