Telangana High Court
B. Sujatha vs C. Pentaiah on 24 March, 2026
IN THE HIGH COURT FOR THE STATE OF TELANGANA :
HYDERABAD
***
CITY CIVIL COURT APPEAL No.90 of 2011
Between:
B. Sujatha, W/o. Sri B. Ravinder,
Aged about 44 years, Occ: House hold
R/o 4-5-37, Hayatnagar Ranga Reddy District.
Appellant
VERSUS
C. Pentaiah, S/o. Late C. Shiva Shanker,
Aged about 60 years, Occ: Business and 2 others.
Respondents
ORDER PRONOUNCED ON: 24.03.2026
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_________________________________
NARSING RAO NANDIKONDA, J
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THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
+ CITY CIVIL COURT APPEAL No.90 of 2011
% 24.03.2026
# Between:
B. Sujatha, W/o. Sri B. Ravinder,
Aged about 44 years, Occ: House hold
R/o. 4-5-37, Hayatnagar Ranga Reddy District.
Appellant
VERSUS
C. Pentaiah, S/o. Late C. Shiva Shanker,
Aged about 60 years, Occ: Business and 2 others.
Respondents
! Counsel for Petitioner(s) : Mr. B. Shankar, learned
counsel for the appellant.
^Counsel for the respondent(s) : Mr. B. Dananjaya, learned for
the respondents.
<GIST:
> HEAD NOTE:
? Cases referred
1) AIR 1995 Sc 1789
2) RFA No.946 of 2018
3) AIR 1958 Assam 67
4) ILR 37 All 115: AIR 1915 All 1 (2)(A)
5) 1988 (3) S.C.R. 198
6) 2016 12 SCC 288
7) 2007 (3) ALD 760
8) 1999 (3) CCC 112
9) AIR 2004 SC 1206
10) AIR 2022 SC 577
11) AIR Online 2022 SC 450
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IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA
CITY CIVIL COURT APPEAL NO.90 OF 2011
Date: 24.03.2026
Between:
B. Sujatha
...Appellant
AND
C. Pentaiah and 2 others
...Respondents
JUDGMENT
This appeal is filed by the appellant under Section 96 of
the Civil Procedure Code, 1908, being aggrieved by the
Judgment and Decree, dated 18.01.2011 passed in OS No.588 of
2006 by the learned II Additional Chief Judge, City Civil Court,
Hyderabad.
2. Heard Sri B. Shankar, learned counsel for the appellant
and Sri B. Dananjaya, learned counsel for the respondents.
Considering the written submissions and the decisions relied
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upon by both the counsel and perused the entire material on
record.
3. For the sake of convenience, the parties are hereinafter
referred to as they are arrayed before the Trial Court.
4. The brief facts of the case are that the plaintiff and the three
defendants are the children of the late Chitrala Shiva Shanker, a
civil contractor who passed away in 1976, and the late Smt.
Maniyamma. The primary suit schedule property is a house
measuring 704 Sq. yards located in Chikkadpally, Hyderabad,
which was acquired by the father during his lifetime but stood in
the name of the mother. Following the father’s death, the two
sons i.e., defendant Nos.1 and 2 took control of the family
business and properties. The plaintiff alleges that defendant
Nos.1 and 2 have been managing the property and collecting
significant income from it. This includes Rs. 5,000/-per month
in rent from various residential portions (consisting of two-
bedroom and one-bedroom units) and approximately Rs.
12,000/- per month from charging auto-rickshaws to park on
the vacant land overnight. While the plaintiff initially occupied
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one room for her children’s studies and did not press for
partition due to cordial relations. She now seeks formal legal
action.
5. The conflict arose when the plaintiff came to know that
defendant Nos.1 and 2 were attempting to alienate the suit
schedule property to third parties without her consent. In
response to a legal notice demanding partition, the defendants
claimed that the plaintiff and defendant No.3 had previously
signed affidavits giving up their shares in the property. The
plaintiff vehemently denies this by asserting that the affidavits
are forged documents created with intent to grab the property.
Consequently, the plaintiff is seeking a formal partition of the
suit schedule property and recovery of her rightful 1/4th share.
She maintains that as one of the four children, she is entitled to
an equal portion of the estate left by her parents and has
requested the Court to grant her possession of that specific
share.
6. Defendants Nos.1 and 2 filed their written statement
admitting that defendant No.1 has been in enjoyment of the suit
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schedule property as its absolute owner, to the knowledge of all
concerned, including the plaintiff. In support of this contention,
they relied upon an affidavit dated 16.12.1988, allegedly
executed by the plaintiff, wherein it is stated that the plaintiff
has no claim over the suit schedule property. On this basis, the
defendants contend that the present suit is not maintainable.
7. It is further contended that the plaintiff has not initiated any
proceedings for more than twelve years, despite being fully
aware of the defendants’ possession and enjoyment of the
property, including realization of profits therefrom.
Consequently, it is argued that the plaintiff and defendant
No.3 have been effectively ousted from the suit schedule
property. The defendants also assert that no demand for
partition was made by the plaintiff or defendant No.3 for several
years, and that the alleged demand made by the plaintiff after
her marriage around 1990-1991 was denied. Therefore, the suit
is claimed to be barred by limitation.
8. Additionally, the defendants contend that the plaintiff’s
claim is defeated by the principles of ouster and adverse
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possession, asserting that their continuous, open, and hostile
possession of the property has extinguished the rights of the
plaintiff.
9. After considering the pleadings of both parties, the learned
trial Court framed the following issues:
1. Whether the plaintiff had sworn any affidavit in the year 1988
foregoing her rights in schedule property?
2. Whether the suit property is available for partition? If so, against
whom and into how many shares?
3. Whether the plaintiff is entitled for partition as prayed for?
4. To what relief?
10. On behalf of the plaintiff, the plaintiff got himself examined
and marked Exs.A1 to A7 and on behalf of the defendant DW-1
& DW-2 got themselves examined and marked Exs.B1 to B12.
11. The learned Trial Court dismissed the suit solely on the
ground of limitation, relying upon the deposition of PW-1. In her
evidence, PW-1 stated that she had been demanding partition
for a long time and insisting upon it for the past three years. She
further deposed that, after her marriage in the year 1987, she
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demanded partition of the suit schedule property in or around
1990-1991, which request was refused by the defendants. She
also asserted that she had been claiming her share in the profits
derived from the said property.
12. Aggrieved by the same, the present appeal is filed on the
ground that the learned trial Court erred in dismissing the suit
based on the Law of Limitation. The appellant argues that in a
suit for partition, the right to sue “accrues day by day” as long
as the property remains joint and the learned trial Court
wrongly concluded that the suit was barred by time by
misinterpreting a casual demand for partition in 1990-1991.
Furthermore, the appellant highlights that the defendants did
not even raise the plea of limitation in their initial reply notice,
suggesting the Court applied this legal bar without proper
justification or a liberal construction so as to serve substantial
justice. Additionally, the appellant challenges the trial Court’s
handling of Ex.B10, an affidavit allegedly signed by the plaintiff
to give up her share. The grounds assert that the trial Court
illegally shifted the burden of proof onto the plaintiff to disprove
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the document, rather than requiring the defendants, who
produced it to prove its authenticity. The appellant claims that
the Court ignored the plaintiff’s explicit denial of the document
and failed to send the disputed signature for handwriting expert.
13. The question of applicability of the Limitation Act,
particularly whether any period of limitation is prescribed for
seeking partition, requires consideration. It is, therefore,
necessary to first examine the relevant legal principles governing
limitation in partition suits before proceeding to analyze the
factual background of the case.
14. The learned counsel for the defendants/respondents
contended that defendant Nos.1 and 2 are enjoying the suit
property as absolute owners to the knowledge of everybody
which is manifest and evident from the affidavit and the plaintiff
has no right to seek partition and the same was not demanded
in view of the cordial relationship, is a blatant lie and the same
is false and denied. It is not out of place to mention here that,
defendant Nos.1 and 2 are enjoying the rents upon the death of
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their mother till the date of knowledge of plaintiff and utilizing
the same onto themselves.
15. The learned counsel for the appellant relied upon the
various judgments which are as follows:
i. Vidyadevi Alias Vidyavati V. Prem Prakash and
Others 1,
ii. Srinivas And Others V. M.C. Narayanaswamy
and Others 2,
iii. Tara Kishan Das V. Beharu Barman and
Others 3,
iv. T.C. Mukerji V. Afzal Beg 4,
v. Collector Land Acquisition, Anantnag and
Another V. M/S. MST Katiji and Others 5.
In Vidyadevi Alias Vidyavati V. Prem Prakash and others (1st
cited supra), the relevant paragraph is extracted hereunder:
20. The legislature has not prescribed any period of limitation
for filing a suit for partition because partition is an incident attached to
the property and there is always a running cause of action for seeking
partition by one of the co-sharers if and when he decides not to keep
his share joint with other co-sharers. Since the filing of the suit is
wholly dependent upon the will of the co-sharer, the period of
limitation, specially the date or time from which such period would1
AIR 1995 SC 1789
2
RFA No.946 of 2018 (PAR)
3
AIR 1958 Assam 67
4
ILR 37 All 115: AIR 1915 All 1 (2)(A)
5
1988 (3) S.C.R. 198
11 of 31
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legislature and, therefore, in this Act also a period of limitation, so far
as suits for partition are concerned, has not been prescribed. This,
however, does not mean that a co-sharer who is arrayed as a defendant
in the suit cannot raise the plea of adverse possession against the co-
sharer who has come before the court as a plaintiff seeking partition of
his share in the joint property.
In Srinivas and Others V. M.C. Narayanaswamy and Others
(2nd cited supra), the relevant paragraph is extracted hereunder:
23. The law with regard to applicability of Order IX Rule 9 of
C.P.C. in respect of partition suits is well settled. It has been held by
the Himachal Pradesh High Court in the case of Asha Sharma and
Others v. Amar Nath and Others [AIR 2003 Himachal Pradesh 32]
that co-sharers’ right to seek partition is a recurring cause of action,
until and unless the partition between members of the joint family is
effected, the joint owner can file a suit for partition until partition is
actually effected irrespective of the fact whether earlier suit for such
partition was dismissed for non-prosecution or the earlier decree for
partition was not acted upon. It held that, right to seek partition is a
substantive right.
In Tara Kishan Das V. Beharu Barman and Others (3rd cited
supra), the relevant paragraph is extracted hereunder:
5. On the face of it, the decision of the learned Subordinate
Judge is quite illegal. He appears to have ignored the position that a
right to obtain partition is a right inherent in the joint ownership of
property. It is a natural and legal incident of ownership which could
not be denied to a co-owner of the property so long as his right
subsists. The mere fact that on an earlier occasion he could not obtain
partition, is no ground for holding that the right of the co-owner to
seek partition is barred for ever. It is a continuing right which the co-
owner possesses in the lands in question; and if on account of
inconvenience or differences with the co-owner, it is not possible for
12 of 31
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him to continue in joint ownership of the property, there is no reason
why the right to seek partition should be denied to him.
6. In other words, it is open to the co-owner to ask for separate
enjoyment of his share of the property at any time he likes and the
right to partition the land cannot be refused so long as his interest in
the land is not extinguished. The proposition is too well settled to need
authorities. But I would refer to only a few of them. In T.C. Mukerji v.
Afzal Beg, ILR 37 All 155 : (AIR 1915 All 1 (2)) (A), it was pointed
out that the right to bring a suit for partition, unlike other suits, is a
continuing right incidental to the ownership of joint property and a
second suit is, therefore, not barred. Another decision to which
reference may also be made is Jagamohini Dasi v. Shiba Gopal
Banerjee, AIR 1920 Cal 108 (B), where it was again laid down that
the right to sue for partition is a continuing right and incidental to the
ownership of joint property. Therefore, so long as the property
remains joint, one of the co-owners has a good cause of action for
bringing a fresh suit for partition notwithstanding the dismissal of a
previous suit for partition.
In T.C. Mukerji V. Afzal Beg (4th cited supra), the relevant
portion is extracted hereunder:
The right to bring a suit for partition unlike other suits is a
continuing right incidental to the ownership of joint property.
In Collector Land Acquisition, Anantnag and Another V.
M/S. MST Katiji and Others (5th cited supra), the relevant portion
is extracted hereunder:
When substantial justice and technical considerations are
pitted against each other, cause of substantial justice deserves to be
preferred for the other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay.
13 of 31
NNR,J
CCCA_90_2011There is no presumption that delay is occasioned deliberately,
or on account of culpable negligence, or on account of mala fides.
16. The learned counsel for the defendants/respondents
contended that the parties are closely related, which fact is not
in dispute. It was further submitted that the parents of the
parties passed away when the plaintiff was a minor, and
defendant No.1, being the elder brother, took responsibility of
the family and performed the marriages of his siblings. It is
further argued that the plaintiff, during the course of cross-
examination, has admitted the factum of ouster from the
enjoyment of the suit schedule property and the consequent
extinguishment of her rights. In view of such admissions, it is
contended that the defendants are not required to independently
prove the said facts.
17. The respondents also contend that the plaintiff herself
admitted that defendants Nos.1 and 2 have been in continuous
possession and enjoyment of the suit schedule property as
absolute owners for more than twelve years, to her knowledge.
Despite such knowledge, the plaintiff instituted the suit only
after a lapse of about sixteen years, thereby rendering the claim
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barred by limitation. It is specifically the case of defendant No. 1
that they have been in uninterrupted, open, and exclusive
possession of the suit schedule property for more than twelve
years, asserting ownership to the knowledge of the plaintiff and
defendant No.3, and have been deriving profits therefrom.
Consequently, it is contended that the plaintiff and defendant
No.3 have been effectively ousted from the suit schedule
property for the said period.
18. Another aspect which the learned counsel for the
defendants/respondents has raised that since the demand was
made in the year 1990 and admittedly the defendants were
receiving the rents and the profits, and used by the defendants
for themselves and that too in the knowledge of the plaintiff, and
that the plaintiff never demanded for the rents cannot be a
ground for refusal of the partition. Mere collection of rent and
profits from the business, despite defendant No.1 having no
entitlement to any share in the properties, and his continued
enjoyment of rental income from the said properties since 1986.
The denial to give share in the properties in question though was
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made known to the plaintiff in the year 1986-87 itself, the
plaintiff did never raise any objection.
19. It is pertinent to mention here that admittedly defendant
Nos.1 and 2 performed the marriage of the plaintiff on
11.12.1989 and that the suit schedule property consisting of two
bedrooms and four portions of one bedroom, are let out to the
tenants. Two double bedroom portions were occupied by
defendant Nos.1 and 2 respectively. Thus, defendant Nos.1 and
2 are getting monthly rent of Rs.50,000/- from the suit schedule
property. In addition to that, there is a sufficient vacant land in
the suit schedule property which has been used for the purpose
of parking autos in the night time, for which defendant Nos.1
and 2 are collecting Rs.10/- per day for each auto. Daily about
40 autos are parked in the said site and the defendant Nos.1
and 2 are getting Rs.12,000/- per month on the vacant site. It is
admitted that the plaintiff is occupying portion of one room in
the suit schedule property where her children were using the
same while they were pursuing studies in the city.
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20. The plaintiff, even though has cross-examined DW1 at
length, but did not cross examine DW1 with regard to the
exclusion or ouster even though the same is pivotal issue raised
by defendant No.1 and specific evidence has been led in that
regard. It is further submitted that it is settled proposition of law
that, once a party put forth a specific case in his evidence, non-
cross examining him on the said specific evidence amounts to
admission of the said fact and relied upon the judgment of the
Hon’ble Supreme Court in Muddasani Venkata Narsaiah v.
Muddasani Sarojamma 6, wherein it was held as under:
Moreover, there was no effective cross-examination made on
the plaintiff’s witnesses with respect to factum of execution of sale
deed. PW.1 and PW-2 have not been cross examined as to factum of
execution of sale deed. The cross-examination is a matter of substance
not of procedure one is required to put one’s own version in cross-
examination of opponent. The effect of non cross-examination is that
the statement of witness has not been disputed. The effect of not
cross-examining the witnesses has been considered by this Court in
Bhoju Mandal &Ors. v. Debnath Bhagat&Ors, AIR 1963 SC 1906.
This Court repelled a submission on the ground that same was not put
either to the witnesses or suggested before the courts below. Party is
required to put his version to the witness. If no such questions are put
the court would presume that the witness account has been accepted as
held in M/s. Chuni Lal DwarkaNath V. Hartford Fire Insurance Co.
Ltd. 8Anr, AIR 1958 Punjab 440. In MarotiBansiTeli v. Radhabai w/o
TukaramKunbi & Ors. AIR 1945 Nagpur 60, it has been laid down
6
2016 12 SCC 288
17 of 31
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CCCA_90_2011that the matters sworn to by one party in the pleadings not challenged
either in pleadings or cross-examination by other party must be
accepted as fully established. The High Court of Calcutta in A.E.G.
Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the
party is obliged to put his case in cross-examination of witnesses of
opposite party. The rule of putting one’s version in cross-examination
is one of essential justice and not merely technical one. A Division
Bench of Nagpur High Court in KuwarlalAmritlal v. RekhlalKoduram
& Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not
specifically challenged and witness is not cross-examined regarding
details of attestation, it is sufficient for him to say that the document
was attested. If the other side wants to challenge that statement, it is
their duty, quite apart from raising it in the pleadings, to cross-
examine the witness along those lines. A Division Bench of Patna
High Court in KarnidanSarda & Anr. v. SailajakantaMitra AIR 1940
Patna 683 has laid down that it cannot be too strongly emphasized that
the system of administration of justice allows of cross-examination of
opposite party’s witnesses for the purpose of testing their evidence,
and it must be assumed that when the witnesses were not tested in
that way, their evidence is to be ordinarily accepted. In the aforesaid
circumstances, the High Court has gravely erred in law in reversing
the findings of the first Appellate Court as to the factum of execution
of the sale deed in favour of the plaintiff.
It is contended that the plaintiff has been ousted from the
enjoyment of suit schedule property for more than prescribed
period and her right to seek partition is extinguished.
21. He also pointed out that so far as the issue of limitation is
concerned, there is no limitation prescribed in Limitation Act for
filing the suit for partition. As such, the residuary Article 113 is
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made applicable. For proper appreciation the said Article is
extracted hereunder:
Any suit for which no Three years When the right to sue
Article period of limitation is accrues,
113 provided elsewhere in this
Schedule.
22. It is further argued and contended that the plaintiff ought
to have instituted the suit within three years from the date of
refusal. The evidence of PW-1 clearly indicates that, although
she had demanded partition in or around 1990-1991, no legal
action was taken within the prescribed period. She also stated
that she had demanded her share in the profits, which was
similarly refused in or about the year 1990. It is further
submitted that the plaintiff has admitted that she neither issued
any legal notice nor initiated any proceedings seeking partition
within the said period. In view of such admissions, the
respondents contend that the suit is barred by limitation.
23. The learned counsel for the defendants contended that, in
view of the applicability of Article 113 of the Limitation Act, the
present suit is barred by limitation and relied upon on the
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judgment of High Court of Andhra Pradesh in T. Bhoopal Reddy
v. K.R. Laxmi Bai 7, wherein it was held as under:
This issue was framed on the plea of the defendants that the
suit is barred by limitation. The suit was filed by the plaintiff basing
on the documents Ex A-48 dated 11-11-1967 and Ex. A-49 dated 14-
2-1981. Subsequently the plaintiff did not press the Ex. A-48. The
entire claim is on the basis of Ex. A-49. Even according to the
plaintiff, the first defendant was not inclined to give any share in the
properties and enjoying the rents in respect of the properties since
1986. As rightly observed by the trial Court, denial to give share in the
properties in question was made known to the plaintiff in the year
1986 itself and therefore the suit filed by the plaintiff in the year 1994
is hurred by limitation under Article 113 of the Limitation Act, 1961
and therefore, this issue is also answered accordingly and against the
plaintiff.
It is to contend that where a right to sue accrues, the suit must
be filed within three years from the date of such accrual. It was
argued that in the present case, the plaintiff herself admitted in
her evidence as PW1 that she demanded partition in the years
1990-1991 and that the same was refused. Therefore, according
to the defendants, the cause of action arose at that time, and the
plaintiff ought to have instituted the suit within three years
therefrom. There was continuous enjoyment of rents and profits
by defendant Nos. 1 and 2, to the exclusion of the plaintiff,
which was also emphasized to show denial of her rights.
7
2007 (3) ALD 760
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24. The learned counsel for the defendants further relied upon
the judgments of the Hon’ble Supreme Court reported in Ram
Gopal Baheti V. Giridharilal Soni and Others 8 and Krishna
Pillai Rajasekharan Nair V. Padmanabha Pillai 9 , to contend
that Article 120 (old) and new Article 113 of the Limitation Act is
applicable in a suit for partition. The relevant portion is
extracted hereunder:
In our opinion, the suit filed in the present case being a suit for
partition primarily and predominantly and the relief of redemption
having been sought for only pursuant to the direction made by the
High Court in its order of remand, the limitation for the suit would be
governed by Art. 120 of Limitation Act, 1908. For a suit for partition
the starting point of limitation is when the right to sue accrues, that is,
when the plaintiff has notice of his entitlement to partition being
denied. In such a suit, the right of the redeeming co-mortgagor would
be to resist the claim of non-redeeming co-mortgagor by pleading his
right of contribution and not to part with the property unless the non-
redeeming co-mortgagor had discharged his duty to contribution. This
equitable defense taken by the redeeming co-mortgagor in the written
statement would not convert the suit into a suit for contribution filed
by the non-redeeming co-mortgagor.
The defendants also argued that the law of limitation is
mandatory in nature based on public policy and also relied upon
Section 3 of the Limitation Act, wherein it was contended that
8
1999 (3) CCC 112
9
AIR 2004 SC 1206
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CCCA_90_2011any suit filed beyond the prescribed period must be dismissed,
and Courts have no power to extend limitation in the case of
suits.
25. Further, the appellant relied upon the judgment of Hon’ble
Supreme Court in Sunil Kumar Maity V. S.B.I. 10, wherein it
was held as under:
The National Commission therefore has grossly erred in
observing in the impugned order that the appellant-complainant would
be at liberty to seek remedy in the competent Civil Court and that if he
chooses to bring an action in a Civil Court, he is free to file an
application under Section 5 of the Limitation Act, 1963, recording the
statement of Ld. Counsel for the SBI that it will not press the issue of
limitation if action is brought by the complainant in a Civil Court.
Such an observation/order passed by the National Commission is in
utter ignorance of the provisions of the Limitation Act, in as much as
Section 5 of the Limitation Act does not apply to the institution of
civil suit in the Civil Court.
And also relied upon the judgment of Hon’ble Supreme Court in
F. Liansanga V. Union of India 11, wherein it was held as under:
15. The High Court held rightly that the Limitation Act was applicable
in the State of Mizoram and that a perusal of Section 5 of the
Limitation Act, 1963 clearly showed that Section 5 did not apply to
suits, but only to appeals and to applications except for applications
under Order XXI of the Civil Procedure Code.
10
AIR 2022 SC 577
11
AIR Online 2022 SC 450
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16. As held by this Court in PopatBahiruGovardhane & Others vs.
Special Land Acquisition Officer &Anr. reported in (2013) 10 SCC
765, on which reliance has been placed by the High Court, it is settled
law that limitation may harshly affect a particular party, but it has to
be applied with all its rigour when the statute so prescribes. The Court
has no power to extend the period of limitation on equitable grounds,
even though the statutory provision may sometimes cause hardship or
inconvenience to a particular party. The Court has no choice, but to
enforce it giving full effect to the same.
On perusal of Section 5 of the Limitation Act, it is not applicable
to suits, but only to appeals and applications except for
application under Order XXI of the Civil Procedure Code.
26. After hearing both the plaintiff and defendants the
following points that arose for consideration before this Court:
1. Whether the suit is barred by limitation?
2. Whether defendant Nos.1 and 2 have proved the factum of
adverse possession?
3. Whether the plea of ouster is proved by defendants?
4. Whether plaintiff is entitled for partition as prayed for?
27. Issues 1 to 3: It is an admitted fact that the suit schedule
property is ancestral in nature and the relationship between the
parties as siblings is undisputed. The plaintiff, being a married
daughter, was residing in her matrimonial home, while
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defendant Nos.1 and 2 remained in possession of the property
and were collecting rents and profits.
28. The contention of the defendants that the plaintiff was
ousted from possession cannot be accepted. According to law,
possession of one co-owner is deemed to be possession on behalf
of all co-owners. Mere exclusive enjoyment of the property or
receipt of rents by one co-owner does not amount to ouster,
unless there is clear denial of the rights of the other co-owners,
coupled with hostile possession. In the present case, no such
cogent evidence of ouster has been established.
29. Further, the plea of adverse possession raised by the
defendants is also unsustainable. It is a settled principle that for
claiming adverse possession, the possession must be open,
hostile, continuous, and to the knowledge of the true owner. In
cases of co-ownership, such a plea is viewed with greater
strictness, as possession by one co-owner is presumed to be on
behalf of all. The defendants have failed to establish the
necessary evidences to substantiate adverse possession.
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30. Significantly, the alleged affidavit said to have been
executed by the plaintiff relinquishing her rights does not have
any legal validity, as relinquishment of rights in immovable
property can only be effected through a duly registered
instrument. Such an affidavit, therefore, cannot extinguish the
plaintiff’s rights.
31. On the question of limitation, reliance placed by the
defendants on Article 113 is misplaced. As held by the Hon’ble
Supreme Court in Vidyadevi Alias Vidyavati V. Prem Prakash
and Others (1st cited supra), the right to sue for partition is a
continuous one, and no period of limitation is prescribed for
filing a suit for partition. The cause of action in such cases is a
continuing one, and therefore the suit cannot be dismissed as
barred by limitation merely because there was refusal earlier.
32. Moreover, the admitted fact that the plaintiff did not issue
any legal notice or take immediate action after the alleged
refusal in 1990-1991 and merely not taking any action does not
extinguish her substantive right in the joint family property. The
law recognizes that partition is an incident of co-ownership and
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can be sought at any time unless there is a clear and legally
sustainable bar.
33. Accordingly, the contention of the defendants that the suit
is barred by limitation, or that the plaintiff has been ousted or
that the defendants have perfected title by adverse possession, is
devoid of merit and cannot be sustained.
34. The contentions advanced by the defendants are threefold:
(i) ouster, (ii) adverse possession, and (iii) limitation. It is their
case that the suit is barred by limitation on the ground that the
plaintiff had allegedly demanded partition in the years 1990-
1991, which was refused by defendant Nos.1 and 2. It is further
contended that the plaintiff and defendant No.3 executed
affidavits relinquishing their respective shares in favour of
defendant Nos.1 and 2.
35. At the outset, the very plea that the plaintiff and defendant
No.3 executed affidavits would itself indicate that they had
subsisting rights in the suit property and were entitled to a
share therein. The defence of ouster, adverse possession, and
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limitation being interrelated, it is necessary to first examine
whether ouster has been established, as the burden of proving
the same squarely lies upon the defendants.
36. It is well settled that ouster does not require physical
dispossession, but must be established by clear, unequivocal,
and hostile acts demonstrating the exclusion of the co-sharer
from joint possession. To prove ouster, the essential elements
must be satisfied which are a clear declaration of hostile
animus, long and uninterrupted possession, exercise of
exclusive ownership to the knowledge of the other co-owners
and open assertion of hostile title coupled with exclusive
possession.
37. Mere non-participation in the income or profits of the
property is insufficient to establish ouster. The burden of
proving ouster rests heavily on the party asserting it. In the
present case, the defendants rely upon the alleged admission of
the plaintiff that after 1990-1991, the plaintiff did not demand
partition or issue any legal notice, and that defendant Nos.1 and
2 were enjoying the property and collecting rents. However, such
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admissions, even if accepted, do not amount to proof of ouster.
The mere fact that defendant Nos.1 and 2 were in possession
and collecting rents cannot, by itself, be construed as hostile
possession to the knowledge of the plaintiff.
38. The reliance placed by the defendants on the alleged
affidavits said to have been executed by the plaintiff and
defendant No.3 is also misplaced. Firstly, the plaintiff has denied
the execution of such affidavits. Secondly, even assuming such
affidavits exist, relinquishment of rights in immovable property
cannot be effected without a duly executed and registered
document, as required by law. Therefore, such affidavits cannot
be treated as valid documents evidencing relinquishment of
rights.
39. Another significant aspect is that defendant No.3 was
neither examined as a witness nor took steps to independently
assert or defend her rights before the Court. Nevertheless, the
failure of defendant No.3 to actively participate does not
extinguish her legal entitlement.
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40. It is an admitted position that the suit property is
ancestral in nature and belongs to the parents of the parties.
The plaintiff and defendant Nos.1, 2, and 3 being their children,
are equally entitled to shares in the property. Even the
defendants have not claimed any independent title to the
property rather they admit its ancestral character. To sustain a
plea of ouster, the defendants must establish not only exclusive
possession but also a hostile claim of title to the knowledge of
the other co-owners. In the absence of such a claim, mere
possession and collection of rents do not amount to ouster.
41. Further, the fact that the plaintiff, being a married woman,
resided at her matrimonial home and did not demand partition
for a considerable period does not constitute ouster. The law
presumes that possession of one co-sharer is possession on
behalf of all, unless a clear and hostile assertion is proved.
42. In the present case, except for the oral submission that the
plaintiff demanded partition in 1990-1991, there is no cogent
evidence on record to substantiate the same. Even otherwise,
mere inaction or delay on the part of the plaintiff does not
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establish ouster. In the absence of proof of ouster, the plea of
limitation does not arise. Consequently, the claim of adverse
possession, which is founded upon hostile possession, also fails.
Accordingly, the defences of ouster, adverse possession, and
limitation set up by the defendants are unsustainable and are
liable to be rejected.
43. Further, in view of the judgment of the Hon’ble Supreme
Court in VIDYADEVI ALIAS VIDYAVATI (1st cited supra), it is
well settled that possession by one co-sharer or co-owner is
deemed to be possession on behalf of all co-owners, even if the
others are not in actual physical possession. In the present suit,
although the defendants contend that the plaintiff had earlier
sought partition, there is no specific plea or evidence regarding
any independent claim made by defendant No.3. Merely because
the plaintiff did not take earlier steps to seek partition, the right
or entitlement of defendant No.3 to a share cannot be
extinguished. It is equally open to defendant No.3 to seek
partition. In a partition suit, all parties stand on equal footing
as that of a plaintiff. Therefore, mere failure of the plaintiff to file
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a suit for partition within a particular time cannot be a ground
to deny partition even to defendant No.3.
44. Accordingly, the contention of the defendants that the suit
is barred by limitation cannot be accepted. Likewise, their claim
that their possession has become adverse to the rights of the
plaintiff is unsustainable. Hence, issues No.1 to 3 are answered
accordingly in favour of plaintiff and against defendant Nos.1
and 2.
45. Issue No.4:-
Upon consideration of the merits of the case, and after
evaluating both oral and documentary evidence on record, this
Court is of the opinion that the plaintiff is entitled to a decree for
partition. The learned trial Court, without properly appreciating
the legal principles governing ouster and by erroneously relying
solely on limitation, dismissed the suit.
46. This Court is of the view that the findings of the trial Court
are liable to be set aside. For the aforesaid reasons, the issues
are answered in favour of the plaintiff and against the
defendants. Considering the relationship among the parties, this
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court is not intending to award any costs. Both the parties shall
bear their own cost.
47. With the aforesaid findings, this City Civil Court Appeal is
allowed setting aside the Judgment and Decree, dated
18.01.2011 passed in OS No.588 of 2006 by the learned II
Additional Chief Judge, City Civil Court, Hyderabad.
Consequently, the suit is decreed, passing a preliminary decree
thereby partitioning the suit schedule property into four equal
shares and allotting the 1/4th share of the suit schedule
property to the plaintiff by metes and bounds and separate
possession of the same. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending,
shall stand closed.
________________________________________________
JUSTICE NARSING RAO NANDIKONDA
Date: 24.03.2026.
vjb
