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TMI Blog1971 (12) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... ao (dead) Kamlabai (Deft. 8) ChandrasenRao VijaysinghRao Suresh VasantRao Narsinghrao (Deft. 1) MansinghRa (Deft. 2) Ku. Alka . (Deft. 3) Ku. Kalpna (Deft. 4) Ranjit (Deft. 5) Dhodiba had five sons, Baba Saheb, Amritrao, Yeshwantrao, Bala Saheb and Baburao, the original Plaintiff in this case. All of them are now dead. Baba Saheb was the eldest son. Respondents No. 1 to 6 are the legal representatives of the deceased Baburao. The case of Baburao, the original plaintiff, as laid in the plaint, was that the parties were members of a joint Hindu family. The house in suit, bearing municipal No. 5/12, was the property of the joint family having been acquired by Dhodiba. The house has been in occupation of defendants No. 1 lo 8, who a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Yeshwantrao since deceased, claiming 2/3 share in the property, vide certified copy of the plaint dated 27-8-1945 (Ex. D-1). It is also not disputed that that suit ultimately abated. The question, therefore, is whether, in these circumstances, the present suit is barred. The trial Court held that the suit was not barred and it appears that this finding was not challenged in the first appeal because there is no reference to it in the judgment of the first appellate Court. However, since it is a question of law, I propose to consider it. In T. C. Mukerji v. Afzal Beg A I R 1916 All. 1, it was held that a fresh suit for partition is not barred even where an earlier suit was dismissed as compromised because the right to bring a suit for par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the evidence on record that the house was joint family property and this was admitted by the defendants in their written statement in the earlier suit, vide Ex P-1. This was an Unqualified admission and has not been, in any way, rebutted. The learned additional District Judge was, therefore, perfectly right in basing his finding on this point on the admission of the defendants, coupled with the other circumstances on record. Shri Gupta further urged that the finding of the first appellate Court that the possession of the appellants over the house in suit was not adverse to the plaintiff and that the suit was not barred by time was erroneous and liable to be set aside. The question of adverse possession is a mixed question of law and fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the house in question is not yielding any income and, therefore, there can be no question of the plaintiff claiming any share in the income. Shri Gupta also relied on a decision of the Nagpur High Court in Krishnabai v. Parwatibai A I R 1986 Nag. 282, but I fail to see how it is helpful to him. From the observations made therein at page 283, it is clear that the argument that in the case of a co-owner there must be an express ouster and that mere non-participation in the profits and non-enjoyment of the property is not enough to destroy title, was accepted. It was held in that case that although the aforesaid facts do not necessarily indicate ouster, they may do so coupled with other circumstances, such as, dealing with the property as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved in the same paragraph as under: The character of possession that would bar a co-owner must be such that one can infer from it an intention by the co-owner in occupation to keep out the other co-owners in assertion of exclusive and hostile title in himself to the property. A similar view was expressed by this Court in Vidya Bai v. Narayandas 1971 M P L J 925 : 1971 J L J 749. The following observations in paragraph 15 are pertinent: A co-owner's possession of the common properey is not prima facie adverse against another co-owner, because such possession is considered as one on behalf of all the co-owners, except when there is clear proof of ouster or assertion of a hostile title. Their Lordships of the Supreme Court, in Uday ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me (vide paragraphs 3 and 5 of the written statement). Shri Gupta urged that this admission was qualified inasmuch as it was the case of the appellants that there was another house belonging to the joint family, which was in possession of the plaintiff and that if at all a partition was to take place, both the houses should be partitioned. That would, however, not make any difference so far as the plaintiff's right to claim half share in the suit house is concerned, particularly because in this suit it was not expressly pleaded that the other house should also be brought into the hotchpotch for purposes of partition. The appellants having failed to raise that plea cannot now raise it in second appeal. Learned counsel fog the plaintiff- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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