IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 512 of 1998 Decided on: December 12, 2008. Chamari & Anr. Appellants-plaintiffs Vs. Bangali & Ors. Respondents-defendants Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ashwani K. Sharma, Advocate. For the Respondent : Mr. Tarun Vaid, Advocate. No. 1. Per Surjit Singh, Judge (oral) Present Regular Second Appeal was admitted on the following substantial questions of law, vide order dated 4.5.2008:- 1. Whether the relinquishment of rights over the property by a co-sharer and subsequent possession of other co-sharers in hostility for a period of nearly 40 years amounts to adverse possession? 2. What is the effect of not claiming possession over the property by a party even after alleged purchase of the land through sale deed more than 30 years back and when other party continued in possession and claims ouster? 2. I have heard the learned counsel for the parties and gone through the record. Relevant facts may be noticed. 3. Plaintiffs-appellants and proforma defendants alongwith one Achhari, now deceased, were the joint owners in possession of the suit property. Achhari had 1/2 share in the Whether reporters of the local papers may be allowed to see the judgment? …2… suit property. She sold her 1/2 share in the suit property in favour of one Dhanesharu, some time in the year 1960, vide mutation No. 77, dated 16.11.1960. Dhanesharu was succeeded by one Moti, who further sold the aforesaid share of Achhari, (purchased by Dhanesharu) in favour of defendant No. 1, Bangali and the mutation to this effect was entered and attested in the year 1964. Plaintiffs claim that they had been in possession of the suit land continuously, peacefully, without any interruption for more than 40 years and had thereby acquired title by way of prescription. Two courts below turned down the plaintiffs-appellants’ plea and dismissed the suit. 4. It has been submitted by the learned counsel, representing appellants, that initially Achhari had relinquished her share in favour of the plaintiff and proforma defendants about 40 years, prior to the institution of the suit and thereafter, she sold her share to Dhanesharu. No such plea is there in the plaint and therefore, counsel for the appellants cannot be heard to say at the stage of second appeal that Achhari had relinquished her share in favour of the plaintiffs and proforma defendants. Hence, the first substantial question of law is answered against the appellants. 5. As regards the second substantial question of law, on which the appeal had been admitted, admittedly, Achhari and the vendee from her namely Shri Dhanesharu and the subsequent vendee from Dhanesharu’s successor Moti, namely defendant No. 1 Bangali, purchased the share of Achhari. That …3… means they became co-sharers with the plaintiffs and proforma defendants. A person claiming adverse possession against a co- sharer has to specifically plead and prove the ouster of co- sharer(s) against which plea of adverse possession is set up. This is so because a co-sharer, in exclusives possession, holds the possession not only for himself but also for and on behalf of his co-sharers (out of possession), as their agent. And an agent to succeed in his plea of adverse possession has to plead and prove that at any given point of time, beyond the period of 12 years, he had disclaimed the right of his principal and set up the adverse title in himself and such disclaimer was made to the knowledge of the principal, out of possession. Plaintiffs did not raise the plea of ouster or disclaimer nor did they lead any evidence. They simply alleged and tried to show that they had been in exclusive possession and their possession was un- interrupted. Hence, the second substantial question of law is also answered against the appellants. 6. For the foregoing reasons, the appeal is dismissed. December 12, 2008(vs) (Surjit Singh), J.