2015 (3) TMI 1361 - HC - Indian Laws

Partition and separate possession of suit property - time limitation - HELD THAT - An 'ostensible owner' would be a person in whose favour the title deed stands. The real owner may be another. An example would be a benami transaction. If a dispute arises in such cases, the presumption would be that the ostensible owner is the owner. The real owner would have to prove otherwise. If the property is transferred by the ostensible owner with the implied consent or to the knowledge of the real owner, then the real owner would be precluded from questioning the transfer. But on the facts of this case, the purchasers of the dispute property were Dhanram Modaliar and Venugopal Modaliar. It was the claim of Defendant No. 7 that they were ostensible owners. And the real owner was M/s. Standard Tile and Clay Works Limited. In that, it was claimed that they had purchased the property in their individual names no doubt, but were in fact, acting as Directors of the company, which was yet to be incorporated as on the date of the transaction. However, the sale deed does not mention the same. Hence, the application of Section 41 of the TP Act does not arise. Time Limitation - HELD THAT - There is no pleading in the written statement that that suit schedule proprieties were joint family properties and that the plaintiff was excluded from possession by ouster and the plaintiff has lost title by ouster and adverse possession. The defendants have not admitted that the suit schedule properties were joint family properties. There should be pleadings and there should be evidence - the finding of the learned judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation, is a finding which is contrary to law Article 110 of the Limitation Act, is not at all applicable. Appeal allowed.

Summary

Issues Involved:
1. Title of the 7th defendant to the suit property.
2. Bar of the suit by limitation.
3. Sufficiency of valuation and payment of court fee.
4. Plaintiff's claim of joint title or possession of the suit property.
5. Plaintiff's entitlement to partition and possession of 1/7th share.
6. Reliefs entitled to the parties.

Issue-wise Analysis:

1. Title of the 7th Defendant to the Suit Property:
The trial court's finding that the 7th defendant had title to the suit property was based on the premise that the companies were formed after the purchase of the property. However, evidence showed that the companies were incorporated before the purchase. The sale deed dated 14.4.1945 (Exhibit D-2) did not confer title to the 7th defendant as it was not supported by proper documentation such as a resolution from the Board of Directors or the company's seal. The mere act of mortgaging the property by the 7th defendant did not establish ownership. The court concluded that the 7th defendant did not prove title to the suit property.

2. Bar of the Suit by Limitation:
The trial court's conclusion that the suit was barred by limitation was found erroneous. There was no plea of adverse possession or ouster by the defendants. The mere non-inclusion of the property in the earlier partition deeds of 1962 and the suit O.S. No. 56/1969 did not amount to exclusion of the plaintiff from possession. The court held that Article 110 of the Limitation Act was not applicable, and the suit was not barred by limitation.

3. Sufficiency of Valuation and Payment of Court Fee:
This issue was not specifically addressed in the detailed judgment. However, given the overall context, it appears that the trial court's finding of insufficiency was overturned by the appellate court.

4. Plaintiff's Claim of Joint Title or Possession of the Suit Property:
The plaintiff provided evidence such as the sale deed dated 3.2.1938 (Exhibit P-1) and records of rights (Exhibits P-2 and P-3), which indicated joint ownership. The trial court's reliance on documents like Exhibit D-46, which was a photocopy and not properly authenticated, was found erroneous. The appellate court concluded that the plaintiff had established joint title and possession.

5. Plaintiff's Entitlement to Partition and Possession of 1/7th Share:
The appellate court found that the plaintiff was entitled to partition and possession of 1/7th share in the suit properties. The trial court's reasoning that the plaintiff was estopped from claiming the property based on the mortgage deeds and the compromise decree in O.S. No. 56/1969 was incorrect. The plaintiff's claim was supported by valid documents proving joint ownership.

6. Reliefs Entitled to the Parties:
The appellate court set aside the trial court's judgment and decreed the suit in favor of the plaintiff, granting the reliefs as prayed for. A preliminary decree for partition and separate possession was ordered to be drawn up.

Conclusion:
The appellate court allowed the appeals, set aside the trial court's judgment, and decreed the suit in favor of the plaintiff, establishing his entitlement to 1/7th share in the suit properties and ordering a preliminary decree for partition.