TMI Blog1971 (3) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, the land on which the house in dispute stands. His son, Nankhu, the deceased father of the present appellant, was taken in adoption sometime prior to March 20, 1915 by Ramji Singh and his wife Patreja Kuer as they had no issue, whereupon Nankhu ceased to have any interest in the properties owned by Amar Singh and his branch. In 1933, Nankhu and the present appellant, then a minor, filed Suit No. 33 of 1933 against Sonadhari Tarkeshwar, Baijnath and Reshmi Kuer (the widow of Amar Singh, wrongly described by the High Court as the wife of Rajkumar in the genealogy set out in its judgment) in respect of certain properties which had nothing to do with the house in dispute. The written statement filed in that suit was that Nankhu had been paid the price of his share in the house in dispute and that the entire house, consequently, belonged to and was since then in the exclusive possession of the defendants. That suit went upto the High Court when in 1941 a compromise application was filed by the parties settling that suit. But, as the suit had nothing, as aforesaid, to do with the house in dispute, nothing was said about the allegation that Nankhu had been paid off in respect of his in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Amar Singh out of his own funds, it was purchased in the furzi name of Lalji, but there was no evidence that Lalji ever admitted to be the furzidar of Amar Singh. Consequently, though Nankhu, by his adoption, lost all interest in the properties of Amar Singh, yet the fact that in Ex. 1 Amar Singh acknowledged Nankhu having a half share in the house indicated that there was some apprehension in the mind of Amar Singh of a future dispute and that it was such an apprehended dispute which Ex. 1, while dealing with the house settled. The learned Single Judge added that even assuming that there was no existing or apprehended dispute and the settlement was made out of consideration for the peace of the family or preservation of its properties, the settlement would have to be regarded as a family arrangement. Regarding the plea of adverse possession, he upheld the finding of the Trial Court that Nankhu and the appellant had established their acts of possession during the statutory period, and that consequently, the continuity and exclusiveness of the respondents' adverse possession had been disrupted. On these findings, he dismissed the appeals and confirmed the decree passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperties. In fact Nankhu had no such anterior title, nor could be in law have any such title in the house in dispute in view of his having got out of Amar Singh's branch as a result of his adoption by Ramji; (4) that there was no subsisting or apprehended dispute between Amar Singh and his family, on the one hand, and Nankhu on the other, the latter not having made any claim for a share in the house in dispute, and that therefore, there was no question of preservation of peace or family property, there being nothing on record to show that Nankhu had held out any threat to the family peace or property, therefore, there was a total want of mutuality as in consideration of Nankhu getting a half share. Amar Singh got nothing in return and cases of the type of Williams v. Williams [1867] 2 Ch. A. 294 had no application; (5) that the recitals in Ex. 1 showed that the only dispute which prevailed at the time was branchwise and in that dispute Nankhu did not set up any contest against Amar Singh and his branch and indeed, both of them acted in concert, both claiming that the members of Rajkumar's family were separate and the properties standing in the names of Reshmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his son filed the present suit in 1949. The Division Bench came to the conclusion that there was not only an assertion of a hostile claim by Baijnath but that that assertion was accompanied by an ouster which remained open and continuous throughout the statutory period. As regards the evidence that Nanhku and sometimes his wife came and stayed in the house, the Division Bench took the view that these were casual visits in the nature of visits of guests of the defendants , and therefore, did not have the effect of interrupting the continuity and the exclusiveness of possession by the respondents. The Bench even observed that the respondents had completed their title by adverse possession long before Baijnath claimed exclusive possession in his said written statement in 1933. In this view, the Division Bench held that Nanhku's title in the house was extinguished by adverse possession. The Division Bench accordingly allowed the respondents' appeal with costs all throughout. Both the conclusions of the Division Bench have been challenged before us as incorrect. 8. On the question as to the nature of Ex. 1 a large number of decisions were cited at the bar to show when a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise, as Williams' case [1867] 2 Ch. A. 294 shows, when other considerations, such as existing or an apprehended dispute or the question of preservation of property or honour of the family, are absent, so that it is not necessary for a valid family arrangement that there must exist actual competitive claims or disputes or that the arrangements must be backed by proper consideration. Even disputes likely to arise in future or preservation of family property and honour would be sufficient to uphold an arrangement bona fide made between the members of a family. 9. What actually happens when such a family arrangement is made is explained by Bose, J., in Sahu Madho Das v. Mukund Ram [1955] 2 S.C.R. 22 in the following words: It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than they had previously asserted, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions we must now examine Ex. 1 to see if the contention of the appellant that it was a family arrangement is correct or not. 12. The document Ex. 1, after reciting the death of the common ancestor, Rajkumar, his leaving him surviving four sons and the deaths of certain other family members thereafter, reads as follows: Signs of ill feeling developed among us, the executants Nos. 1 to 8, and at the time of survey and settlement operations, dispute in connection with the properties arose. On account of dispute, wrong statements and claim were made. On account of which the names of some of us, the executants were recorded in a wrong manner in the record of rights and in the office of the land Registration Department, in respect of some of the properties having regard to the real state of affairs and title. At the time of the survey and settlement operations etc. the claims and allegations of us, the executants Nos. 1 to 3, were that we, the executants, are all members of the joint family and the properties standing in the names of a certain member of the family as well as those in the name of certain female member of the family, belong to the joint family. Contrary to this, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ramji and Patreja Kuer, that certain properties set out therein were exclusively acquired by Patreja Kuer and that Nanhku, as the adopted son of Ramji and Patreja Kuer, was exclusively entitled to them on the death of Patreja, and that we, the executants Nos. 1 to 5, 6 and 7, and the heirs of executant No. 6 neither have nor shall have any claim, title or possession and connection in respect thereof in any manner and on any allegation . Following up the arrangement made in Paras 1 to 4, four schedules giving particulars of properties which were acknowledged to be belonging to the four sets of executants were appended to Ex. 1. As regards two houses, one at Rajipur and the other in dispute, Schedules 3 and 4 both set out a half share in them as belonging to executants 6 and 7 and the other half as belonging to executant 8, i.e. Nanhku, in each of them. 13. As already stated, the fundamental premise on which the Division Bench proceeded to consider Ex. 1 was that there were three sets of executants, namely, those belonging to Lalji's branch, i.e., executants 1 to 3, those belonging to Raghunandan's branch, i.e., executants 4 and 5, and the third set consisting of Amar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers of Lalji's branch were claiming that the family was still joint and undivided, and therefore, they had interest in all the properties irrespective of their standing in the names of particular individuals, Raghunandan and his son claimed that the members of the family were not joint and yet claimed share in all the properties including those standing in the names of Reshmi Kuer and Patreja Kuer. Thus the claims by executants 1 to 5 were definitely hostile to the interests of Amar Singh to the extent of the properties standing in the name of Reshmi Kuer and of Nanhku to the extent of the properties standing in the name of Patreja Kuer. The claims made by the branches of Lalji and Raghunandan sought to bring all the properties into hotch potch including those held by Reshmi Kuer and Patreja Kuer, thus, affecting the rights of Amar Singh and Nanhku in the different properties and not the same properties. Their interests, therefore, were not identical and there was thus no reason for them to act jointly. Indeed, there was no evidence whatsoever and nothing in Ex. 1 itself to show that they were acting in concert as assumed by the Division Bench. 16. It is true that the recit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute under Ex. 1. 17. On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessor. Accordingly, if a holder of title proves that be too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession the title which he holds, (see Kuthali Moothavar v. Paringati Kunharankutty [1921] 48 I.A. 395. As between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers. therefore, to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. As between them, therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not lake any steps to vindicate his title until he and his son filed the present suit in 1949 by which time the statutory period for adverse possession had already been completed. 20. There was, however, evidence of Nanhku and his wife having stayed on different occasions in the house. But the Division Bench was of the view that such acts of possession were only casual and did not have the effect of interrupting the adverse possession of the respondents. 21. It needs to mention in this connection that Nanhku was all along residing in a village and not in Patna. therefore, his acts of possession could only be when he came down from his village for some work to Patna. In 1915-1916, when Sonadhari got his name and that of Baijnath entered in the Demand Register (Ex. E) it might be that Nanhku did not know that they had omitted his name. His half share in the house had been acknowledged in Ex. 1 only recently by Amar Singh and Sonadhari as well. Relations between the parties had not yet become unfriendly so as to make Nanhku suspect that his name would be deliberately omitted in the municipal records or that possession by Sonadhari and later on by Baijnath would be treated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. Respondent herself admitted that on suit No. 33 of 1933 being settled, relations between Nanhku and Baijnath became friendly. If that be so, it was natural that Nankhu would stay in the house whenever he visited Patna in 1941 and thereafter. 24. The Municipal Survey Khasra (Ex. 2), dated December 19, 1933 mentions Nanhku along with Sonadhari and Baijnath as owners of the house. Since this entry was made after Baijnath had made a hostile claim to the entire house in the written statement filed in suit No. 33 of 1933 on September 16, 1933, the entry must presumably have been made at the instance of Nanhku. Such an act on his part would be a clear assertion of his title in the house. Under the Bihar and Orissa Municipal Survey Act, 1 of 1920, before such khasra was finalised it had to be published and objections to it, if any, had to be invited and disposed of. No objection was ever raised by Baijnath to the said khasra. It is surprising that Baijnath did not resist the entry in the khasra although he had made a claim to the whole of the property only three months before the date of the khasra. That indicates that his claim was merely a counterblast against Nanhku's suit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutants. This description shows that between the disputed house and the land sold under Ex. C there was to the north of it some waste land. The land sold under Ex. C being different land, the High Court was not right in relying on that sale deed to prove adverse possession on the ground that Nanhku never took objection to the said sale. He could not, as this land had nothing to do with the house in dispute. Besides the evidence discussed above, there was other evidence. But the incidents therein described were irrelevant on the question of adverse possession as they took place in 1948 and thereafter, that is to say, a long time after title by adverse possession would have been completed if such adverse possession were to be accepted as established. In view of the evidence discussed above the Division Bench was not justified in interfering with the rending of fact concurrently given by the Trial Court and the learned Single Judge that the adverse possession by Baijnath which commenced from 1933 was sufficiently interrupted by acts of possession by Nanhku, and therefore, his title was not extinguished by adverse possession. 27. In the view we take on both the questions, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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