What is ejmali property?

It appears from the Plaint, written statement and evidence on record that the suit properties are ejmali properties. Where a co-sharer in ejmali property, when he has been in exclusive possession of a specific and separate share thereof demarcated by. It is, also stated that the income from all the properties standing in the names of defendants Nos. Gouri Prasad Sarkar died about 60 years back leaving behind little properties. Results 21 - 40 of 292 · The plaintiffs may have recourse to legal measures before the appropriate Court for partition of ejmali property if their claim is not. landed properties left by their father, as he has taken cash amount from the.

The term “adverse possession” in common parlance refers to a legal principle that grants title to someone who resides on or is in possession of another person’s land. The property’s title is granted to the possessor as long as certain conditions are met including whether they infringe on the rights of the actual owner and whether they are in continuous possession of the property. Adverse possession is sometimes called squatter’s rights, although squatter’s rights are a colloquial reference to the idea rather than a recorded law.

Several questions are raised by an owner of the property like if a person has purchased a property for investment and if someone takes possession of it, what will be the legal rights of the owner? Will the Court provide the remedy to a person who is the owner of the property for eg. a house on which some other person has claimed his right to adverse possession? How to get the occupied property vacated in one day? All the above questions are answered in the Landmark judgment of the Supreme Court in Poona Ram vs. Moti Ram (D) Th. Lrs. on 29.01.2019

Landmark Judgement in Poona Ram vs. Moti Ram (D) Th. Lrs. on 29.01.2019

Brief facts of the Case

Moti Ram had filed a suit over an immovable property over which he claimed the possessory title, which seemed merely based on his prior possession of the property for several years. However, Moti Ram had no documents to evidence his possession of the same. Poona Ram submitted his title deeds to the suit property, having thus claimed a better title to the suit property. The Trial Court decreed the suit in favour of Moti Ram, but the First Appellate Court reversed the order of the Trial Court and held that Poona Ram in lieu of title deeds had proved his title over the suit property in question. However, in the Second Appeal, the High Court of Rajasthan restored the order of the Trial Court and observed that Poona Ram was not able to prove his title over the property on two grounds:

Final Judgement

The Hon’ble Supreme Court in the judgment observed that a person who asserts possessory title over a particular property will have to show he is under settled or established possession of the said property. Therefore, the Supreme Court, in the present case in light of the above submission had to observe whether Moti Ram had better title over the suit property and whether he was in settled possession of the property, which required dispossession as per law.

The Hon’ble Court, while addressing the stance under Section 64 of the Limitation Act, wherein a suit for possession of immoveable property based on previous possession and not on title, if brought within 12 years from the date of dispossession, opined that such a suit is based on possessory title as opposed to proprietary possession has also elaborated on the term “settled possession” holding that such possession over the property which has existed for a long period and such effective possession of a person without a title would entitle him to protect his possession, similar to that of a true owner.

The Hon’ble Supreme Court discussed the above issue by relying upon the following landmark judgments:

In Nair Service Society Ltd vs. K.C Alexander, AIR 1968 SC 1165, wherein the Court held that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except for the rightful owner. In such a case, the defendant must show in himself, or his predecessor a valid legal title and probable possession before the plaintiff’s possession, and thus be able to raise a presumption prior in time.

The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession that has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be effective, undisturbed, and to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of the case

The Supreme Court has also observed in this matter that Moti Ram as rightly observed by the First Appellate Court has not been able to prove with any documentary evidence that he was in actual possession of the suit property much less continuous possession. Actual Possession is “having physical control of any object or real property”. Therefore, it is clear that for the establishment of possessory title over the property, it is fundamental to establish the act of actual possession over the suit property, and thereafter the plea of continuous possession can be claimed to further the cause of the possessory title.

The Supreme Court rightly overruled the judgment of the High Court of Rajasthan for the fact that the Defendant had not made a strong case of possession merely based on the right of casual possession as no documentary evidence was advanced to prove that he may have been in actual and continuous possession of the suit property. Further, the owner has a right to claim back the possession with the use of reasonable force.

Conclusion

Illegal adverse possessions are claimed by people only based on the fact that they are in possession of the property of others for so many years and they take advantage of the same to infringe the rights of the original owner. But the Hon’ble Supreme Court mentioned that if a person has legal documents of ownership or has filed any complaint or issued a notice against the illegal possessor of the owned property or any person who is claiming adverse possession but is not in continuous possession of the property then a rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.

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JUDGMENT S.C. Lahiri, J.

1. This Rule has been obtained by the plaintiff in a suit for partition against an order of the Subordinate Judge, First Court, Alipore, dated 19-6-1956, by which the learned Judge directed the plaintiff to pay ad valorem Court-fees upon certain properties included in the schedule to the plaint.

2. Briefly stated, the plaintiff's case in the plaint is that the plaintiff and the defendant No. 1 are two brothers having equal shares in all the joint family properties. Defendants Nos. 2 to 8 have been impleaded in the suit on the ground that certain properties which were claimed by the plaintiff as joint family properties stand in their names. Defendant No. 2 is the wife of defendant No. 1. Defendant No. 3 is the son of defendant No. 1. Defendant No. 4 is the wife of defendant No. 3 and defendant No. 5 is the widow of a predeceased son of the plaintiff. Defendant No. 6 is a private tutor of the family. Defendant No. 7 is a pleader of the Alipur Court and defendant No. 8 is a relation of defendant No. 1 by marriage. In paragraph 4 of the plaint, the plaintiff states that although defendants Nos. 2 to 8 are ostensible owners of the properties standing in their names, all these properties were acquired with joint family funds, and these defendants are, in fact, mere Benamidars of the joint family. It is, also stated that the income from all the properties standing in the names of defendants Nos. 2 to 8 is brought into the common till and entered in the Ejmali Rokar. In paragraph 6 the plaintiff states that out of the Ejmali funds defendant No. 1 gives the plaintiff a monthly allowance which is hardly sufficient for his maintenance. The plaintiff further alleges that originally the plaintiff himself was the manager at the joint family properties, but after the death of his only son and after the death of his wife the management of the properties was taken over by defendant No. 1. There are also various other allegations in the plaint about the various acts of mismanagement by defendant No. 1. Those allegations are not strictly speaking necessary in a suit for partition. The plaint is unnecessarily prolix, but it contains essential averments that the properties claimed by the plaintiff as joint family properties were acquired with joint family funds and the further averment that the plaintiff is in receipt of a share of the income of all the joint family properties.

3. The learned Subordinate Judge has held that since the plaintiff has included in this suit properties standing in the names of strangers, and since the plaintiff wants an adjudication of title as against strangers to the family, he must pay ad valorem Court-fees in respect of the properties, which, according to the allegations in the plaint, stand in the names of strangers. In coming to conclusion, the learned Subordinate Judge has followed a judgment of this Court in Gagan Chandra v. Surendra Nath, (A), and also a decision of the Patna High Court in Kaulasan v. Ramdnt Singh, ILR 29 Pat 219: (AIR 1951 Pat 633) (B). In Nilmoni v. Upendra, (C). Guha J., and myself had an occasion to consider the correctness of the aforesaid decisions in view of the introduction of Clause (V-A) to Article 17 of Schedule II of the Court-fees Act following the Bengal Amendment of the Court-fees Act by Bengal Act VII of 1935. I am glad to have this opportunity of further explaining the view which I expressed in the aforesaid decision.

4. Mr. Mukherjee appearing for the petitioner has contended that the present case should also be governed by Schedule II, Article 17," Clause (V-A) of the Court-fees Act, and therefore, the plaintiff is entitled to maintain the suit with a fixed Court-fee of Rs. 15/-, as provided for in that clause. Mr. Mukherjee further contends that the present case is to be governed by the principles laid down in (C).

5. There are two provisions in the Court-fees Act which apply to suits for partition. The first provision is in Schedule II, Article 17, Clause (V-A) which runs as follows, "Plaint or memorandum of appeal in each of the following suits, .... .... .... ....

V-A. for partition and separate possession of a share of joint family property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff is in possession of the property of which he claims to be a co-parcener or co-owner -- a fixed Court-fee of Rs. 15/-."

The second provision in the Court-fees Act about partition suit is in Section 7, paragraph (VI-A) which runs as follows:

"In suits for partition and separate possession of a share of joint family property or of joint property or to enforce a right to a share in any property on the ground that it is joint family property or joint property-

if the plaintiff has been excluded from possession of the property of which he claims to be coparcener or co-owner -- according to the market value of the share in respect of which the suit is instituted."

These two provisions envisage four kinds of suits -- (a) suit for partition and separate possession of a share of joint family property; (b) partition and separate possession of a share of joint property; (c) to enforce a right to a share in any property on the ground that it is joint family property; and (d) to enforce a right to a share in any property on the ground that it is joint property. A suit for partition may come under any one of these four classes, or it may be a combination of any two or more of them. A suit to enforce a right to a share in any property on the ground that it is joint family property or joint property, in my opinion, connotes some thing more than a mere suit for partition and separate possession of joint family property or joint property. The adjectival phrase "to enforce a right to a share in any property on the ground that it is joint family property or joint property" entitles the plaintiff to ask for an adjudication of title. The question is whether that adjudication of title should be confined to cases where the property stands in the name of a near relation of the family, e. g.. a wife, a son, or a grandson, or whether that adjudication can also be claimed against any person even though he is not related to the joint family in any way.

6. In (A), Sen and Chunder JJ., took the view that the plaintiff is entitled to ask for such an adjudication of title on a fixed Court-fee of Rs. 15/- only when the property stands in the name of a near relation, but the plaintiff has to pay ad valorem Court-fees if the property stands in the name of a stranger. It does not appear from the report that the attention of their Lordships was drawn to the provisions of Clause (V-A) of Article 17 of Schedule II of the Court-fees Act.

Upon the language of that clause, I find no justification for this distinction. If the other conditions of Clause (V-A) are fulfilled, it does not, in my opinion, make any difference whether the property stands in the name of a near relation or a stranger.

7. Mr. Sanyal appearing for the opposite party in this case has invited us to put a narrow construction upon the words "enforce a right to a share in any property on the ground that it is joint family property or joint property" and to hold that this clause applies only to a case where the properties in respect of which partition is sought is admittedly joint or stand in the names of co-sharers. I am unable to accept this narrow interpretation of this clause. "To enforce a right to a share in any property" in my opinion means to enforce a right to a share in a property which stands in the names of others, including strangers. All that is necessary to attract the operation of this clause is that the plaintiff should seek to enforce a right to a share in that property on the ground that it is joint family property and that he is in possession. I have already stated that in paragraph 4 of the plaint in the present case, the plaintiff has stated that although some of the properties mentioned in the schedule ostensibly stand in the names of defendants Nos. 2 to 8, all of them were acquired with joint family funds and that the income of these properties are entered in the Ejmali Rokar Book. This, in my opinion, is sufficient to attract the operation of the provision that this is a suit to enforce a right to a share in a property on the ground that it is joint family property.

8. The next question is whether the plaintiff in the present case has alleged in the plaint that he is in possession of the joint property. I have already said that in paragraph 6 the plaintiff alleges that he is in receipt of the income of the joint family property though he alleges that he does not get his share. This is sufficient to bring the case within the purview of Clause (V-A). The averment is that the plaintiff is in possession of the property of which he claims to be a co-sharer.

9. Mr. Sanyal appearing for the opposite party has also contended that if a property stands in the name of a co-sharer, there is a presumption of jointness, but if it stands in the name of a stranger, there is no such presumption, and the ordinary rule of law to the effect that the ostensible is the real owner will apply. That is undoubtedly true. The onus is certainly upon the plaintiff to show that the properties which stand in the name of strangers were, in fact, acquired with joint family funds, and the onus is also upon the plaintiff to prove that the income of those properties are brought into the common till out of which the plaintiff receives his allowance. If the plaintiff fails to prove these allegations made in paragraphs 4 and 6 of the plaint his suit will fail to that extent, but upon the averments in the plaint, as it now stands, I am not prepared to hold that the plaintiff is not in possession of the properties of which he claims to be a co-sharer. If the property is in the possession of a co-sharer the plaintiff should be deemed to be in constructive possession of the property through his co-sharer, but if it is in the possession of a stranger, that principle will not apply, and the plaintiff should be deemed to have been excluded from possession of those properties, and the case will come under Section 7(vi-A) of the Court-fees Act.

10. The distinction between Schedule II, Article 17, Clause (V-A) and Section 7(vi-A) does not turn on the question who is the ostensible owner, or whether the ostensible owner is a member of the family or a stranger, but on the question whether upon the averments in the plaint, the plaintiff is in possession of the properties of which he claims to be a co-sharer. If he is, Schedule II, Article 17, Clause (V-A) will apply. If he is not, Section 7(vi-A) will apply. But at this stage, the matter must be decided upon the plaint. The plaintiff takes the risk of going to trial upon the averment that he is in possession, not only in respect of Ejmali properties, but also of properties which stand in the names of strangers. If he proves these allegations, he succeeds in the suit. If, however, he fails to prove these allegations, the suit is liable to be dismissed to the extent to which the plaintiff fails to prove his allegations.

11. Upon a consideration of the relevant paragraphs of the plaint, I have no doubt in my mind that the plaintiff has fulfilled all the requirements enumerated in Schedule II, Article 17, Clause (V-A) of the Court-fees Act, and the learned Subordinate Judge was wrong in directing the plaintiff to pay ad valorem Court-fees in respect of the properties which stand in the names of strangers. With regard to the Patna case relied upon by the learned Subordinate Judge and also the Allahabad decision relied upon by him, I have pointed out in Nilmoni v. Upendra (C), (supra) that the provisions of the Court-fees Act are different in West Bengal from the provisions prevailing in Bihar and Uttar Pradesh. In the State of West Bengal litigants are governed by Clause (V-A) of Article 17, Schedule II, but in Bihar there is no such clause in Article 17 of Schedule II."

12. For the reasons given above, I would make the Rule absolute and direct that the order of the learned Subordinate Judge be set aside and that the suit do proceed upon the Court-fees already paid by the plaintiff.