JOHN Vs. JOSEPH

JUDGEMENT

(1.) THIS appeal is against the decision of Velu Pillai,J .,reported in Joseph v .John 1959 K.L.J.725.

(2.) THE suit property belonged to the late Thommen.Plaintiffs 1 and 2 and defendants 2 to 6 are his children.Eliswa,his widow,and Joseph,his eldest son are not parties to the suit,and in their place is impleaded the 1st defendant who had,in execution of a money decree against them,purchased the suit property and taken possession thereof on the 3rd Kanni 1112.According to the plain ­tiffs,that purchase bound only the share of Eliswa and Joseph but not of the plaintifls who were no parties to the proceedings.Treating the 1st defendant as their co -sharer,the plaintiffs claim their share in the property to be divided out and given to them with past profits.The 1st defendant resists that claim on the ground, inter alia ,of limitation on account of his having been in possession of the entire property in his own right as a court -auction -purchaser for 15 years before the institution of the suit in 1127(1952 ).That the plaintiffs,who were co -heirs with eliswa and joseph,were no parties to the 1 st d efendant's suit and court -purchase is not in dispute.The Munsiff dismissed the suit as barred by limitation finding the possession of the 1st defendant since 1112 to have been adverse to the plaintiffs;but the District Judge,on appeal,found that possession to have been that of a co -owner and therefore not adverse to the other co -ownerst,the plaintiffs,and decreed the suit.In second appeal,Velu Pillai,J .,reversed the District Judge and restored the Munsiff,but gave leave to the plaintiffs to appeal under section 5 of the High Court Act,1959.

(3.) PERHAPS ,this case can be solved on much simpler grounds.It is conceded by both sides that on the death of Thommen,the property devolved on Eliswa and Joseph and the plaintiffs 1 and 2 and the defendants 2 to 6 as co -heirs,but was in the sole possession of Eliswa.It has been found by the Munsiff and the District Judge that in the court -sale against Eliswa and Joseph,the 1st defendant had purchased the entire property in Karkatakam 1111 and entered possession through court on the 3rd Kanni 1112.That possession was obviously adverse to Eliswa;for,nothing could be more adverse to her than her forcible ouster through the process of the court.Admittedly,the Joseph plaintiffs have never been in direct possession,and the only constructive possession that they rely is the possession of their co -sharer Eliswa It must then follow that the 1st defendant's forcible entry that was adverse to Eliswa was adverse to the plaintiffs also.The suit for possession instituted 15 years after such event has necessarily to fail. In the result,we affirm the learned Judge and dismiss this appeal with costs.