K. Kannan, J. - (1.) THE suit is for recovery of possession of the property of 9 kanals and 10 marlas being 190/885 share of land of total extent of 45 kanals 5 malras in two different rectangles, namely, Rect. No. 11 and Rect. No. 9 of Village Dehpur, Tehsil Dasuya, District Hoshiarpur. Both the Courts below allowed for the plaintiff's decree and rejected the plea of the defendant that he had prescribed title to the property by adverse possession. The Appellate Court had reasoned while dealing with several decisions cited on behalf of the appellants that the property had belonged originally to Mahan Devi in 6 shares in the defendant and after Mahan Devi's death, a compromise was effected making equal the entitlement of both parties, each one having 9 shares each. The Court found that in a case where the property was comprised in a joint khata, the possession of one co -sharer shall be taken as on behalf of another co -sharer as well. The Court took notice of the fact that the consolidation proceedings were completed in the year 1970 and it took nearly 4 years for its completion. The Court, therefore, took it that if at all, the possession could have been taken as adverse only from the time when the consolidation proceedings commenced in the year 1966 and the suit having been filed in the year 1976, it could not be stated that the defendant could have prescribed title by ouster adverse possession.
(2.) THE Learned Counsel for the appellants relies on a judgment of the Hon'ble Supreme Court in Des Raj and others Versus Bhagat Ram (dead) by LRs and others -, 2007 (2) RCR (Civil) 581 that dealt with the case of a co -owner of a property, who had not taken any action for more than 12 years to assert his right in spite of the attempt of the other co -owner asserting its right by filing a civil suit and denying his title. An institution of a suit itself was taken as an instance of express denial by conduct and non -action by the other co -owner for 12 years when an earlier suit had been instituted was taken to constitute ouster. We do not have such a situation here of any express conduct which could have brought home to the knowledge of the co -owner/plaintiff that the defendant was denying his right in the property. This judgment of the Hon'ble Supreme Court cannot, therefore, be applied to the facts of the case. A fundamental distinction exists between a mere possession of 12 years by which a stranger can prescribe title to the property by adverse possession and as possession between co -owners where a mere physical possession cannot constitute adverse possession. The precept is that one co -owner's possession shall always be taken as on behalf of all others. The component of 'ouster' involves a denial of title to the knowledge of other co -owner and that denial of right by one co -owner cannot be merely inferred by wrongful possession. Denial must be by express conduct in some way that cannot be covert. In this case, it is an admitted position that there took place no mutation in favour of the defendant and the compromise decree of the year 1959 was merely to affirm an equal right in the property. There was no compulsion for either of co -owners to press for a division immediately and if one party had the benefit of exclusive enjoyment notwithstanding a recognition of a right of yet another person to an equal share, it cannot oust the other co -owner. The trial Court and the Appellate Court have considered the matter correctly and I find no reason to interfere with the same. The substantial questions of law raised in this case are answered against the appellant and the appeal is dismissed.;