JUDGMENT
Reuben, J.
1. This is an appeal by defendant 4 against an order of the District Judge of Motihari, reversing a decision of the Subordinate Judge of the same place.
2. The suit was brought by the plaintiff-respondent for partition of 21 bighas purchased by him on 10th October 1941, from defendants 6 and 7 out of their half share of a tenancy of 61 bighas 7 kathas in village Jagdishpur, taken in settlement from the Turkaulia Factory on 13th February 1922, by their father Kripal Narain Singh and certain other persons. According to the plaintiff, the settlees were (1) Kripal Narain, (2) defendants 2 and 3, who are brothers (3) Chaturbbuj Sahay deceased, father of defendants 5 and (4) Jadulal deceased, father of defendant 1, whereas defendant 4 denies that Chaturbhuj and Jadulal had any interest in the property: The Courts below did not find it necessary to investigate this point, as they were merely concerned with the share of Kripal Narain and the parties were in agreement that his share was one-half.
3. In the year 1929 the tenancy was sold in execution of a certificate for arrears of rent filed by the Battiah Estate, to whom the landlord’s interest had by then passed, and was purchased by defendant 4, the brother-in-law of defendant 3. The case of the plaintiff is that this sale was brought about by the fraud of defendants 2 and 3, who were managing the property on behalf of all the co-sharers, and that they purchased it themselves in the farzi name of defendant 4, that the possession of defendants 2 and 3 remained unchanged and that, by reason of the fraud, the purchase enured to the benefit of all the co-sharers. It was further their case that, the certificate have been filed against defendant 2 alone, the sale had the effect of a money sale ; therefore, only the share of defendant 2 passed, and the share of Kripal Narain remained unaffected.
4. The defence of defendant 4 was that his purchase was genuine and on his own account, that Kripal Narain surrendered his interest in 1925 and, therefore, his sons had no interest which they could transfer by the sale in favour of the plaintiff and further that, after the surrender by Kripal Narain, the tenancy was wholly represented by defendant 2 and so the certificate sale operated as a rent sale. He also attacked the genuineness of the sale in favour of the plaintiff.
5. The Subordinate Judge disbelieved the story of surrender. He found that Kripal Narain and defendant 2 were at first recorded in the landlord’s papers as tenants in respect of the tenancy and, after the death of Kripal Narain, his son defendant 6 was mutated in his place, that, therefore, defendant 2 did not represent the tenancy and the certificate sale left the share of Kerpal Narain unaffected. He held that defendant 4 was merely the farzidar of defendants 2 and 3, and that the sale was brought about by defendants 2 and 3 in fraud of their co sharers. He further held to be fictitious a zarpeshgi deed executed by defendant 4 in favour of defendant 9 in respect of this tenancy. According to him, the possession of defendants 2 and 3 as managing the property on behalf of all the co-sharers remained unchanged by these transactions. He dismissed the suit, however on the finding that the sale in favour of the plaintiff was itself fictitious.
6. The District Judge accepted all the findings of the Subordinate Judge in favour of the plaintiff. He came to a contrary conclusion on the question of the genuineness of the sale-deed in favour of the plaintiff, and, therefore, reversed the decree of the Subordinate Judge and decreed the suit.
7. The appeal has been pressed on three grounds: 1. That the decision of the District Judge is defective as he has not come to a definite finding regarding the farzi nature of the purchase by defendant 4. 2. That defendant 2 represented the holding, and the sale operated to transfer the interest of Kripal Narain’s sons. 3 That, even on the findings of the District Judge, the plaintiff was not in present possession of the property and is not entitled to partition.
8. The impression that the District Judge was not definite about the farzi nature of the purchase by defendant 4 is created by his discussing at some length what, in view of the certificate sale being a money sale, the position would be if the purchase was really by defendant 4. At p. 41 of the paper book, however, the District Judge has come to a definite conclusion accepting the Subordinate Judge’s finding of fargi. The defect lies not in the failure to come to a definite finding but in the District Judge’s failure to set out his reasons for his decision on this point. The parties are entitled to a consideration by the appellate Court of the evidence on the points raised by them, and judgment should contain the grounds on which the decision of the appellate Court is based. It is not sufficient for the appellate Court to state in general terms that it agrees with the reasoning of the Subordinate Court; although, in a judgment of affirmance, it is not necessary that the appellate Court should repeat all that has been said by the Subordinate Court, there must be a sufficient discussion to show that it has applied its own mind to the evidence. Fortunately, the point has been dealt with by the Subordinate Judge very completely and carefully, and on a perusal of the judgments as a whole I do not think an interference is called for.
9. Regarding the question of representation it is pointed out that, according to the plaint, the arrangement among the co-sharers was that defendant 2 would manage the property, that he would be responsible for paying the rent and other dues, that he would meet the other expenses, and that the balance of the income after meeting all these demands would be shared among the co-sharers. We are asked to treat this arrangement as holding out to the landlord that defendant 2 represented the tenancy. I do not think this view can be taken in face of the fact that the landlord’s jamabandi continued to be in the names of defendants a and 6.
10. Regarding the third point, it is urged that the purchase by defendants 3 and 3 being on their own account, they cannot be treated as holding on behalf of the other co-sharers, and, therefore, the plaintiff cannot be regarded as in present possession and entitled to partition. In this connection it is urged that the District Judge made a confusion between loss of title by adverse possession and loss of right of partition in a pure partition suit by reason of absence of unity of possession. This contention is not correct ; the District Judge went into the question of adverse possession in connection with an argument urged before him that the suit was barred by limitation. Later, at p. 43 of the paper book, he came to an express finding that the plaintiff was in present possession, and that there was unity of possession.
11. According to learned counsel for the appellant, even this latter finding in insufficient to meet his point, namely, that defendants were in possession on their own account. This argument ignores the finding of fraud, the effect of which was that the purchase enured for the benefit of all the co-sharers. The position of the parties remained unchanged and our attention was not drawn to anything to show that the plaintiff knew of the sale and the changed attitude of the defendants 2 and 3. It is well established that uninterrupted sole possession by one co-owner of undivided property does not by itself amount to custer of his co-owhers and is not sufficient to establish his adverse possession against them, and that his possession will be referred to his lawful title as a co-owner and will be taken to be the possession of his co-owners, Hardit Singh v. Gurumukh Singh, 28 C. L. J. 437: (A. I. R. (5) 1918 P. C. 1): Robert Watson & Co. v. Ram Chand Dutt, 17 I. A. 110: (18 Cal. 10 P. C.); The Midnapur Zamindary Co., Ltd. v. Naresh Narayan Roy; 29 C. W. N. 84 : (A. I. R. (11) 1924 P. C. 144). This principle will apply even more strongly in the present case where, according to the findings, the co-sharers in possession came into possession as representing all the co-sharers, and nothing has occurred to change that position.
12. In the course of the argument, it was faintly suggested that according to the findings, the fraud was that of defendant 3 and he is not one of the co-sharers. This contention is not open to the appellant, who in his written statement did not deny the allegations in the plaint that defendant 3 was one of the settlers of property along with defendant 2. On the contrary, in para. 15 of the appellant’s written statement one of the reasons assigned for the rent of the tenancy falling into arrear is that the land is “far away from the residence of defendants 2 and 3” and in the judgment of the Subordinate Judge we find mention of the fact that defendant 3 appeared at least twice and took steps in the certificate proceedings.
13. On the above grounds, I would dismiss the appeal with costs.
Jamuar, J.
I agree.