AAS MOHMED ROWTHER Vs. JAINA BIBI

JUDGEMENT

(1.) THE defendants are the appellants. They succeeded before the trial Court in resisting the plaintiff's suit for partition and separate possession of her one-third share in the suit properties but they failed to sustain the decree of the trial court before the lower appellate court. The lower appellate court has awarded a decree to the plaintiff for her one-third share in the suit properties.

(2.) THE plaintiff, who is the sister of the first defendant, claimed that she was entitled to partition and separate possession of a third share in the suit property from the first defendant. The second defendant is a mortgage of the suit properties from the first defendant. The suit was resisted by defendants 1 and 2 on the ground that the plaintiff's right to one-third share was lost by adverse possession. The trial Court accepted the defense and dismissed the plaintiff's suit, holding that the plaintiff had lost her title to her one-third share by adverse possession, on the part of the first defendant. The Lower Appellate Court, however, has taken a different view and has held that the first defendant being a co-sharer his possession, however long it may be, would not result in his acquiring title by adverse possession and that, therefore, the plaintiff had a right to claim her one-third share in the suit properties. in that view, it decreed the suit as prayed for by the plaintiff.

(3.) IN this second appeal, Mr. N. S. Raghavan, the learned counsel for the appellants, relied on the decision of the Full Bench in Palania Pillai v. Amjath ibrahim Rowther, 1942-2 Mad LJ 321 = (AIR 1942 Mad 622 (FB)), and contended that the facts of this case would clearly fall within the scope of that decision and that, therefore, the view taken by the lower Appellate Court that there was no acquisition of title by adverse possession by the first defendant could not be sustained. To find out whether the principle of the Full Bench decision referred to above would apply to the facts of this case, it is necessary to set out a few relevant facts. The suit properties were originally owned by the father of the plaintiff and the first defendant. After his death, his wife, was in possession of the properties for herself and on behalf of the plaintiff and the first defendant, who were then minors. It is not in dispute that from the year 1925 till the year 1944, the mother mortgaged the properties with possession to third parties under various documents Exs. B-1, B-3, B-4 and B-7. The first defendant, even when he was a minor, had gone to Burma and he returned to India only in 1946. Admittedly, after his return from Burma, the first defendant redeemed the mortgages, Exs. B-1, B-3, B-4 and B-7 and took possession of the properties from the various mortgagees. Subsequent to the redemption of the above four mortgages, the first defendant was in possession of the properties for a year or two and thereafter he in his turn mortgaged the properties to the second defendant under Exs. B-13 to B-17. The plaintiff, who is the elder sister of the first defendant, has kept quiet all these years and has filed the present suit in 1962, claiming her share in the suit properties. Though the trial court has not given any specific finding on the question whether the plaintiff was aware of the mortgages created by the first defendant in favor of the second defendant, the lower appellant Court has given a specific finding that the plaintiff was not aware of the mortgages executed by the first defendant in favor of the second defendant. But the fact is that the second defendant has been in possession of the properties as a usufructuary mortgagee from the first defendant. It was in those circumstances the question whether the first defendant has acquired title to the share of the plaintiff by adverse possession to the suit properties has to be decided. Plaintiff is admittedly, one of the co-sharers of the properties.