DATED : 20.11.2009
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
A.S. No. 1086 of 1990
1. Navaneetham (deceased)
(Appellants 2 to 7 were brought on record as
Legal heirs of the deceased sole appellant
vide order dated 14.09.2009 made in
C.M.P.No.864 of 2009) .... Appellants
1. Shanmugavadivelu (died)
(RR3 to 9 brought on record as legal heirs
of the deceased first respondent vide order
in C.M.P.No.1606 and 1607 of 1996) .... Respondents
Appeal filed under Section 96 of Code of Civil Procedure against the Judgment and decree dated 30.11.1989 made in O.S.No.111 of 1988 on the file of the Subordinate Judge, Mayiladuthurai.
For Appellants : Mr.Srinath Sridevan
For Respondents : Mr.S.Sadashran for R2
Mr.S.Mahimairaj for RR3, 6 to 9
Mr.T.Ayyasamy for R4
Mr.Sadasivan for R5
The first defendant in the suit is the appellant. The suit was filed by the Plaintiff/first respondent herein claiming partition of 1/3rd share in the suit property. The suit was decreed holding that the plaintiff is entitled for 1/3rd share in the suit property. Aggrieved by the same, the present appeal has been filed.
2. For the sake of convenience, the parties shall be referred to as they were arrayed before the court below.
3. The facts as projected in the plaint is that the defendants and one Subramaniam, who is not a party to the suit, are sons of Meenakshiammal. The said Subramaniam, even during his early days, left the house and living as a nomad and subsequently he died. Since Meenakshiammal belonged to Hindu religion, as per Hindu Succession Act, after the demise of Meenakshiammal, the property would vest on the plaintiff and defendants equally and the plaintiff is entitled to 1/3rd share in the suit property. Further, Meenakshiammal has purchased the suit property by means of a registered sale deed dated 10.10.1932 and she has not executed any will. In other words, Meenakshiammal died intestate in the year 1960. After the death of Meenakshiammal, the suit property was enjoyed jointly by the plaintiff and defendants together. Subsequently, due to misunderstanding, the plaintiff has issued a legal notice seeking his share in the suit property. Even after receipt of the notice, the defendants have not chosen to divide the suit property, hence, the suit.
4. The second defendant remained exparte in the suit. The first defendant alone contested the suit by filling written statement. The first defendant admits that the suit property belonged to Meenakshi Ammal and it was purchased by her on 10.10.1932. It was contended that Meenakshiammal had four sons and they are the plaintiff, defendants and one Subramaniam. It was also admitted that there was no female issue. In or about 1945, the first son Subramaniam left the house and at that time, he was not married. The said Subramaniam was leading life of a mendicant. The first defendant married in the year 1940 and living with his mother Meenakshiammal in the suit property. The Plaintiff and the second defendant have been given in marriage in the same day in 1955 in the suit property. After the marriage, there was some misunderstanding due to which the plaintiff and the second defendant left the suit property and living separately. At the time of leaving the suit property, the plaintiff had even taken away and sold valuable jewels of Meenakshiammal. Thereafter, the plaintiff was residing at Thirumalam and the second defendant at New Street. The plaintiff used to spend huge amount of money even before his marriage and leading a wayward life. Therefore, according to the first defendant, from 1955 onwards, the first defendant and his family alone were residing with Meenakshiammal in the suit house and attending to all her needs. Further, Meenakshiammal died intestate on 20.09.1960 and as an eldest son, the first defendant alone performed the list rites as per the custom. Even before the death, Meenakshiammal had given the suit house to the first defendant to be enjoyed by him absolutely and ever since then, the first defendant has been enjoying the suit house. According to the first defendant, he and his family members are living in the suit property and they are in exclusive possession and enjoyment of the suit house from the date of death of Meenakshiammal in the year 1960 continuously for the past 28 years. It was further contended that the first defendant has been paying the taxes and charges relating to the suit property. Further, during the year 1971, Subramaniam, one of the sons of Meenakshiammal had made a re-appearance and demanded a share in the suit property, which was refused by the first defendant. Whereupon, Subramaniam, Plaintiff and the second defendant have jointly issued a notice through their Advocate on 23.02.1972 claiming 3/4 share in the suit property for which a reply was sent by the first defendant through his advocate on 08.03.1972. After exchange of notice, the plaintiff and others did not pursue the matter. After lapse of 16 years from the date of exchange of notice as mentioned above, the plaintiff had issued a notice dated 24.03.1988 and in that notice, he has not referred to the earlier notice sent by him on 23.02.1972, seeking the very same relief of partition. Further, in the present notice dated 24.03.1988, the year of death of Meenakshiammal was mentioned as 1965, instead of 1960. According to the first defendant, the plaintiff is not entitled for 1/3rd share in the suit property. Even for the present notice dated 24.03.1988, a reply notice was sent. It was further claimed that Subramaniam, the eldest brother, is not dead. It was further contended that the plaintiff has no substantial interest in the suit property and the right, if any, for other co-sharers has been lost by exclusive, open and adverse possession and enjoyment of the suit property by the first defendant for the past 28 years. According to him, since succession opened in the year 1960, institution of the suit after 28 years is not maintainable.
5. Before the Court below, the plaintiff examined himself as PW1 and marked Exs.A1 and A2 documents on his side. On behalf of the defendants, the first defendant examined himself as DW1 and one Chinnathambi was examined as DW2. Exs.B1 to B8 documents were marked on the side of the defendants.
6. On consideration of the oral and documentary evidence let in by both parties, the Court below framed issues, including the issue whether the plaintiff is entitled for partition and if so, what is the share he is entitled to. After considering the documentary evidence on record, the trial court concluded that the plaintiff is entitled for 1/3rd share in the suit property and accordingly decreed the suit.
7. Heard both sides. The learned counsel for the first defendant/appellant specifically argued that the suit for partition is bad for non-joinder of Subramaniam, the eldest son of Meenakshiammal. Though the said Subramaniam was not heard for sometime, he is not dead and therefore, non-impleading of the said Subramaniam is fatal to the case of the plaintiff. Even if there is any right in the suit property for the plaintiff, such right has been lost by virtue of the fact that the property in question has been along enjoyed by the first defendant, exclusively and adverse to the interest of the other co-parceners, therefore, the plaintiff is not entitled to any share in the suit property. To fortify his submission, the learned counsel for the appellant relied on the earlier notice issued by the plaintiff in the year 1972 claiming 1/4th share in the suit property, which was also replied stating that the first defendant is in exclusive possession and enjoyment of the suit property in his own right. Further, even after issuance of the earlier notice, no steps have been taken by the plaintiff, thus the suit was instituted after lapse of 16 years from the date of issuance of the previous notice. Further, the suit is not valued properly. When it is claimed that the plaintiff was in joint possession of the suit property, the plaintiff ought to have valued the suit and paid court fee accordingly, instead of valuing the suit under Section 37(1) of the Tamil Nadu Court Fee and Suit Valuation Act.
8. Per contra, the learned counsel for the plaintiff/first respondent herein vehemently argued that non-joinder of Subramaniam as a party to the suit will not affect the claim of the plaintiff in any manner for the simple reason that the parties, in their pleadings as well as evidence, have categorically admitted that the said Subramaniam was not heard from 1972 onwards. As per Section 108 of the Indian Evidence Act, when a person is not heard for more than seven years by persons who are normally expected to hear about him, the burden of proving that he is alive is on the person who affirms it. In this case, all the parties have admitted that none of them have heard about Subramaniam from 1972 onwards and the suit was filed in the year 1988 after sixteen years, which clearly shows that there is no necessity to implead him as a party to the suit as he is deemed to have died. In so far as the question of adverse possession is concerned, the plea of adverse possession is not mandatory and open as regards the co-shares or owners of the property. The only plea that can be raised is ouster. If the question of ouster is to be established, the first proposition of law is it should be specifically pleaded from which date ouster commences and thereafter, it should be proved in accordance with law as enunciated by various decisions of the Honourable Supreme Court as well as the High Court. In so far as the pleading of ouster was not pleaded at all in the written statement, whatever evidence let in before the Court, such evidence cannot be looked into as the principle of 'no pleadings no evidence' would come into play. The further contention of the plaintiff that no steps were taken after issuance of the notice in the year 1972 is concerned, there was an understanding and compromise entered into between the parties and this fact was established by production of marriage invitation card of plaintiff's son performed on 08.03.1987 in which the first defendant's name has been printed. Further, the marriage itself has taken place in the suit house coupled with the fact that in the voters list, the name of the plaintiff and first defendant are mentioned which is evident that the property was enjoyed jointly by all the parties after 1972. Therefore, the question of adverse possession or ouster will not arise in this case. Further, even now, the tax in respect of the suit property is being paid in the name of Meenakshiammal and mutation of revenue records has not been caused. Lastly, it was contended that mere assertion of any separate possession will not deprive the first defendant from claiming a share in the suit property and that by itself would not be sufficient to say the possession of the plaintiff is continuous and adverse to the interest of the defendants. Therefore, the question of payment of court fee cannot be raised.
9. I have carefully considered the submissions made by the counsel for both sides. The point for consideration in this appeal is
(i) Whether the plaintiff is entitled for partition?
(ii) Whether the suit is liable to be dismissed for non-joinder of Subramaniam, one of the brothers of the Plaintiff as well as the defendants, even though the said Subramaniam was available on the date of filing of the suit, as claimed by the first defendant?
(iii) Whether the plea of ouster raised by the first defendant is valid?
10. In order to decide whether Subramaniam, one of the brothers of the parties was alive on the date of filing the suit is concerned, the pleadings and evidence let in before the Court below has to be looked into. In the plaint, the plaintiff has categorically stated that "Rg;gpukzpad; ,stajpnyna ge;j ghr';fisj; Jwe;J njrhe;jphpahfg; ngha; ,we;Jk; ngha;tpl;lh;. In the written statement of the first defendant, it was stated in Para No.8 that "it is claimed that Subramaniyan, the elder son is dead". In Para No.9 of the written statement, it was stated that "This defendant submits that Subramaniyan is not dead and the share claimed by the plaintiff on the said assumption is not correct." In so far as the evidence is concerned, the plaintiff has stated that "vd;Dld; Tl gpwe;jth; Rg;gpukzpak;/ mtiu 24 tahpypUe;J ehd; ghh;j;jjpy;iy/ v';fs; FLk;gj;jpw;nfh. v';fs; cwtpdh; FLk;gj;jpw;nfh Rg;gpukzpak; foj nghf;Ftuj;JTl itj;jpUf;ftpy;iy/ mth; ,Uf;Fk; ,lk; bjhpatpy;iy/ v';fis bghWj;jtiuapy; mth; ,we;J tpl;ljhfnt ehd; fUJfpnwd;/" In the cross-examination of the plaint, it was stated that "vdf;Fk; vdJ mz;zDf;Fk; Rg;ukzpak; vd;w mz;zid eh';fs; ghh;j;jJ ,y;iy vd;gjhy; mth; ,we;jjhf fUjyhk; vd;W brhd;dhh;/" In the evidence of DW2, it was stated that "25 taJ tiuapYk; v';fs; FLk;gj;jpy; Rg;gpukzpak; ,Ue;jhh;/ mtUf;F jpUkzk; Mftpy;iy/ mtUf;F 26 tajpUf;Fk;nghJ tPl;il tpl;L btspbawptpl;lhh;///// 1972y; Rg;ukzpak; khatuj;jpw;F v';fs; tPl;ow;F te;jhh;/ rhkpahh; khjphp te;jhh;/ v';fs; tPl;oy; j';f itj;njd;/ Rkhh; 6 khj';fs; j';fpdhh;/ vdf;Fk; mtUf;Fk; kd!;jhgk; te;jJ/ kw;w K:d;W ngh;fSk; nrh;e;J vdf;F ghf mwptpg;g[ bfhLj;jhh;fs;/ K:d;W rnfhjuh;fSk; vdf;F bfhLj;j mwptpg;g[ gp/rh/M/4/ mjw;F ehd; bfhLj;j gjpy; mwptpg;g[ efy; gp/rh/M/5/ me;j gjpy; mwptpg;gpid gjpt[ bra;jjw;fhd urPJ gp/rh/M/6 mjw;F gpwF jhth Vjk; nghltpy;iy/ mjw;F gpwF Rg;ukzpak; vd;d Mdhh; vd;W bjhpatpy;iy/////// mth; v';fs; tPl;oy; xU Mz;L j';fpapUe;jhh;/ mjd; gpwF Ciu tpl;L nghdth; v';nf ,Uf;fpwhh; vd;W vdf;F bjhpahJ/ mjd; gpwFk; foj nghf;Ftuj;Jk; ,y;iy/ In the Cross-examination of DW2, it was stated that "1972,y; ehd; mtiu ghh;f;ftpy;iy vd;W brhd;dhy; rhpay;y/ ehd; mjw;F gjpy; bfhLj;njd;/ Rg;gpukzpak; v';nf ,Uf;fpwhh; vd;gJ gw;wp gjpy; bfhLf;Fk;go ehd; gp/rh/M/5y; vGJk;go vdJ tHf;fwp"hplk; ehd; brhy;ytpy;iy/
11. A cumulative reading of the evidence let in by the parties would establish that none of the parties, who are known to Subramaniam, have heard about him atleast for a period of more than 16 years. There is no denial about this. With this background that all the parties having not heard about Subramaniam for about 16 years, it has to be considered whether the said Subramaniam was alive during the time of filing of the suit or to be treated as alive and whether such person should be impleaded as a party in a suit for partition.
12. A reading of Section 107 and 108 of the Evidence Act would through much light on this point, and the said provision can be usefully extracted hereunder:-
"107. Burden of proving death of person known to have been alive within thirty years:- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. Burden of proving that a person is alive who has not been heard of for seven years. (Provided that when) the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is (shifted to) the person who affirms it."
13. As per Section 107 of The Indian Evidence Act, the burden of proving the death of a person, is on the person who affirms it. To invoke Section 107, if a person is shown to have been alive within thirty years, then it is for the person who asserts that he is dead should prove. Admittedly, in this case, it is alleged that Subramaniam is alive in the year 1972 i.e., within thirty years from the date of filling of the suit. Then it is for the person, who alleges that he is dead, to prove his death. Section 108 of the Indian Evidence Act is a proviso to Section 107 of the Indian Evidence Act. It starts with the words "provided that when" and states that the question whether a man is alive or dead has to be proved by the person who affirms it. Therefore, a cumulative reading of Section 107 and 108 of the Act states that once a person is able to establish before the Court that atleast continuously for a period of seven years a person's whereabouts having not been heard at all by those persons who normally could have contacted him, then the burden shifts on the person who alleges that he is alive. In this case, even as admitted by the first defendant in his written statement as well as in his evidence, none of the parties, who would receive some communication from the said Subramaniam have not heard of him for atleast a period of sixteen years. Taking into consideration of the same, coupled with Section 108 of the Indian Evidence Act, the burden shifts from the plaintiff to the first defendant, who alleges that the said Subramaniam is alive. The first defendant has not let in any evidence to show how he is able to establish that the said Subramaniam is alive. Therefore, the question of impleading the said Subramaniam in the suit for partition does not arise. Therefore, this Court is of the view that the Court below has rightly held that there is no necessity to implead Subramaniam and all the necessary parties have been impleaded in the suit for partition. Therefore, the question whether non-joinder of Subramaniam is fatal to the case is answered against the first defendant and in favour of the plaintiff.
14. The second question is regarding the plea of adverse possession. Such a plea was not specifically raised anywhere in the written statement or the word 'outster' was used in the written statement. As rightly pointed out by the counsel for the plaintiff as well as the second defendant, though the second defendant was set exparte before the lower court, and in the appellant Court is represented by a counsel, it was contended that the plaintiff's plea of ouster has not at all been established. The main contention of the plaintiff is way back in the year 1972, first notice was issued by all the owners, including Subramaniam calling for partition. In that notice, it was claimed that partition has to be effected giving 1/4th share of the property to each of the legal heirs. Therefore, it is very clear that the property was to be divided among them in four equal shares and till then no partition has taken place. In that notice, it was specifically stated that (i) The first defendant alone was enjoying the property after the death of Meenakshi Ammal in the year 1960 and (ii) mother has given the house to the first defendant absolutely since she was living with him and taken care of by him. In the reply notice dated 08.03.1972, it was stated that "he got the property from the mother". No where it was stated that the other co-owners were ousted from their share in the property, but it was contended that he is absolutely enjoying the property. After that, there was no further exchange of notice, for which, it was contended that from 1972 to 1988. Subsequently, for the suit notice dated 24.03.1988, a reply was given by the first defendant stating that all the brothers have kept quiet for so long without seriously putting any claim to the share of the property. Baring this one sentence, no where the word 'ouster' or adverse possession is mentioned. In the written statement also, the first defendant would contend that "this defendant and his family alone is in exclusive possession and enjoyment of the suit house from the date of death of Meenakshiammal in 1960 continuously for the past 28 years. The plaintiff has no subsisting interest in the suit property and the rights, if any, of the other sharers had been lost by the open and adverse possession of this defendant." As stated supra, even in the written statement, the first defendant does not say or even use the word "ouster" or in what capacity he has been enjoying the suit property, which is adverse to the interest of the others. It was also stated that the suit property was allegedly gifted to the first defendant by his mother Meenakshiammal in the year 1958, two years prior to her death in 1960. In the cross-examination of DW2 it was specifically stated that "vdJ jhahh; ,wg;gjw;F 2 khj';fSf;F Kd;g[ tha;bkhHpahf tHf;fpil tPl;il tpl;L bfhLj;Jtpl;lhh;/" Except this, no where in the chief-examination it was stated about the adverse possession of the property, the date on which the possession become adverse animus decidendi to prove the plea of adverse possession. In the cross-examination, it was further stated that "mg;go tha;bkhHpahf tpl;L bfhLj;jJ xUtUf;Fk; bjhpahJ/ tPl;L thpia khw;wntz;Lbkd;W ehd; Kaw;rpf;ftpy;iy/ ehsJ tiuapy; tPl;L thp tpjpg;g[ vdJ jhahh; bgahpnyna ,Ue;J tUfpwJ/ miu Mz;ow;F U:/56/- tPl;L thp tpjpg;g[ nghlg;gLfpwJ/ vdJ jhahh; ,we;jjw;F gpwF tHf;fpil tPl;il Mjhukhf fhl;o fld; vJk; bgwtpy;iy/ ehd; vdJ jhahh; vdf;F tpl;L bfhLj;j tpguj;ij vdJ rnfhjuh;fSf;F brhy;ytpy;iy/ jpUkzj;jpw;F gpwF bfh";r ehs; thjp tHf;fpil tPl;oy; ,Ue;jhh;/ thjp jhth tPl;oy; ,Ue;J bfhz;L Xl;L nghl;L ,Uf;fpwhh; vd;W brhd;dhy; rhpay;y/ njh;jy; rkaj;jpy; thjpa[k; ,tuJ kidtpa[k; tUthh;fs;/ 5. 6 tUlkhfj;jhd; thjpa[k; mtuJ kidtpa[k; jhth tPl;oy; FoapUf;ftpy;iy vd;W brhd;dhy; rhpay;y". Even in the evidence of DW2, both in the chief examination as well as cross-examination, nothing was stated about 'ouster' or 'adverse possession' or 'exclusive enjoyment'. Contra, in the cross-examination, it was clearly admitted that the only source for him to claim that he is enjoying the property exclusively is on the basis that the mother had orally given this property two years prior to her death in the year 1958. Such an admission is very clear that it is only a oral gift. Even this oral gift was not made known to the other co-sharers during the life time of his mother. Above all, the revenue records have not been mutated nor any steps have been taken by the first defendant to mutate his name in the revenue records. Whereas, it was further admitted that even till the date of the suit, the property stands in the name of the mother. When this admission is considered, merely because in an earlier notice the parties have claimed partition and thereafter they have not pursued the matter would not amount to changing the character of possession as that of adverse possession. In this context, the learned counsel for the first respondent/plaintiff relied on the decision of the Honourable Supreme Court in (Govindammal vs. R. Perumal Chettiar and others) AIR 2007 SC 204 where, an identical situation exists namely one co-sharer issues notice for partition and thereafter it was not pursued further. It was held that merely because notice was issued and thereafter it was not pursued, it would not be sufficient to show that the co-sharers have lost their right by the adverse possession of the others. In Para No.7, it was held as follows:- "7. .........Just because a notice was issued and she did not pursue the same does not extinguish the claim of the plaintiff thereby giving a handle in the hands of the step sons by way of adverse possession. In order to prove adverse possession something more is required. Once it is accepted that she was the legally married wife of Raju Naidu then her right to claim partition and share in the property stands out and that cannot be defeated by the plea of ouster or adverse possession. In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case".
15. In (Des Raj and others vs. Bhagat Ram (Dead) by LRs and others) 2007 2 CTC 838 (SC), the Honourable Supreme Court held that the onus to prove adverse possession will be on the person raising such a plea. Mere assertion of title by itself cannot be sufficient unless the plaintiff proves the animus possidendi because proving of adverse possession is on the person claiming it. Para No.22 and 25 of the said judgment can be usefully extracted hereunder:- "22. 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 statue are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 1963 vis-a-vis Article 142 and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea.....
25. Mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidenedi............."
16. In the decision rendered by this Court reported in (Ayeesha Bibi and 4 others vs. S.Mohamed Ibrahim and 6 others) 2002 (4) CTC 545, it was held in para No.21 as follows:-
"21. It is settled law that the possession of a co-owner cannot be considered to be adverse to the other co-owner. The entry and possession of a land by one co-owner is not presumed to be adverse. The possession becomes different when the title of some of the members has been denied and their right and enjoyment of the properties has been repudiated to their knowledge. From that moment, the character of the possession of the hostile co-owner changes and it becomes adverse possession, who have knowledge of the ouster and the limitation time begins to run against them."
17. In this case, as stated supra, no where the first defendant has asserted that his possession is adverse to the other co-sharers and he is enjoying the suit property on his own rights.
18. In the decision of this Court in (Pappayammal vs. Palanisamy and others) 2005 3 CTC 292, this Court, after considering the various decisions of the Honourable Supreme Court, has held the below mentioned propositions for adverse possession in Para No.32, which reads as follows:- "32. The following are the important principles, laid down in the above decisions of this Court as well as the Supreme Court:
v) When the co-owners are close relations, something more is to be proved, to prescribe title by adverse possession, than a case between two strangers.
vi) It would not be sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession.
vii) A single circumstance of payment of tax or mutation of records would not, by itself, establish ouster or adverse possession as against the co-owner."
19. In the decision rendered by this Court reported in (Lakshmiammal and another vs. C.P.Nanjappan and 2 others) 2000 (III) CTC 29, this Court held that there should be a pleading of ouster that one co-owner was in separate possession and other co-owner was out of possession. In Para No.16 and 17, it was held as follows:- "16. All the above mentioned decisions undoubtedly lay down the following well accepted propositions:-
(a) There should be a pleading of ouster and it would not be sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession.
(b) The possession should be open with assertion of hostile title and to the knowledge of the co-owner.
(c) Adverse possession will commence only from the date of ouster.
(d) The single circumstance of either mutation of records, or payment of taxes, non-partitipation in the rents or in management of the properties, appropriation of income etc., each of these facts will not by itself establish ouster or adverse possession as against co-owner. But the cumulative effect of the circumstances have to be properly weighed.
17. ....... After referring to various decisions, I have held that mutation of revenue records, payment of taxes, long possession of properties, management of the property, appropriation of income, the other shares being out of possession of the property etc., each of such act by a co-owner by itself may not be sufficient to establish ouster or open assertion of adverse title as against another co-owner, but if most of these features are present the cumulative effect of the various pieces of evidence should ultimately weigh in rendering the verdict."
20. A cumulative reading of all the above decisions of the Honourable Supreme Court as well as this Court would lead to the conclusion that a person who claims to be in possession, which is adverse and which extinguishes the legal right of the other co-owners, has to specifically plead and assert that his enjoyment is open, hostile and adverse to the interest of the others. More so, in the case of co-owners, such a pleading and proof thereof has to be established beyond reasonable doubt because it is the normal tendency in the case of co-ownership that one co-owner would enjoy the property and his enjoyment, normally, can be treated to be joint possession and enjoyment for the benefit of the other co-owner, unless the contrary is proved. Under such circumstance, payment of tax or mutation of records will not clout the said person with the right of possession, claiming it to be the adverse possession. Therefore, the facts and circumstances and the evidence on record clearly proved that the first defendant has not established, in accordance with law, the plea of ouster and adverse possession. This point is answered accordingly.
21. In view of the above discussion, the question of payment of court fee on the pleading that the parties are in joint possession or separate possession does not arise for consideration at all. The first defendant admitted to be in possession of the suit property and his possession is for and on behalf the other co-owners. Therefore, this Court is of the view that the plaintiff has rightly valued the suit and paid the correct and proper court fee.
22. In the result, the judgment and decree passed by the court below is confirmed. The appeal suit is dismissed. No costs.
Index : Yes
Internet : Yes .
The Subordinate Judge,
Sub Court, Mayiladuthurai
A.S. No. 1086 of 1990