P L D 1962 Dacca 683 (PLP)

9. Mr. Roy then contends that as the plaintiffs claim to have been in possession of the disputed property on the basis of purchase in the auction sale, they cannot be classed as co‑sharers for the purpose of attracting the principle of ouster. In this connection the learned Advocate has relied on the Full Bench decision in the case of Bhavrao and others v. Rakhmin and others (I L R 23 Bom. 137), wherein it was held as follows: ‑ "Where co‑parceners have alienated their shares in the joint property by sale and mortgage, and the alienees have been in possession for more than twelve years, a claim for partition is, as against such alienees, barred by limitation under Article 144 of the Limitation Act (XV of 1877)." According to the learned Judges who decided the case the provi sions of Article 127 of the Limitation Act was not applicable to a case where the person in possession was a transferee from a co -sharer. This view also found favour with a Division Bench of the Madras High Court in the case of Sowdagar Sheik Abdul Gafur and others v. Ashamath Bibi and others (54 I C 385). I may mention here that the learned Judge in this case did not give any reasoning of their apart from relying on the Full Bench decision of the Bombay High Court and two other decisions mentioned in the judgment.

10. The question whether for a transferee from a co‑sharer it is necessary to establish ouster in order to extinguish the interest of another person who has a share in the disputed property came up for consideration before the Division Bench of the Oudh Chief Court in the case of Halim Shah and others v. Rahim Bux and others (A I R 1930 Oudh 475). The learned Judges on a thorough discussion of the Bombay case and the Madras case relied upon by Mr. Roy and some other decisions to the contrary took a different view. It was observed in that case "In Bhavrao v. Rakhmin, it was held that Article 127, Schedule 2 Limitation Act (15 of 1877), does not apply except in cases of members of a joint family and that where an alienee from a co‑parcener had been in possession for over 12 years, a claim for partition against such alienee would be barred by limitation under Article 144, Limitation Act. We can unhesita tingly agree with the opinion of their Lordships of the Bombay High Court to the effect that the possession of the alienees must be regarded as adverse to their alienors. We can also understand the position that in the case of a Hindu co‑parcenary the possession of an alienee who is a complete stranger may be treated as adverse to the other co‑parceners. There in one place their Lordships remarked as follows: "The inconvenience of a contrary ruling to that which we have expressed is shown by the practice which prevails in the Ratnagiri District from which these appeals come." "This shows that their Lordships' view was also influenced to some extent by local considerations. Under the circum stances we think that this case also is distinguishable and find ourselves unable to regard it as an authority for treating the possession of a transferee from a tenant in common as adverse to the other co‑tenants. This case has been followed by a Bench of the Madras High Court in Abdul Gafur v. Ashmath Bibi and by a single judge of the Lahore High Court in Anwar v. Kishen Singh A 1 R 1922 Lah.

205. We have been unable to discover in either of these decisions any reasoned arguments justifying the extension of the principle enunciated in Bhavrao v. Rakhman, to the case of co‑tenants.

11. On the contrary there are numerous decisions to be found in the reports in which a transferee from a co‑tenant has been treated on the same footing as the original tenant, in the B matter of the rules governing relations between tenants‑in- common. In Robert Watson & Co. v. Ram Chand Dutta (18 Cal. 10), the rule that one tenant in common cannot be restrained from cultivating a portion of the land not actually used by another, was applied to the transferees. In Luchmeswar Singh Bahadur v. Manowar Hossain (19 Cal. 255), Lord Hobhouse, in the course of his judgment observed as follows "The Subordinate Judge quotes a passage from a decision in the case of Mahomed Ali Khan v. Khafa Abdul Gunny 9 Cal. 744 in which Wilson, J., points out that many acts which would be clearly adverse and might amount to dispossession as between a stranger and the true owner of land, would between joint owners naturally bear a different construction. Whether the facts found in this case would be as between strangers, raise the inference of adverse possession, or of enjoyment of the ferry as an easement and as of right, is a question, which need not be discussed. For the parties are co‑owners, and the defendant has made a use ‑of the joint property in away quite consistent with the continuance of the joint ownership and possession."

12. This was a case of a purchaser from a co‑sharer and the observations of their Lordships quoted above leave no doubt that for the application of these principles a transferee cannot be treated upon a different footing from the transferor. In Sheoraz v. Ajudhiya (A I R 1929 Oudh 284), a Bench of this Court consisting of Wazir Hasan, Ag. C. J., and Pullan, J., remarked as follows: ‑ "The lower appellate Court has pointed out that the appellants or their predecessor‑in‑title in whose names the sale deed was executed were themselves co‑sharers in the mahals in suit in their own right even before the sale‑deed was executed. As co‑sharers they were entitled to possession of the property and failing definite evidence that they asserted a different title than that of co‑sharers after execution of their sale deed, we are not prepared to find that their possession becomes adverse against the other co‑sharers."

13. This is a case directly in point. The rule that the possession of a co‑sharer is presumed to be non‑adverse against A the other co‑sharers was applied to the transferees. Bashir Ahmad v. Parshotam (A I R 1929 Oudh 337) is another case of this Court decided by the late Misra, J., which affords another instance in support of the same view. We might also refer to two cases, one decided by the Calcutta High Court and the other by the Madras High Court, which support the point taken by us. In Jogendra v. Rajendra (A I R 1922 Cal. 54), it was held that: "to prove dispossession of one co‑sharer by another it must be shown that there was exclusion or ouster to the knowledge of the former, and this principle is applicable to all cases of co‑owners and is not confined to cases where the co‑owners were persons who at one time formed members of a family." Similarly in Venkatarama v. Subramania (A I R 1924 Mad. 741), it was decided that "possession by one owner is not ordinarily adverse to the other co‑owners. Not only possession by one co‑owner, but also exclusion of the others or a denial of their title to their knowledge is essential to render such possession adverse. The same principle is applicable to the cases of transferee from one of several co‑owners. Where he prescribes as a co‑sharer he must prove exclusion or denial of title as against the other co‑sharers."

14. This view of the Oudh Chief Court was accepted by Sulaiman, J., of the Allahabad High Court in A I R 1932 All. 393 when an appeal came to him for decision after two of the Judges of the said High Court had differed with regard to this point in connection with a second appeal. The learned Judge in considering this question observed as follows: "The question in the present case is whether the same principle can be extended to a transferee from a co‑owner who professedly takes a transfer of the whole property. There is some conflict of judicial opinion on this question. In Abdul Gafur v. Ashmat Bibi, a Bench of the Madras High Court held that the entry of an alienee from a co‑transferee into the property alienated is adverse to the co‑transferees from the very moment of that entry. Reliance was mainly placed on certain previous rulings without examining the question afresh. This case was followed by single Judge of the Lahore High Court in the cases of Anwar v. Kishan Singh and Ibrahim v. Ali Mohammad A I R 1930 Lah. 214 and by a learned Judge of the Rangoon High Court in the case of Maung Tun U. v. Maung Tun Aung A I R 1928 Rang.

158. In the case of Hafiz Abdulla v. Alli A I R 1923 All. 291, a Bench of this Court held that the mere possession of a house by the brothers or the possession of a mortgagee from them would not amount to adverse possession, unless there was what may be deemed to be an ouster of the plaintiffs or their predecessor Maula Baksh. In that case it was found that the two brothers mortgaged the whole house to the mortgagee who remained in possession and it was held that from that fact alone it could not be concluded that the plaintiffs had been ousted from the house. The case however, was peculiar inas much as the mortgage had been redeemed, and the brothers who had made the mortgage had taken back possession by the time the suit was instituted. They were asserting their own adverse possession and wanted to count the period of occupation by their mortgagee. This case has been followed in the case of Vaiyapuri Chettiar v. Subramania Chettiar A I R 1929 Mad. 27 and Ghulam Muhammad v. Mst. Begum A I R 1930 Lah. 251."

15. On behalf of the respondents reliance has also been placed in the case of Krishan Chandra Das v. Purna Chandra Das and others (A I R 1935 Cal. 195), where Nasim A, I, J held: "Where a co‑sharer enters into possession of the share of the other, not in his right as a co‑tenant but in denial of such right of the co‑tenant, it cannot be said that his possession would ensure for the benefit of the other co -sharers whom he has excluded from the enjoyment of the property." It may be mentioned that the learned Judge restored the decree passed by the trial Court after reversing the decree of the lower appellate Court and it is clear from the facts of this case that the learned Munsif came to certain definite findings which would amount to a clear case of establishment of ouster and in that view of the matter I am not prepared to agree with the learned advocate for the respondents That this case is also an authority for the proposition contended for by him on a very careful reading of the Full Bench decision of the Bombay High Court as well ns the decisions of Oudh Chief Court and of the Allahabad High Court by Sulaiman, J., I am of the view that the question has been rightly decided by the Oudh Chief Court and the Allahabad High Court. There is no reason for me to think that the case of a transferee from a co‑sharer can be placed on a different footing than the co‑sharer himself in this regard. As has been very rightly pointed out by Sulaiman, J., in the Allahabad case that if the principle governing the possession by co‑owners should not be applied to transferees from co‑owners the same legal position would arise in the case of the heirs of a co‑owner who had asserted his adverse possession before his death. The underlying principle, which must not be forgotten is that the possession by a co‑owner of the entire joint property is perfectly lawful as he has title not only to his undivided share but to the whole of the property and has possession of the whole property as well as of every undivided part. There is no bar for an owner of an undivided share of a property to be in possession of the whole of that property, but his possession on the basis of legal title cannot be adverse to the other co‑sharers. In view of the above, I am constrained to hold that the learned Judge was not right in holding that the interest of Kalachand was extinguished by the adverse possession of the plaintiff's.

16. The result, therefore, is that this appeal is allowed in part. The judgment and decree of the learned Subordinate Judge is modified to the extent that the declaration given in the favour of the plaintiffs in respect of 16 annas share in the disputed property is modified and it is declared that they have only 5/6th interest in the disputed property and the remaining 1/6th share belongs to defendants Nos. 1, 8, 9 and

10. The plaintiffs are, therefore, given a decree for declaration to the extent of 5/6th share in the disputed property and they will get joint possession with defen dants Nos. 1, 8, 9 and

10. As the success in this appeal has been divided. I think each party should bear its own costs. S. B./A. H. Order accordingly.