MD. MOHAMMAD ALI (DEAD) BY LRS. versus SRI JAGADISH KALITA AND ORS.

Citation: [2003] SUPP. 4 S.C.R. 325 · Decided: 07-10-2003 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

MD. MOHAMMAD ALI (DEAD) BY LRS. 
A 
v. 
SRI JAGADISH KAUT A AND ORS. 
OCTOBER 7, 2003 
[ASHOK BHAN AND S.B. SINHA, JJ.] 
B 
Adverse possession-Ouster by co-sharer-Plea of -Held, long and 
continuous possession by itself would not constitute adverse possession-
Possession of a property belonging to several ~a-sharers by one co-sharer, 
shall be deemed that he possesses the property on behalf of other co- C 
sharers, unless there has been a clear ouster by denying the title of other 
co-sharers-A co-sharer becomes a constructive trustee of other co-
sharers. 
Code of Civil Procedure, 1908-Section JOO-Substantial questions D 
of law-Non formulation of-Certain aspects requiring closer examination 
by High Court-Matter remitted back for fresh consideration. 
The original owner transferred the premises in question to two 
brothers who, thus, owned and possessed the same. By a registered deed 
of partition, the structures standing on the premises being holding Nos. E 
522 and 523 were divided into two equal halves. Sons ofone of the brothers 
allegedly amalgamated both the said holdings and got them registered in 
his name as holding No. 121 in the records of Municipality. Slibsequ~ntly, 
he sold holding No. 522 and leased out portion of holding no. 523 in favour 
of respondent No. 3. Upon the death of the original owner, his sons got F 
the lands mutated in their favour. 
The legal heirs and representatives of the other brother transferred 
their possessory rights in holding No. 523 including the house to 
appellant for valuable consideration. At a later stage, the legal 
representatives of the original owner transferred their right, title and G 
interest in old holding No. 523 to the appellant for a: consideration. 
Thus, upon purchase of the premises in question, the appellant called 
upon respondent No. 3 to pay rent to him. As respondent No. 3 did not 
pay rent to the appellant, he filed a money suit for recovery of arrears 
of rent, which was dismissed. An appeal preferred thereagainst by the H 
325 
326 
SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R. 
A· appellant was also dismissed. Later on, the appellant filed a suit, inter 
alia, praying for a decree for declaration of his right, title and interest 
over the premises in question and for ejectment of respondent No. 3. 
The Trial Court decreed the said suit against which first appeal was 
preferred in the Court of District Judge by some of the respondents. 
B The first Appellate Court invoked the principle of 'caveat emptor' and 
allowed the appeal by respondents holding that the appellant had no 
right, title and interest over the land in question. Second appeal filed 
by appellant before High Court was dismissed. Hence the present 
appeal. 
C 
On behalf of the appellants, it was contended that first appellate 
D 
court as also the High Court have committed a manifest error in 
dismissing the suit hodling that the respondents perfected their title by 
adverse possession, although the contesting respondents did not raise 
any plea nor proved ouster of other co-sharers. 
On behalf of the respondents, it was contended that appellant 
having lost the money suit filed by him, the question of title could 
not have been permitted to be reagitated and was barred under 
the principles of res judicata; that respondent No. 1 alone having 
all along been possessing the premises by payment of rent to the 
E municipal authorities, must be held to have acquired title by adverse 
possession. 
F 
Allowing the appeal and remitting the matter back to High Court, 
the Court 
HELD : 1.1. The proposition of law relating to ouster of a co-
sharer vis-a-vis adverse possession had been overlooked by the High 
Court. Therefore, the matter should be considered afresh by the High 
Court. [336-H, 338-B) 
G 
1.2. 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 
H declaration that the title of the other co-sharers was denied and disputed. 
MD. MOHAMMAD ALI v. JAG DISH KALIT A 
327 
For the purpose of proving adverse possession/ouster the defendant must A 
also prove animus possidendi. Long and continuous possession by itself 
would not constitute adverse possession. Even non-participation in the 

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