JUDGMENT
1. This appeal may be disposed of on the short, ground that the plaintiff’s suit as framed is not maintainable under Section 42, Specific Relief Act. The plaintiff claims the land in the suit as a cosharer with the defendants. The defendants deny that they were ever the plaintiff’s cosharers and say that the properties belonged to them by transfer from the rightful owner. The plaintiff brought the present suit for declaration of his title to the properties in suit and for confirmation of possession. The trial Court found all the issues relating to title and possession against the plaintiff and dismissed the suit. The learned Additional District Judge has not gone into the question of title, but, on his finding on the question of limitation, he is of opinion that the suit is not maintainable. He has found that the plaintiff was never in possession, either actual or constructive, of the properties in suit and, therefore, the present suit, which is brought under Section 42, Specific Relief Act, is not maintainable. The learned advocate who appears for the appellant argues that the view taken by the learned Judge on the question of limitation is wrong and that, as he is a cosharer, the possession of the defendants should be presumed to be his possession; in other words he was in possession of the properties in suit through the defendants. Various objections can be taken to this contention : (1) The plaintiff in his plaint admits that the defendants were claiming the entire moveable and immovable properties on the strength of a will and probate. It is said that this conduct of the defendants has only clouded his title, but the facts cannot be concealed that the defendants were in possession in their own right to the exclusion of all others including the plaintiff. If the defendants were possessing the properties on the strength of a will they were certainly possessing them as against the plaintiff if he had any title to them. (2) The learned Additional District Judge’s finding on the question of limitation does not appear to be erroneous in law. The will under which the defendants are in possession is dated 1892. The present suit was brought in 1924. For so many years the defendants were in possession in their own right derived under the will. Every case between co-owners with regard to the question of adverse possession must be decided on the particular facts of that case. Admitting that the plaintiff was ever a co-owner his exclusion from this property for such a length of time under a title inconsistent with the title set up by the plaintiff is enough to entitle the Court to deduce from it that there was an ouster of the plaintiff from the properties. Ayennessa Bibi v. Sheikh Isuf [1912] 16 C.W.N. 849. (3) The principle of possession between co-owners is that every co-owner is a tenant-in-common and that possession of a tenant-in-common is not adverse to his co-tenant. But a person cannot be a tenant-in-common with a person whom he never recognized as a co-tenant and probably had no knowledge of his existence. Since 1892 the defendants have been in possession of the property in their exclusive right. They never regarded the plaintiff as a cosharer and it is possible, on the case they have proved before the trial Court, that they were not aware even that he was their cosharer.
2. The plaintiff was out of possession at the time of the institution of the suit. That being so, the case comes within the purview of the proviso to Section 42, Specific Relief Act, and is not maintainable in its present form. It may be noted that the plaintiff describes the suit in the plaint; as one for declaration of title and has affixed necessary Court-fees for such a suit. The appeal accordingly fails and is dismissed with costs.
