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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 ..... 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 are appellants in this case. As some of the defendants started making construction in the house in assertion of a hostile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll subsist even after abatement of a previous suit for partition because a partition is a recurring cause of action so long as the property remains joint. A similar view was expressed by the Pepsu High Court in Devi Sahai v. Nanar A I R 1955 Pap. 28. It is, therefore, clear that the right to' bring a suit for partition is a continuing right incidental to the ownership of joint property. This right subsists so long as the property is not partitioned. A co-sharer may at one time desire partition and institute proceedings. He may then change his mind and drop the proceedings. This would not debar him from bringing a fresh suit for partition if, under fresh circumstances, he considers a partition desirable or necessary. I, therefore, hold that this suit is not barred under Order 22, Rule 9, Civil Procedure Code. The next point urged by Shri Gupta was that the plaintiff had failed to show that the house in suit was joint family property. He pointed out that in the plaint it is stated that the house was acquired by the common ( ancestor Dhodiba but there was no evidence to that effect. It is no doubt true that the plaintiff failed to adduce any evidence to show that the house w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff 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 an exclusive owner by alienating it by sale or otherwise. In this case, there is nothing to show that the appellants, at any time, alienated any part of the property in suit by transfer or otherwise. This decision also is, therefore, of no help to the appellants. Similarly, the decision of the Calcutta High Court in Debaprata Ghose v. Jnanendra A I R 1960 Cal. 381, does not, in any way, support the contention of Shri Gupta. From the observations in paragraph 12, it is clear that an open assertion of hostile title, coupled with exclusive possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusive and hostile title in himself to the property. (3) The assertion of a hostile title need not be by any express declaration but may be inferred from the conduct and other circumstances which would give to the other co-owners a clear indication of hostile animus. Applying these principles to the present case, it would appear that the appellants have failed to establish that they were in adverse possession of the property. As pointed out above, there is nothing to show that at any stage they denied the plaintiff's title. In fact, in the written statement dated 29-10-1945, in the earlier suit, vide Ex. P-1, Sadashivrao, predecessor-in-title of the appellants, had clearly admitted that the house was a joint family property and that the plaintiff could obtain his share by partition at any time (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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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