P L D 1967 Dacca 811 (PLP)

The Suit was contested by the defendant No. 1 alone. He contended, inter alia that Hadi Sheikh predeceased his mother Rupi Khatun and that the gift in favour of Hadi Sheikh as alleged in the plaint was not true. For the reasons already stated these questions do no longer arise for consideration. The contesting defendant's main contention was that that the Suit is barred by limitation and that the plaintiff's title to the suit lands was extin guished by adverse possession. Having regard to the evidence on record, the trial Court answered the issue with regard to limitation and adverse possession in favour of the plaintiffs. Accordingly, that Court passed a preliminary decree for partition in plaintiff's favour and directed to give them a separate allotment in respect of their 4 annas, 6 gandas, 2 karas and 2 krants share. This decree was reversed on appeal on the finding that the plaintiff's title was lost by adverse possession and limitation. With regard to adverse possession, the case made out in the written statement is that after the death of Hadi Sheikh, the heirs of Meher Sardar including the contesting defendant No. 1 drove away the heirs of Hadi Sheikh some 34 or 35 years ago after denying their title to the lands in suit. The further case made out in the written statement in this regard is that sometime after they had been driven out, the plaintiff No. 1 Naimuddin came back to exercise acts of possession, but he was resisted by the defendants whereupon Naimuddin brought a Criminal Case against the defendant No. 1 and others, but it ended in failure. Accordingly, the defendant's contention is that the heirs of Hadi Sheikh, that is, the plaintiffs having been kept out of possession of the suit lands for over the statutory period, their title to those lands became extinguished. The trial Court disbelieved the above overt acts as alleged in defence, but the lower appellate Court accepted them as true and held that by such overt acts the defendant No. 1 kept the plaintiffs out of possession for over 30 years after denying their title and as such their title was lost by adverse possession, Mr. B. N. Choudhoury, the learned Advocate for the appel lants submit that the findings of the lower appellate Court are based on mistaken assumptions and that the judgment of that Court is not a proper judgment of reversal. The learned Advocate has contended that the lower appellate Court did not at all examine the evidence of D. Ws. 2. to 6, but erroneously assumed that the evidence of those witnesses supported the evidence of the contesting defendant (D. W. 1) with regard to the alleged ouster of the heirs of Hadi Sheikh. In other words, his grievance is that while the trial Court discredited the evidence of the defence witnesses after proper examination of their evidence, the lower appellate Court, without at all discussing the evidence of D. Ws. 2 to 6, surmised that their evidence supported the evidence of the defendant No.

1. This grievance of the learned Advocate does not appear to be unfounded. The defendant No. 1, as D. W. 1, stated that after the death of Hadi Sheikh, he drove away his widow and children about 32 or 33 years ago after denying their title to the lands in suit and this was witnessed by Abdul Khaleque, Kefayetullah, Ahmedullah, Faizuddin, Rahmat and Hedayet. None of these persons except Rahmat was examined as a defence witness in this case. This Rahmat who was examined as D. W. 2 stated in examination‑in‑chief. "After Hadi's death his wife and children remained in Sheikhbar's homestead and therefrom they went to his wife's father's homestead. She went (home) as she became widow with children." This evidence of D. W. 2 which is apparently against the alleged ouster of the heirs of Hadi Sheikh weighed with the trial Court, but the same, as rightly pointed out by Mr. B. N. Choudhoury was not adverted to and considered by the lower appellate Court. The lower appellate Court, without analysing the evidence of D. Ws. 2 to 6, abruptly stated. "D. W. 1, received support from the evidence of D. Ws. 2 to 6." As regards the evidence of D. Ws: 3 to 6, Mr. B. N. Choudhoury contends that even their evidence is not really in support of the evidence of defendant No. 1 as supposed by the lower appellate Court. Mr. B. N. Choudhoury again rightly points out that the D. Ws. 5 and 6 did not say anything about the alleged ouster of the heirs of Hadi Sheikh after his death, and D. W. 3, as admitted by him in cross‑examination, was not present when the heirs of Hadi Sheikh were alleged to have been driven out. The further grievance of Mr. B. N. Choudhoury is that while the trial Court maintained that the plaintiff No. 1 Naimuddin's alleged subsequent unsuccessful attempt to possess a parcel of land was not for and on behalf of his mother and the other plaintiffs of this suit, the lower appellate Court did not advert to this reasoning of the trial Court and erroneously assumed that the alleged obstruction to Naimuddin's possession was an obstruction to the possession of the other plaintiffs. It appears that this aspect of the matter was not specifically considered by the lower Court of appeal below. Mr. Choudhoury next submits that the trial Court gave no importance to the order‑sheet of the Criminal Case‑Exh. `A' for reasons stated by that Court, but the lower appellate Court without adverting to the reasons given by the Trial Court, relied on the said order‑sheet in support of its findings. This contention also does not appear to be unfounded, for, the lower appellate Court did not indeed advert to the trial Court's reasons against the evidentiary value of the said order‑sheet. Although we are not prepared to express any opinion as to whether or not the evidence of the D. Ws. 2 to 6 and the order‑sheet Exh. A are in support of the alleged adverse possession, we cannot help observing that the findings of the lower appellate Court were arrived at without analysing the evidence o; the D. Ws. 2 to 6 and adverting to the reasons given by the trial Court. We, therefore, think it necessary to remand the case for rehearing the appeal according to law. What constitutes adverse possession of one co‑sharer against another is well‑settled by many a decision of "Supreme Court. The settled law is that a co‑sharer's possession is presumed to be the possession under the joint title unless the contrary is established and that there can be no adverse possession by one cu‑sharer as against other co‑sharer until there is ouster or exclusion of the other co‑sharers by overt acts to their knowledge. The principle of law re‑stated in this regard in a recent decision of this Court in the Case of Jogendra v. Arjun (1965 P L R 15 Dacca 177) is ; "that among co‑sharers themselves the general principle is that possession of one co‑owner is the possession of all or on behalf of the co‑owner and if any co‑owner claims adverse possession, he must assert his title notoriously and unequivocally in such a way that the other co‑owner against whom he claims adverse possession may know it. Mere possession, however long it may be, cannot be construed as adverse possession against another co‑sharer." The appeal should be heard afresh having regard to the state of law stated above. In the result, we allow the appeal, set aside the judgment and decree of the lower appellate Court and remand this case to that Court for re‑hearing the appeal according to law. We leave the parties to bear their own costs. MAKSUM‑UL‑HAKIM, J.‑I agree. K. B. A. Appeal accepted.