JUDGMENT
Madhavan Nair, J.
1. This second appeal arises out of a suit instituted by the plaintiff for the recovery of his half-share of the suit property. The plaintiff’s father and defendant 1 were brothers. Between them, there was a partition of the family properties in the year 1893. This partition included the suit property also but it is the common case of both the parties that this property was not divided but was allowed to remain in the possession of defendant 1. The plaintiff’s case is that defendant 1 was allowed to remain in possession for the purposes of management so that he may give over the produce on the property to the plaintiff’s sister. The defendant set up a special case that the property was given over to his possession as it was understood that he should have it for himself in case the. title to another item of property given to him under the partition-deed was found defective; he also pleaded adverse possession in support of his claim. Thus, the three questions for consideration were:
(1) Whether the plaintiff’s explanation of defendant 1’s possession is true?
(2) Whether the defendant’s explanation of his possession is true?
(3) Is the plaintiff’s suit barred by adverse possession?
2. On all these issues, the District Munsif found in favour on the plaintiff and gave him a decree as prayed for in the plaint. In appeal, only two questions seem to have been argued before the learned Subordinate Judge, these being: Is the permissive possession alleged by the plaintiff true? Has defendant 1 been in adverse possession for over 12 years before suit? On both the points, the learned Subordinate Judge found against the ‘plaintiff and as a result, his suit was dismissed.
3. In second appeal, Mr. Sitarama Rao appearing for the plaintiff-appellant argues that accepting the Subordinate Judge’s finding that the plaintiff’s case of the permissive possession alleged by him in the plaint is not true, still the learned Judge’s conclusion that defendant 1 has been in adverse possession for over 12 years should not be accepted inasmuch as that conclusion has been arrived at by the learned Judge by throwing the burden of proving adverse possession on the plaintiff. This point is dealt with by the learned Judge in para. 18 of his Judgment. He says:
Possession by defendant 1 since the portion of 1893 has bean proved. Even in the plaint such possession from within one year of the partition is admitted. The possession by defendant is adverse to the share of the plaintiff’s father unless that possession is traced to an origin consistent with the recognition of the plaintiff’s father’s title. On issue 1 I have found that the plaintiff has failed to prove such a case.
4. The learned Judge is evidently under the impression that the moment the plaintiff failed to prove the special case of permissive possession set up by him, the conclusion must inevitably follow that the defendant’s possession is adverse. That this is not so is clear if we understand aright the nature of the title of the parties to the property. It is admitted that the property belonged to the father of the plaintiff and defendant 1 was allowed to remain in possession on behalf of both. His possession of the property with respect to the plaintiff must be considered to be the possession of a co-owner and, therefore, unless he shows that he has repudiated the title of the plaintiff to the knowledge of the plaintiff or has done some act adversely, that also to the knowledge of the plaintiff, he cannot be heard to say that his possession is adverse. It is unnecessary to refer to authorities on this question, but the legal position is well-stated in a decision of our Court in Rajagopala Ayyangar v. Soundararaja Aiyangar A.I.R. 1924 Mad 113. Therefore, unless the defendant proves that he has been holding possession in the way that I have stated, it is wrong to conclude from his bare possession that his possession is adverse. The burden of proving the adverse nature of his possession lies on him and the evidence with regard to that point must be viewed from, that standpoint. It is with respect to this point that one of the defects in the judgment of the lower Court appears. In para. 19, the learned Judge refers to a mortgage that was executed of this property by defendant 1. The execution of the mortgage does not by itself necessarily show that the act is an adverse one. It must be shown as pointed out in Hafiz Abdullah v. Ali A.I.R. 1923 All. 291 that it was with the knowledge of the plaintiff that such mortgage of the property was given by defendant 1. It is only then that an inference that defendant 1 has been dealing with the property as his own could be drawn. The learned Subordinate Judge should therefore consider the evidence on the record on the question of adverse possession having regard to these observations.
5. The judgment is defective in another respect also. The defendant set up the special case, which I have already referred to above, namely, that the property was given over to him to make up for a possible defect in the family’s title to another item of property. If he is able to make out this case, that by itself would enable him to resist the plaintiff’s suit. Some reference is made to this aspect of the defendant’s case in para. 15 of the learned Judge’s judgment, but it has not been considered as a separate question and the evidence relating to it has also not been discussed by him. This question also should be considered by the lower Court before the case is finally disposed of. I would therefore set aside the decision of the learned Judge and ask the lower Court to dispose of the case on the merits, the two questions for consideration being: (1) Has the defendant been able to prove that he has been in adverse possession of the property for over the statutory period? (2) Has the defendant made out the special case set up by him in his written statement? No fresh evidence.
6. The appellant will get his costs in this Court; the other costs will be provided for by the lower Court at the time it disposes of the appeal. The Court fee will be refunded.
