JOSEPH Vs. JOHN

JUDGEMENT

(1.) The suit out of which this Second Appeal arises, was instituted by two plaintiffs, for a partition of their two-third share of the suit property, which is a leasehold and belonged to Thomman. After his death, the suit property came into the possession of his widow Eliswa, and his children, the plaintiffs, defendants 2 to 6 and deceased Joseph. In execution of a decree against Eliswa and Joseph, the 1st defendant purchased the suit property, and obtained possession of it, on the 3rd Kanni 1112 and he has been in possession ever since. The suit was resisted by the 1st defendant, and the chief question to be decided in this appeal is, whether the plaintiffs right in the suit property has been extinguished by reason of the 1st defendants adverse possession. The suit was instituted on the 14th May 1952, corresponding to the 1st Edavam 1127. The court of first instance held in favour of the 1st defendant; but on appeal, the District Judge held against him and he has therefore preferred this appeal.

(2.) It was not disputed, that the widow and children of Thomman were coowners of the suit property. Though it is 30 cents in extent and the sale record and the delivery list in the 1st defendants favour have this as 13 cents, it may now be taken as concluded, by the decree of the courts below, that the entire property of 30 cents came into the possession of the 1st defendant, as a result of the execution proceedings. The case of the plaintiffs, that Joseph, having been in sole possession of the suit property, fraudulently and in collusion with the 1st defendant, transferred it to him in order to defeat the other coowners, has not been substantiated. It may also be stated, that the decree and execution proceedings, pursuant to which the 1st defendant obtained title, were not binding on the plaintiffs and defendants 2 to 6. The question of adverse possession has to be decided on these premises.

(3.) The learned District Judge relied on Siddiah v. Rankadas, 4 D.L.R. Mysore 140, in support of his view, that the transferee from a coowner of the whole of the joint property stands in the same position as the transferor himself as against the other coowners, and cannot prescribe against them in the absence of ouster. There are also a few cases, to be mentioned later, which have taken the same view, but there are weighty pronouncements by full benches in the Madras and Bombay High Courts, and by division benches in the Calcutta and Patna High Courts, to the contrary.