2025:JHHC:10149 IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 99 of 2022 Tapan Kumar Bhattacharjee aged about 74 years son of Late Shital Chandra Bhattacharjee, resident of Matri Ashish Tagore Road, Bijulia, P.O. Ramgarh Cantt, P.S. and District Ramgarh … … Defendant/Appellant/Appellant Versus 1. Somen Kumar Bhattacharjee son of Shital Chandra Bhattacharjee resident of Matri Ashish Tagore Road, Bijulia, P.O. Ramgarh Cantt, P.S. and District Ramgarh 2. Tundra Mukherjee wife of Sabya Sachi Mukherjee, daughter of Late Shital Chandra Bhattacharjee resident of Vidya Sagar Road, P.O. Nabapally, P.S. Barasat, District North 24 Pargana (West Bengal) … … Plaintiffs/Respondents/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Sandeep Verma, Advocate For the Respondents : --- 10/19.02.2025 Heard the learned counsel appearing on behalf of the appellant. 2. This second appeal has been filed against the judgment and decree dated 15.06.2022 (decree signed on 28.06.2022) passed by learned Principal District Judge, Ramgarh whereby the learned Court has dismissed the Civil Appeal No. 3 of 2020 and confirmed the judgment and decree dated 20.03.2020 (decree signed on 25.03.2020) passed by learned Civil Judge I, Ramgarh in Partition Suit No. 36 of 2015. 3. Learned counsel for the appellant has submitted that there were altogether four parties in the partition suit; all from the same family and they were brothers and one sister. The suit property was purchased in the name of mother of the parties by the father and mother and father both expired. Consequently, a suit for partition was filed by 3 plaintiffs and Tapan Kumar Bhattacharjee was the sole defendant. The suit was decreed by allocating 1/4th share to each one of them. At the appellate stage, one of the plaintiffs namely Swapan Kumar Bhattacharjee expired and he died issueless. Consequently, the properties were redistributed amongst the remaining 2 plaintiffs and 2025:JHHC:10149 2 the sole defendant to the extent of 1/3rd of the share to each one of them. 4. Learned counsel for the appellant submits that the grievance of the appellant representing the sole defendant is that the learned 1st appellate Court has not properly decided the case, inasmuch as, the house was constructed and renovated by the sole defendant and accordingly, the sole defendant had incurred more expenses in the suit property and that the plea of ouster and adverse possession has not been properly considered by the learned courts. 5. After hearing the learned counsel for the appellant, this Court finds that the genealogy is not in dispute. The 3 plaintiffs and the sole defendant were siblings; plaintiff nos. 1, 2 and sole defendant were brothers and the plaintiff no. 3 was the sister. Their father died on 11.11.1998 and mother died on 26.08.2008. The suit was instituted in the year 2015 seeking 3/4th share. The following issues were framed by the learned trial Court: “(i) Whether the suit maintainable in its present form? (ii) Whether the plaintiffs have valid cause of action for the suit? (iii) Whether the suit is barred by principle of waiver, acquiescence ad estoppal? (iv) Whether the suit is barred by law of limitation, adverse possession and ouster and has the defendant ousted the plaintiff from the suit property? (v) Whether there is unity of title and unity of possession between the parties of the suit with respect to suit land? (vi) Whether the plaintiffs are entitled 3/4th share with respect to the suit land? (vii) Whether the plaintiffs are entitled for reliefs as claimed or any other relief?” 6. Both the parties led documentary and oral evidences. The admitted facts have been recorded in paragraph 7 of the trial Court’s judgment which are as under: “7. Before entering into the discussions on the issues, I would like to mention the admitted facts in this case. From the parties pleadings, it appears that it is admitted fact that-- 1. Both parties to the suit are Hindus and governed by the Dayabhag School of Hindu Law in the matter of inheritance, succession and partition 2025:JHHC:10149 3 2. The suit land and building is under R.S. Khata No. 314 being plot No. 3339, area 10 decimal of Ramgarh. 3. Initially the above land belong to Sheo Shankar Singh who had transferred to the same in favour of Arun Kumar Basu by virtue of registered deed of sale dt. 08.10.1958. Arun Kumar Basu in order to meet urgent necessary had sold and transferred the said property in favour of Smt. Anima Bhattacharjee (mother of the parties) W/o Sital Chandra Bhattacharjee by virtue of registered deed of sale dt. 29.07.1983. 4. That the father of the parties namely Sital Chandra Bhattacharjee died in the year 1988 whereas mother of the parties namely Anima Bhattacharjee died on 26.08.2008. 5. The geneological table given in the plaint is also correct and admitted by both the parties.” 7. The main argument of the defendant was the plea of ouster, adverse possession and that he had spent money and contributed in the property. It was the case of the defendant that for proving the plea of ouster, open assertion of hostile title, exclusive possession and enjoyment of property within the knowledge of the other party was required to be proved and as per him, said facts were duly proved by the defendant in their written statement and also by the plaintiff witnesses. However, all the issues were decided in favour of the plaintiffs and ultimately, 3/4th share was allocated to the plaintiffs. 8. The case of the plaintiffs was for equal partition among all the legal heirs/successors of Anima Bhattacharjee- the mother. On the other hand, the case of defendant was based on principle of adverse possession and ouster. According to the case of defendant, at the time of purchase of suit property the house standing over the land was in very bad condition and it was renovated and extension was made by him. It was his further case that the plaintiffs were not residing over the suit property and therefore, they were ousted from the property and they lost their legal right, title and interest and for that matter share in the suit property. 9. As mentioned above, the learned trial court framed as many as seven issues and Issue No. IV was on the point of limitation, adverse possession and ouster. The learned trial court after considering the 2025:JHHC:10149 4 evidence on record came to the conclusion that there was no ouster and adverse possession in favour of defendant. While deciding issue no. IV, the learned trial Court rightly recorded that there are three elements that are required for establishing the plea of ouster in the case of co-owner- a. Declaration of hostile animus, b. Long and uninterrupted possession of the person pleading ouster and c. Exercise of right of exclusive ownership openly and to the knowledge of other co-owner. 10. The learned trial court also recorded that in the present case, it is admitted position that out of three plaintiffs one Tundra Mukherjee got married and was living in West Bengal whereas plaintiff No. 1 was a differently abled person and was living with plaintiff No. 2 at Chhattisgarh where they were doing jobs. The learned trial court held that because the plaintiffs were in service in another place it does not ipso-facto mean that the plaintiffs shall be deprived from the right, title and interest of the property registered in their mother's name. The learned Court further observed that on scrutiny of the documentary evidence filed by the defendant it also got reflected that the rent receipts (Exhibits-A to A/5), the house tax receipts (B2 to B/5), the water tax receipts (Exhibits-H to H/5), electricity bills etc., all the receipts and payments were being made in the name of Anima Bhattacharjee the mother of the parties till before institution of the suits which indicated that the suit property was still existing in the name of the mother of the parties and after her death in natural consequence all the parties to the suit who are brothers and sister shall inherit the same in equal proportion. The learned trial Court held that the defendant who had taken the defence of adverse possession by ouster remain failed to prove his "hostile animus" over the suit land property. The learned trial Court was of the considered view that the suit was not barred by law of limitation, adverse possession and ouster and the defendant did not oust the plaintiffs from the suit land. 2025:JHHC:10149 5 11. The learned 1st appellate court observed that there is no presumption under the law for ouster and adverse possession and the party which claim it has to prove the same. The learned 1st appellate Court also considered the materials on record and recorded concurrent findings and also took into consideration that the mother of the parties expired in the year 2008 and the suit was filed in the year 2015 and held that there was no ouster of plaintiffs from the suit property and defendant has not perfected his right, title and interest on the basis of adverse possession. The plea of the defendant that he had contributed in purchase of the property was also considered by the learned 1st appellate court and it was recorded that the defendant failed to prove such a plea in the light of his available source of income and the evidence of the sole defendant who was examined as D.W-5 on this point has also been fully discussed in paragraph 13 of the judgement. 12. The findings recorded by the learned 1st appellate Court are as under: “13. There is no presumption under the law for ouster and adverse possession and the party which claim it has to prove the same. Let us examine as to whether the defendant has been able to prove ouster and adverse possession against the plaintiffs. From the oral evidence of the defendant Tapan Kumar Bhattacharjee himself who has been examined in the suit as DW 5, it appears that plaintiffs have settled in Madhya Pradesh in connection with their work and livelihood. Therefore, they never lived over the suit property and defendant used to pay holding tax, water tax, electricity bills and also maintain the property after the death of father. He has denied that the property is joint property and according to this witness, the plaintiffs were ousted from the property. But in the cross examination he himself admitted vide para -20 that in the year 1982 his salary was about Rs. 400/- to Rs. 500/- per month and this was spent on domestic requirements and nothing was possible to save from that salary. The witness/defendant himself has admitted that his father had served in CCL as senior over-man and retired from there. Upon retirement Rs. 1,25,000/- was received as gratuity. The defendant himself has further admitted vide para- 23 of his cross-examination that from the said fund, which was received by his father, the suit property was purchased. Vide para -25 it has been admitted by defendant 2025:JHHC:10149 6 in his evidence that property was purchased for Rs. 60,000/- . In the further evidence the defendant could state satisfactorily as to how he managed Rs. 25,000/- as part of consideration amount paid by him. He could not produce any paper showing that he himself borrowed money from Bank or from any other source. The document which have been produced on behalf of defendant shows that the taxes are paid in the name of Anima Bhattacharjee, the mother of both the parties. It is settled legal position that in an intestate succession the property will devolve upon all the legal heirs and successors of the deceased. In the present case the property was purchased in the name of Anima Bhattacharjee and she died intestate and therefore, after her death the property will devolve upon all his legal heirs and successors, who are plaintiffs and defendant in the present case. So far as application of ouster and principle of adverse possession is concerned, that is not applicable in present case where the property is joint property after death of Anima Bhattacharjee. All the co-owner of the joint property are treated having right, title, interest and possession over the joint property and only because some of the co-owner residing at different place their right, title, interest would not extinct over the suit property. For claim of ouster and adverse possession a party is required to prove the fact of hostile possession and ouster against the person whose claim to property is denied. This fact of ouster is not proved in the present case. Even in the own evidence of defendant Tapan Kr. Bhattacharjee vide para -18 he has stated that he retired from service in the year 2010 and in para -19 of his cross-examination he has stated that after taking retirement he handed over his CCL quarter to management of CCL. This shows that during the service Tapan Kr. Bhattacharjee himself was residing in the CCL quarter and he had moved over the suit property only after his retirement. The mother of parties died in the year 2008. Till the death of mother Anima Bhattacharjee there was no question of adverse possession and even it is presumed that after death of mother, defendant exclusively came over the possession of the suit property, the claim of adverse possession can't be said to be perfected as the twelve years did not elapse from the death of Amina Bhattacharjee and the suit has been filed in year 2015 itself. For an adverse possession over the property the possession must be hostile and open against the co-owners. Normally in a joint property, adverse possession can't be applicable unless the credible evidence is there to show that other co-owner have 2025:JHHC:10149 7 been ousted and the possession over the suit property has been hostile to the other co-owner that has perfected after lapse of 12 years statutory period. In the present case the suit has been filed in the year 2015 and the property owner Anima Bhattacharjee died in the year 2008 and therefore, there is no question of adverse possession which matured in favour of defendant. 14. Remarkably, the DW 1 Shashank Kr. Bhattacharjee, the witness, who has been examined on behalf of defendant has admitted that marriage of Somen Bhattacharjee was performed from Ramgarh, which goes to show that plaintiffs also used to visit Ramgarh. In catena of decisions of Hon'ble High Court and Hon'ble Supreme court, it has been held that mere possession and enjoyment over the property by one of the co-sharer is not enough to establish adverse possession. In a reported decision (2009) 16 SCC 517 Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & others, the Hon'ble Supreme court has held that law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. In a reported decision (2002)2 SCC 62 (Darshan Singh & others Vs. Gujjar Singh, the Hon'ble Supreme court had held that possession of co-sharer becomes adverse to other co-sharer only if there is clear ouster and denial of their title. In normal course possession by one co-sharer of property belonging to several co-sharer will be deemed in possession on behalf of all co-sharer. In another reported decision (2007) 9 SCC 641 Desh Raj and Others versus Bhagat Ram it has been held by the Hon'ble Supreme Court that onus to prove the adverse possession is on the party who raises the plea. It has been further reiterated in this reported decision that possession of one co- sharer is deemed to be possession of other co-sharer. In the present case the defence of Tapan Bhattacharjee that he possesses property by ousting other co-sharer, who are plaintiffs is not proved by cogent evidence and also the statutory period of twelve years has not elapsed from the date of adverse possession and the owner of the property- Anima Bhattacharjee who was mother of both the parties at litigation, died only in year 2008 therefore, it is held that there was no ouster of plaintiffs from the suit property and defendant has not perfected his right, title and interest on the basis of adverse possession. Therefore, Point No. I & II are decided against the appellant.” 2025:JHHC:10149 8 13. This Court finds that the learned 1st appellate Court has also considered every aspect of the matter and took note of the fact that the plaintiff no. 1 died issueless and the property devolved in his remaining siblings. Ultimately, reallocation of shares took place equally amongst the remaining three parties. 14. This Court find that both the learned Courts have considered the materials on record and have passed the impugned judgments rejecting the plea of adverse possession and plea of ouster as raised by the sole defendant. The plea of the defendant regarding ouster, adverse possession etc. has been rightly considered and rejected by both the learned Courts in the light of the facts proved and recorded. The plea of the defendant that he had contributed in purchase of the property was also considered by the learned 1st appellate court and the defendant failed to prove such a plea in the light of his available source of income. No perversity as such has been pointed out by the learned counsel for the appellant in the matter of appreciating the materials on record to arrive at the findings. 15. This Court finds that no substantial question of law is involved in the present case, hence this second appeal is dismissed. 16. Pending interlocutory application, if any, is closed. (Anubha Rawat Choudhary, J.) Pankaj