ORDER
1. (19/20th August 1936) – This is a defendants’ appeal arising out of a suit for joint possession. The plaintiff is Babu Singh, a nephew of Daulat, and the defendants are also nephews of Daulat, though they are the sons of another brother of Daulat. It is not mow disputed that Daulat became the owner of the tank in dispute. It cannot also be denied, and has not been denied, that both the plaintiff Babu Ram and the defendants being nephews of Daulat succeeded to the tank after his death in equal shares as collaterals. The defendants’ case rests entirely on the plea of limitation. In the written statement it was certainly asserted that the defendants and their predecessors had been in adverse possession at the4ime for a long time. But the Courts below did not record a distinct finding that there was actually adverse possession for over 12 years against the plaintiff. All that the finding recorded by the trial Court came to, was that the defendants had been in exclusive possession of this tank, which was joint property and that within 12 years they had spent some money to get the tank dug up. The appellate Court did not go even as far as that. It merely held that as the plaintiff admitted that he had not been in possession for some time before the suit, the suit was one for ejectment on the ground of dispossession and Article 142, Lim. Act, applied to this case.
2. The learned Judge therefore held that the burden was on the plaintiff to prove that he was in joint possession within 12 years of the suit and, having recorded a finding that the plaintiff had failed to discharge that burden, dismissed the suit. In this view he was fortified to some extent by the ruling in Kanhaiya Lal v. Girwar A.I.R. 1929 All. 753. On appeal a learned Judge of this Court has come to the conclusion that the finding recorded by the lower appellate Court was in no way sufficient for the dismissal of the suit. In this view he is perfectly right. When it was admitted that the parties were co-sharers, then the mere proof of exclusive possession on the part of defendants would not destroy the title and rights of the plaintiff. No doubt when the plaintiff admitted that he was out of possession at the time of the suit Article 142 applied, but having also established that the parties were co-sharers up to 1917, when the defendants purported to transfer the whole tank to the contesting defendants, there would be a presumption of constructive possession in favour of the plaintiff up to the time this title was denied : see Bindhyachal Chand v. Ram Gharib Chand A.I.R. 1934 All. 993. It has been laid down by their Lordships of the Privy Council in Charles E.V.S. Corea v. Appuhamy (1912) A.C. 230. that in order to destroy a co-sharer’s title it must not only be shown that the other co-sharer was in exclusive possession of the joint property, but that there was a denial of title and an ouster of the former co-sharer or something equivalent to it. The mere fact that in a village one co-sharer is in execlusive possession of a joint property would not amount to a denial of title or an ouster so as to destroy his title.
3. Indeed in many cases co-sharers are in separate possession of joint plots and the state of affairs continues until one of them objects. The learned Judge of this Court seems to have thought that there was no denial, express or by necessary implication, of the plaintiff’s title till 27th April 1917. The learned Counsel for the defendants urges before us that if the learned Judge was not satisfied with the finding of the lower appellate Court, then there should have been an issue sent down for determination. We would be prepared to order an issue to be sent down for determination if there were at least some evidence showing a denial of title or ouster of the plaintiff earlier than 12 years prior to the suit. We accordingly allow this case to stand out for one week.
JUDGMENT
1. The facts of this case are given in our order dated 19th August 1936. It is now made clear that the plaintiff had brought a suit for a declaration previously without asking for possession, and when examined by the Court he admitted that he was not in possession. The result was that his suit was defective in view of the provisions of Section 42, Specific Belief Act. The plaintiff accordingly applied to the Court for permission to withdraw the suit with liberty to bring a fresh suit. Accordingly the present suit was instituted on 31st July 1929, shortly after the expiry of 12 years from the date when the sale deed of 27th April 1917 was executed. The previous suit, however, had been within 12 years of that sale-deed.
2. It has been held by a Full Bench of this Court in Sadayatan Pande v. Ram Chandra Gopal A.I.R. 1934 All. 688 that where la plaintiff chooses to withdraw his suit under Order 23, Rule 1 he is not entitled to the benefit of Section 14, Lim. Act, in a subsequent suit founded on the same cause of action, because it cannot be considered that the previous suit failed on account of a defect of jurisdiction or other cause of a like nature. It is, therefore, clear that the plaintiff is not entitled to the exclusion of the period during which the plaint in the previous suit was pending. We have already held that up to the 27th April 1917, there being nothing to show that the defendant’s predecessor, who was the plaintiff’s co-owner, had denied the plaintiffs title or was in exclusive possession to such an extent as to show by overt acts that he was claiming adverse possession against the plaintiff, the plaintiff’ must be deemed to have remained in constructive possession of his share, and accordingly time did not begin to run against him up to that date.
3. In the present plaint, the plaintiff admitted that there was, dispute between the parties in Jeth 1928 when the defendants to the knowledge of the plaintiff denied the plaintiff’s ownership and also denied his possession over a moiety share, and the plaintiff further admitted that he previously made an admission that the defendants entered into possession of the plaintiff’s share also during the pendency of the previous suit and that accordingly it was necessary for him now to sue for possession. It is, therefore, clear that the present suit is brought for recovery of possession on the ground of the plaintiffs’ dispossession. The claim must therefore be governed by Article 142, Lim. Act and not by Article 144. Now although the defendants’ predecessor was a co-owner of the plaintiff, it cannot be said that the defendants, who took a sale-deed of the entire property in defiance of the plaintiff’s share in it, ever recognized themselves as the plaintiff’s co-owners or ever held possession for themselves and on behalf of the plaintiff. The actual possession of the defendants, if exclusive, could never be regarded as plaintiff’s constructive possession. Prom the moment that the defendants’ possession was adequate in continuity, is publicity and. in extent to show that it was possession adverse to the competitor and it was overt and without any attempt at concealment so that the plaintiff against whom time was to run ought, if he exercised due diligence, to have been aware of what was happening, the defendant’s adverse possession would be established and the plaintiff cannot be considered to be in possession : see the rule laid down by their Lordships of the Privy Council in Secy. of State v. Debendra Lal Khan A.I.R. 1934 P.C. 23 at p. 155. In the present case we have to see whether the plaintiff has discharged the burden of establishing his possession within 12 years of the suit. Prom the time when the defendants took exclusive possession openly and publicly it must be assumed that the plaintiff was not in possession. If, however, there was a short period after the execution of the sale-deed of 27th April 1917 during which the vendor, who had been the plaintiff’s co-owner, continued in possession, then if seems to us that the. plaintiff should be considered to be still in constructive possession of the property and time should not begin to run against him.
4. No doubt, after the execution of the sale-deed the defendants’ predecessor ceased to be an owner of the property, and cannot therefore be regarded as a co-owner or co-sharer of the plaintiff. But his possession having been permissive and having commenced -with the express or implied consent of the plaintiff, it must be presumed that the consent continued so long as the person who had been allowed to remain in possession continued in possession. It would only be from the moment that he discontinued his possession that the constructive possession of the plaintiff would cease. It would be unfair to hold that although the person whom the plaintiff put in possession with his consent continued in possession, adverse possession would begin to run against the plaintiff merely because such a person executed a sale-deed of the plaintiff’s share as well. Of course, if the knowledge of the execution of the sale-deed is brought home to the plaintiff, then it must be considered that the possession of the previous co-owner ceased to be on behalf of the plain, tiff from the date of such knowledge. In the absence of any such proof it seems to us that time should begin to run against the plaintiff only from the time when the defendants obtained possession exclusively, overtly and publicly so that if the plaintiff had exercised due diligence he ought to have discovered that a stranger other than the person whom he had allowed to remain in possession was in sole occupation of the property. If it turns out that during this short interregnum no one was in actual possession, that is to say, neither the vendor nor the present defendants, then as possession must be deemed to be with the true owner and the plaintiff’s legal title had not been destroyed, it must be presumed that possession reverted to the plaintiff during that short interregnum. The learned Judge of this Court has rightly applied Article 142 to this case, but has decreed the claim against the defendants on the supposition that there was nothing to show that the tank was capable of actual physical possession. Of course, physical possession of the tank could not be taken, but exclusive possession of the tank was possible. Indeed it is in evidence that fish is produced in this tank and used to be caught. There would also be other ways of retaining exclusive possession over a tank. The plaintiff admitted that the defendants had taken possession of his share in the tank which implies that it was not a property which was altogether incapable of being taken in exclusive possession. We are, therefore, of opinion that before deciding this point against the defendants it is necessary to have a clear finding on the following issue: When did the defendants take exclusive possession of the entire tank in such an open, overt or public manner as would have put the plaintiff on enquiry, if he had exercised due diligence? The parties will be at liberty to produce fresh evidence. The plaintiff is to lead evidence first. The finding will be returned to this Court within three months of this date, if practicable. On receipt of the finding the usual ten days’ will be allowed for objections.
