JUDGMENT
Mitter, J.
1. This appeal has been preferred by the plaintiffs and is directed against an order of remand. Plaintiffs’ case is that the defendants kept the plaintiffs out of possession of the lands in suit and the plaintiffs consequently had to bring a title suit for recovery of possession of the lands. In that suit plaintiffs got a declaration of title in respect of 10 annas 71/4 pies share. On appeal by the defendants the extent of the plaintiffs’ share was reduced to 9 annas 10-23/28 pies and plaintiffs’ decree for khas possession in respect of that share was confirmed in appeal by the decree, dated the 31st of May 1919. The plaintiffs asked the defendants to have the lands partitioned amicably and to give up possession of plaintiffs’ share of the lands but the defendants refused to give up possession and have been exclusively possessing all the lands. It may be mentioned here that it does not appear that the plaintiff s made any attempt to execute the decree for recovery of joint possession through Court. They did not even obtain symbolical possession. The plaintiffs commenced the present suit to which this appeal relates for partition of the lands in suit by metes and bounds and pray that they may be put in possession of the lands which may fall to their share on partition. There was also a prayer for recovery of mesne profits. One of the issues raised in the trial Court was : Is the suit for khas possession barred by the law of limitation?
2. The Munsif held that the suit was not so barred as the previous title suit between the parties was decided in 1917 and the appeal was decided in 1919 and the present suit was instituted in the year 1925, i.e., within twelve years from the date of decision of the first suit. The Munsif granted a preliminary decree for partition and appointed a Commissioner to effect the partition of the jote into two allotments, one for plaintiffs’ share and the other for Defendant No. 1’s share, and directed that the plaintiffs would get khas possession of their lands. Wasilat was also granted. On appeal by the defendants, the lower appellate Court held that the plaintiffs’ claim for khas possession was barred by Section 47 of the Civil Procedure Code, but allowed the plaintiff to convert the present suit into a proceeding in execution under Section 47, Clause (2) of the Code of Civil Procedure, subject to any objection as to limitation. But as there was no sufficient material on the record to decide the question of limitation he framed an issue en the point and remitted the case to the Court below for the trial of that issue. The issue which was framed by the lower appellate Court runs as follows:
If there is no bar of limitation to this suit being treated as a proceeding in execution.
3. The lower appellate Court further observed that:
as the finding of the lower Court on other points was not assailed and is not being disturbed in appeal, the suit will be decreed with costs if the issue is decided in plaintiffs’ favour and will stand dismissed with costs if it is decided against them.
4. Against this order of remand an appeal has been preferred in this Court and it has been contended before us by the learned advocate for the appellant that the lower appellate Court is wrong in holding that Section 47 of the Civil Procedure Code bars the present suit and that it should have held that the decree in the previous suit between the parties having declared plaintiffs’ title they must be deemed to be in constructive possession of the suit-lands and as they were in possession within twelve years of the suit they are entitled to a decree for partition by mates and bounds and to a decree for recovery of possession after partition.
5. We are unable to accept this contention for we think that the plaintiffs cannot now be heard to say that they are in constructive possession of the disputed lands after having alleged in the previous suit that they are dispossessed in 1320 B.S. and having succeeded in the previous suit in obtaining a decree for khas possession on the basis of such allegation. Plaintiffs’ present suit for partition must therefore be regarded as having been brought by parsons who are out of possession of joint lands. Such a suit is not maintainable, for, as has been pointed out in the case of Bidhata Rai v. Ram Charitar Rai [1907] 12 C.W.N. 37, the plaintiff is entitled to maintain a suit for partition if his possession to some part of the joint property is admitted or established. It is essential that he should be in actual or constructive possession of the properties, and whether he has such possession or not, is to be determined in view of the principle that the possession of one co-owner is prima facie the possession of all the co-owners, and his possession must be presumed to be in conformity with his right and title as co-owner. If it is established, that he is not in possession at all of any portion of the joint property, that there has bean a complete ouster, he must sue for recovery of possession and partition and pay ad valorem Court-fees upon a plaint appropriately framed for the purpose. This follows from the principle that partition signifies the transformation of joint possession into separate possession. If, however, the possession of the plaintiffs is admitted or established over what forms part of the joint estate, the suit does not cease to be one for partition, merely because the defendant denies the title of plaintiff to a share of the e3tate or to specific lands of the estate and asserts a hostile title and adverse possession therein.
6. It follows therefore that if the right of the plaintiffs to execute the decree for khas possession is barred by the statute of limitation he cannot again sue for recovery of khas possession. And consequently being out of possession the plaintiffs are not entitled to sue for partition. In such a case the Court can only pass an ineffective decree for partition for it cannot grant to the plaintiffs the relief of possession on partition. It has been ingeniously argued by the learned advocate for the appellants that his inability to execute the decree for joint possession, assuming such inability to exist, does not preclude him from suing for possession after partition which is not the same as joint possession. This argument is unsound, for, a suit for partition presupposes a joint possession either actual or constructive. Reliance has also been placed by the learned advocate for appellants on the case of Corea v. Appuhamy [1912] A.C. 230 for the proposition that the right to partition is not lost unless there is an ouster for the statutory period which would bar the title of the co-owner claiming partition. All that that case lays down is that a co-owner’s possession of joint lands is not prima facie adverse against another co-owner and that a co-owner’s possession is possession on behalf of all the other co-owners. But it is no authority for the proposition that where a co-owner admits that he is not in possession of joint lands and that the possession of the other co-owners is not possession on his behalf but exclusive and hostile possession, still such hostile possession is to be regarded as possession on behalf of all including the excluded co-owner.
7. In this view we think that the decision of the lower appellate Court is right and as the defendants did not raise the plea under Section 47 in bar of suit in the Court of first instance plaintiffs should be given an opportunity of showing that his right to execute the decree for joint possession in the previous suit is still subsisting and is not barred by limitation. If the plaintiff had obtained symbolical possession in execution of the decree in the previous suit then that symbolical possession would have amounted to actual possession as between the plaintiffs and defendants and plaintiffs’ right to sue for partition would have been subsisting within twelve years of the previous suit : see Juqgobundhu Mukherjee v. Ram Chandra Bysack [1880] 5 Cal. 584 as also the decision of the Judicial Committee, Midnapore Zamindary Co. v. Naresh Narain Roy A.I.R. 1924 P.C. 144. But as we have stated at the outset no symbolical possession was obtained in this case and the principle of the decision of the Judicial Committee does not apply.
8. The result is that the order of the lower Appellate Court must be affirmed and the appeal dismissed with costs, two gold mohurs.
Duval, J.
9. I agree.
