PREM NARAIN Vs. HIRDAY NARAIN

JUDGEMENT

(1.) THIS is a defen dant's appeal arising out of a suit for partition.

(2.) THE appellant's father was the owner of a house. He mortgaged one-sixth interest in it in favour of the respondent in the year 1910. The mort gagor being unable to pay the mort gage money the respondent filed a suit in 1916 for recovery of the amount. The suit was decreed. In execution of the decree a one- sixth interest in the house was put to auction and was pur chased by the respondent. Subsequent ly, he obtained symbolic possession of the interest purchased by him. Alleg ing that thereby he had become a co-sharer in the house with the appellant's father, he filed a suit for partition and separate possession in respect of a one-sixth share.

(3.) THE trial court decreed the suit and the lower appellate court has affirmed the decree. According to the concurrent findings of the courts be low, the house was not ancestral pro perty but belonged entirely to the mortgagor, that the respondent was a co-sharer in the house by virtue of his purchasing a one-sixth share therein and by his symbolic possession over the same he would be presumed in joint possession of the house, that the different circumstances upon which the appellant relied did not establish any ouster of the respondent from the house and the suit was not barred by time.