P L D 1964 Dacca 498 (PLP)

5. The trial Court decreed the suit holding that as the share of Kalachand ultimately came to be owned and claimed by Ishwar and Arjoon the original mortgagor of the property they or their heirs could not claim any share in the disputed property in equity as they were estopped to claim that share. This finding is presum ably based on the provision of section 43 of the Transfer of Property Act.

6. On appeal, the learned Subordinate Judge though agreed with the findings of the trial Court that Kalachand was not deaf and dumb, could not agree with the trial Court that the defendants were estopped from claiming the property as that of Kalachand in the absence of any finding of fraudulent or erroneous mis representation by the mortgagor to the mortgagee. The lower appellate Court, however, affirmed the decree of the trial Court on the finding that the plaintiff mortgagee auction purchaser was in exclusive possession of the disputed land on the basis of their auction purchased right openly continuously over twelve years and thereby acquired a title by adverse possession in the disputed land and the defendants title, if any, was extinguished by adverse possession of the plaintiff's.

7. In the Second Appeal this finding of the learned Subordinate Judge was challenged on the basis that if Kalachand inherited 1/6th share and the plaintiffs by their auction purchase could not acquire 16 annas title in the auction sold land, they consequently became co‑sharer of Kalachand by auction purchase and the possession of a co‑sharer over a long time cannot be adverse against another co‑sharer in the absence of evidence of ouster, namely, possession in assertion of hostile title in denial of the title of the rightful owner. This contention of the learned Advocate for the defendants‑appellants was accepted by the learned Judge of this Court in Second Appeal and the learned Single Judge modified the decree of the lower appellate Court declaring 5/6th share of the plaintiffs in the disputed property directing joint possession with defendants Nos. 1, 8, 9 and

10. Hence this appeal under Clause 15 of the Letters Patent.

8. Now, the only question raised before us for consideration is whether in the facts and circumstances of the case, the plaintiffs by their auction purchase became a co‑sharer of Kalachand or his heirs and their possession of co‑sharer. It may be mentioned that one of the witnesses admitted that Kalachand died ten or twelve years ago which comes to 1946‑47.

9. The mortgage bond is not before us. But the preliminary decree Exh. 2 and the final decree Exh. 2 (A) obtained on the mortgage bond and the sale certificate Exh. 6 describes the mort gaged land as "The mortgaged land is the land which was inherited by the respondents in their right of receiving rent." The plaintiffs, as we have stated above, took delivery of possession of the property purchased in execution of the mortgage decree on 30‑3‑1936 (Exh. 7) and both the Courts below have found that since the delivery of possession the plaintiffs were in possession of the entire disputed property. They never claimed to be a co‑sharer of anybody in the disputed land. They possessed the land on the basis of the sale certificate exclusively, that is, in exclusion of others and also in denial of the title of anybody as apparent from the sale certificate Exh.

6. It may transpire now, in view of the findings of the Courts below that Kalachand was not deaf and dumb and as such was entitled to inherit a share in the paternal property, that there is a defect in the title of the plaintiffs to the extent of that share, namely, 1/6th in the mortgage property. To that extent in law, the plaintiffs title may be defective ; but they do not admit it nor do they admit or ever admitted to be the co‑sharer of anybody. On the other hand, they asserted exclusive title and possession as required by law for perfection of their defective title over the statutory period. As a general proposition the entry of one co‑tenant in the absence of clear proof to the contrary, enures to the benefit of all ; but when a person enters into possession of the share of another person not in his right as a co‑sharer or co‑tenant but in denial A of such right of the co‑tenant or co‑sharer can it be said that his possession is that of a co‑sharer to be enured to the benefit of other co‑sharers whom he has excluded from the enjoyment of the property in definite assertion of his exclusive title and possession. It may be true that the principle of possession between a co‑sharer is that every co‑sharer is a tenant‑In‑common and that possession of one tenant in common is not adverse to that of the other but a person cannot be a tenant‑in‑common with a person whom he never recognises as a co‑sharer or co‑tenant rather asserted title hostile to him. This is exactly the position in this case since the purchase of the property by the plaintiffs in Court sale in the year 1936. This is the proposition enunciated In the case of Krishna Chandra Das v. Purna Chandra Das and others (39 C W N 159 at 162, 163).

10. Further, it has been held in that case that sole possession by one tenant‑in‑common continuously for a long period without any claim or demand by any person claiming under the other tenant‑in common is evidence from which an actual ouster of the other tenant‑in‑common may be presumed. In the present case, it is clear that after the Court sale and purchase by the plaintiffs and their taking of delivery of possession on 13‑3‑36, they are continuously in possession of the purchased land for over 12 years and during this period Kalachand was alive near about 10‑11 years neither he during his life time nor his heir after his death ever claimed any share in the disputed property till they dispossessed the plaintiff in the year 1949, long after 12 years. The learned Single Judge has relied much on the decision of Sulaiman, J., in the case of Subah Lai v. Fateh Muhammad (A I R 1932 All. 393), where it has been held that the principle of law based on the mere fact of co‑ownership would apply with equal force to a transferee from a co‑owner, who steps into the shoes of his vendor. But this observation of the learned Judge is qualified by the following observations:‑ "Of course, if the assertion of title to whole is brought to his knowledge, and it is accompanied by this ouster and exclusion adverse possession would then commence as against him. The burden, therefore, would be on the transferee to establish that the denial of title and ouster were brought to the knowledge of the other co‑owner and in the absence of such proof he would not be able to perfect his adverse possession."

11. If this proposition is applied to the facts of the present case it becomes quite apparent that all the requisites demanded of a purchaser from the co owner have been fulfilled in that the plaintiffs are possessing the disputed land continuously and openly as of right on the basis of their sale certificate. What is the meaning of assertion of hostile title to be brought to the know ledge of the person against whom hostile title is asserted ? Certainly it does not mean that the person asserting hostile title and adverse possession should give notice of such assertion in writing or otherwise or by beat of drum to the persons against whom such an assertion is made. If they asserted it and possesse it openly and if the person affected thereby could know it if he cared to know, that is enough. That is the principle laid down by their Lordships of the Privy Council in the case of Secretary of State for India v. Debendra Lai Khan (611 A 78 at page 82), that adverse possession need not be shown to have been brought to the knowledge of the Government and is sufficient that the possession be overt and without any attempt at concealment and that possession may be adequate in continuity so as to be adverse although the proved acts of possession do not cover every moment of the period. At page 82 their Lordships observed :‑ "As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Devi v. Collector of Khulna L R 27 I A 136, 140, where his Lordship said that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.' The classical requirement is that the possession should be nec vi nee clam nee precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there is no authority for the requirement. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance to be aware of what is happening."

12. This principle has been repeated by their Lordships of the Privy Council in the case of Maharaja Sishchandra Nandy and others v. Baijnath Jugal Kishore (62 1 A 40 at p. 44).

13. Question of possession of co‑sharer can be considered from three aspects and in each aspect different consideration arises, namely, (1) that among the co‑owners themselves the general principle is that possession of one co‑owner is the posses sion 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. Here posses sion, however long it tray be, cannot be construed as adverse possession against another co‑sharer, (2) that a stranger purchaser of an undivided share, purchasing not any specific land but some share out of a joint property, who get possession of some specific land in possession of such a co‑sharer, stands on the same footing as the other co‑sharer. His purchase not being binding on the other co‑sharer, his possession will be that of his vendor and in a partition suit among‑the co‑sharers he may be a party, not because that he is a co‑sharer by purchase a but because of his interest having been derived from one of the co‑sharers and the land purchased by him is the land to be allotted the share of his vendor, and (3) the third case is where a stranger purchaser purchased a property from a person who, though a co‑sharer, never asserted to be a co‑sharer of anybody else, but sold the property as his own and the purchaser got possession of the property on the basis of the purchase and possessed it openly as of right without any attempt to conceal that possession so that any person interested in it may know about his exclusive possession to assertion of his title on the basis of his purchase.

14. The case we are dealing with comes under the third category mentioned above. The plaintiffs never intended to purchase any share of a joint property nor from any co‑sharer but from a person who was in possession of the same as his own property, as it appears from the sale certificate, which the plaintiffs purchased in execution of the mortgage decree and possessed the same on the basis of the sale certificate as their own property in exclusion of others openly, continuously and without any attempt to conceal their possession in assertion of that right. Certainly it will come under the principle laid down by the Privy Council in the case stated above. Therefore, in the circumstances of the case, there cannot arise any question of the plaintiffs' possessing it as co‑sharers and possession of a co‑sharer not being adverse to another co‑sharer until and unless ouster has been brought to the knowledge of the person sought to be affected thereby. We have already found that possession of the plaintiffs for over 12 years is of such a nature that the person affected by such an assertion of title and possession on the basis of such a title, could have known it if he cared to know it. Therefore, in the facts and circumstances of the case, the title, if any, of Kalachand is extinguished by adverse possession of the plaintiffs for over 12 years.

15. It is contended by Mr. Salam, the learned Advocate for the respondents, that if a person possessed a property as his own for over the statutory period and then finds that the entire property does not belong to him alone but there is another person who has also interest in respect of a portion of it, then the previous possession cannot be said to be adverse as it is not a denial of the right of the person about whose right he was not aware. In support of his contention Mr. Salam has relied on a decision of a Single Judge (Muhammad Shafi, J.,) in the case of Ghulam Haqani and another v. Mst. Zulekha and others (P L D 1953 Penh. 65). That was a case of boundary dispute and in demarcation of the boundary by a third party, a certain land of the plaintiff was allotted to the khasra of the defendant which was situated quits adjacent to it and admittedly belonging to the defendant of that suit. In these circumstances, it was held that, though the defen dants possessed this land allotted to their khasra No. 544, for over 12 years, they were not possessing it in assertion of any hostile title to anybody. "The defendants never occupied the property in denial to the title of the true owners ; on the other hand, they held it under a mistake, believing that they were entitled to it." The facts and circumstances of that case are quite distinguishable from those of the present case. Adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested‑whether in a single person or in many jointly. Adverse possession is possession by a person holding the land on his own behalf or on behalf of some person other than the true owner. In favour of such a holder limitation begins to run from the date of his possession, provided the true owner is not under disability and is capable of suing.

16. It is contended further by Mr. Salam, on the authority of the Privy Council case A 1 R 1947 P C 19 (28) in that in adverse possession, the adverse possessor must know that the property really belongs to another and without know ing it, though he possessed any land for any number of years as his own, will not give him title by adverse posses sion against the real owner. That Privy Council case arises out of renowned. Bhowal Sanyasi's case of Dacca, where a widow of the Sanyasi claimed title by adverse possession in the property of Bhowalraj. Their Lordships pointed out that she could not claim any right except to the widowed estate in the pro perty and her right observed at page 28 :‑ "The Hindu widow, as often pointed out, is not a life renter but has a widow's estate‑that is to say, a widow's estate in her deceased husband's estate. If possessing as a widow she possesses adversely to any one as to certain parcels she does not acquire the parcels as stridhan, but she makes them good to her husband's estate." It was contended in that case that on the supposed death of the second Kumar the appellant entered on her widowed estate in the undivided one‑third share of the Bhowal estate which belonged to her husband and she thereafter enjoyed it through the Court of Wards for a period much exceeding the necessary 12 years and the question was whether her possession was adverse to her husband he being in fact alive. "Possession must be adverse to a living person, and as she was possessing under a mistake as to his death, it is difficult to see how she can claim that by her possession she was asserting a right adverse to one whom she regarded as dead".

17. We think, this observation with reference to the facts and circumstances of that case, is not applicable to the facts of the present case where the plaintiff all through claimed adverse possession against Kalachand asserting that the latter on account of his defect did not inherit any property from Subal and that assertion was not only during the life time of Kalachand but also even after his death against his heirs.

18. Mr. Salam's third contention is that if an outsider purchases an undivided share of a joint property, he becomes a co‑sharer and possession of one co‑sharer cannot be adverse to the other co‑sharer and in support of his contention he relied on the case of Biswanath Chakrorarti v. Rabija Khatun and others (33 C W N 49). That was a case where a purchaser admittedly purchased the share of some co‑sharers in some plots of land in execution of a decree for money against them and took delivery of possession against those persons through Court. But when he went to take actual possession other co‑tenants Neamatali and Kadem Ali opposed them. Hence the purchaser filed a suit which was dis missed as barred under Article 144 of the Limitation Act. Hence the principle that an outsider purchaser of an undivided share of a, joint property becomes a co‑sharer and the possession of one co‑sharer cannot be adverse to the other co‑sharer. But with reference to the facts of the present case that principle has got no application to this case, as the question in the present case is not whether the plaintiffs purchased any undivided share of a joint pro perty. They have purchased whole of it and claim whole of it on that purchase, though subsequently it was found that their title was defective to the extent of 1/6th share of Kalachand. Certainly it is not a case of stranger purchasing an undivided share of a joint property.

19. Mr. Salam also cited the cases of Kumar Digawbar Singh v. Ahmad Sayeed Khan (A I R 1914 P C 11 p..(14)), Mst. Ghulam Rahi v. Muhammad Waris Khan (P L D 1955 F C 31) and Jagannath Marwari and others v. Mst. Chadni Bibi and another (A I R 1921 Cal. 647). As we think that those cases do not come under any of the categories mentioned above, we are refrained from discussing these cases in detail.

20. In these circumstances, we think the contention of the appellants that the learned Single Judge in the second appeal is absolutely wrong in holding that the plaintiffs have become co‑sharers to the extent of 5/6th share and the remaining 1/6th share belongs to Kalachand which has been inherited by defendant No. 1 and the heirs of Ishwar‑defendants Nos. 8, 9 and 10 and as such the plaintiffs cannot get a declaration to the 16 annas share and recovery of khas possession of the same is well‑founded.

21. The result, therefore, is that we allow this appeal and set aside the judgment and decree of the High Court in the second appeal and restore those of the learned Subordinate Judge. But as there are conflicting decisions, though based on different sets of facts, we think the parties should bear their own costs in this appeal. A. M. SAYEM, J.‑I agree with my Lord the Chief Justice. s. Q. Appeal allowed.