Mere non-possession does not constitute ouster or extinguish a co-owner’s rights.

Late R.L. Arora purchased Flat No. H-320, Naraina Vihar, New Delhi, from his own funds and obtained a conveyance deed from the DDA on 27 July 1987.

He died intestate on 4 June 1988, leaving behind his wife, two sons—including the plaintiff, Sunil Kumar Arora—and a daughter, Vandana Murgai.

One son, Devender Kumar Arora, predeceased the suit and was survived by his wife, Bina Arora, and son, Naman Arora, who were arrayed as Defendants 1 and 2.

The plaintiff claimed that the property devolved upon the legal heirs and that he remained a co-owner in constructive possession, although Defendant No. 1 continued to occupy the property.

Defendant No. 1 contended that the plaintiff had left the property in 1993, had been excluded from possession and enjoyment since then, and that the suit was barred by limitation.

The plaintiff sought partition after Defendant No. 1 allegedly denied his share in a letter dated 10 September 2018, following his demand for partition in his reply dated 29 August 2018.

The suit was instituted on 10 January 2019.

The trial court dismissed the application under Order VII Rule 11 CPC, holding that limitation involved disputed facts, and subsequently passed a preliminary decree under Order XII Rule 6 CPC, declaring the plaintiff, Defendants 1 and 2 jointly, and Defendant No. 4 entitled to one-third shares each.

During the proceedings, Defendant No. 3 died and Defendant No. 4 executed a registered relinquishment deed in favour of the plaintiff, which she admitted to be genuine.

Whether the plaintiff continued to be a co-owner of the suit property despite not residing there since 1993 and the appellant’s plea of ouster and exclusive possession?

Whether the suit for partition was barred by limitation on the ground that the plaintiff had allegedly been excluded from possession since 1993?

Whether the trial court was justified in passing a preliminary decree of partition under Order XII Rule 6 CPC on the basis of the pleadings and admissions, notwithstanding the appellant’s plea that triable issues required evidence?

What was the effect of Defendant No. 4’s registered relinquishment deed on the shares declared in the preliminary decree?

The Court applied Section 96 CPC and Order XLI CPC governing a regular first appeal, and Order XII Rule 6 CPC permitting judgment on admissions where the material facts necessary for relief are admitted.

Under the law of co-ownership, mere physical possession by one co-owner does not extinguish the rights of the other co-owners; ouster must be clearly established through open, continuous and hostile possession, with knowledge of and exclusion of the other co-owner.

The Court relied on Nagabhushanammal (D) by LRs v. C. Chandikeswaralingam, Civil Appeals Nos. 1858–1859/2016, for the principle that a co-owner cannot claim exclusive ownership unless possession is shown to be in denial of the other co-owner’s title and hostile to that co-owner.

It also considered Article 110 of the Limitation Act, relating to a suit by a person excluded from joint family property, and held that it was inapplicable absent established legal ouster.

The Court referred to Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust, Brigadier (Retd.) Shyam Prasada v. Smt. Dayavati, and N. Asha Devi v. R. Aravind Kumar on the treatment of limitation as ordinarily a mixed question of law and fact, while recognising that a plaint may nevertheless be rejected under Order VII Rule 11 CPC where the limitation bar is apparent from the plaint itself.

The devolution of the deceased owner’s interest was governed by intestate succession, under which the surviving Class I heirs succeeded to equal shares.

The Court held that ownership of the property by late R.L. Arora, his intestate death, and the relationship of the parties were undisputed.

The appellant’s case established, at most, that she had been in physical possession and that the plaintiff had not resided in the property since 1993. It did not establish an unequivocal hostile denial of the plaintiff’s title, communicated to him and maintained to his exclusion.

The appellant had entered the property as the wife of a co-sharer, and mere continued residence or the plaintiff’s absence could not convert permissive or co-sharer possession into exclusive ownership.

The pleadings themselves acknowledged that the plaintiff had visited the property during the lifetime of Defendant No. 3, undermining the plea of complete and hostile exclusion.

Since legal ouster was neither sufficiently pleaded nor established, the Court held that Article 110 of the Limitation Act did not apply.

The actionable denial of the plaintiff’s co-ownership occurred when Defendant No. 1 rejected his claim for partition in September 2018. The suit filed on 10 January 2019 was therefore within limitation.

The earlier order refusing rejection of the plaint under Order VII Rule 11 CPC did not prevent consideration of the issue at the decree stage; however, on the pleadings and admitted facts, there was no factual basis for the appellant’s limitation and ouster defences.

Accordingly, the trial court was justified in granting a preliminary partition decree under Order XII Rule 6 CPC.

The Court nevertheless noted that Defendant No. 4’s registered relinquishment deed, admitted by her, required corresponding adjustment of the declared shares.

If the deed was found operative, Defendant No. 4’s one-third share would devolve in favour of the plaintiff, resulting in the plaintiff holding two-thirds and Defendants 1 and 2 jointly holding one-third.

The Court held that the plaintiff remained a co-owner, that the appellant had failed to establish ouster or exclusive ownership, and that the partition suit was not barred by limitation because the denial of the plaintiff’s share occurred only in 2018.

The original declaration of one-third shares in favour of the plaintiff, Defendants 1 and 2 jointly, and Defendant No. 4 was sustained, subject to drawing a modified preliminary decree giving Defendant No. 4’s one-third share to the plaintiff if her registered relinquishment deed was acted upon, thereby making the plaintiff’s share two-thirds and that of Defendants 1 and 2 jointly one-third.