VISHNU JANARDAN SALVEKAR Vs. MAHADEV KESHAV KSHIRSAGAR

JUDGEMENT

(1.) THIS is a second appeal from a decision of the Assistant Judge at Satara. The suit was filed on February 22, 1937, and the plaintiff asked for possession of half survey No.22 by partition. The trial Court decreed the plaintiff's claim, but in appeal the learned Assistant Judge held that the plaintiff's suit was barred by limitation.

(2.) THE property originally belonged to one Balkrishna Umbrani, who died, leaving as his heirs two daughters, Gaya and Durga. Durga married one Janardhan and died in 1914; and Janardhan was her heir, through whom plaintiff claims. THE defendants claim under Gaya. In 1924 by suit No.184 Janardhan as the heir of Durga sued Gaya for partition of the suit survey number and another survey number, which I need not deal with, and a decree was made on October 16, 1924, for partition of survey No.22. That decree being more than twelve years before the filing of the present suit in February 1937, various points arise.

(3.) NOW, Gaya and Janardhan as the heir of Durga were tenants-in-common, being joint heirs of the father, and in 1919 they filed a suit against a third party claiming as joint owners. It does not, I think, matter whether they were joint tenants or tenants-in-common, but the passage in Mulla's Hindu Law, 9th edn., at p. 23, Section 31, suggests that they were tenants-in-common. In the suit of 1924 Janardhan alleged that Gaya had been in sole possession of the property for the last three years, because he had been absent on Government service, and he claimed an account of the rents and profits for those three years. Whether one tenant-in-common is entitled to an account against another tenant-in-common in the absence of ouster, may be doubtful. But, at any rate, the learned Judge in that suit did pass a decree in favour of the plaintiff for a half share of the income of the property during the three years before the suit and for mesne profits from the date of the suit till delivery of possession. But it is to be noticed that in that suit the plaintiff did not claim that he had been ousted, and did not ask for mesne profits prior to the suit. All that he claimed was that his co-tenant had been receiving the rents and profits and had not paid his share to him, and on that basis, rightly or wrongly, he was held entitled to a share. But in order that the possession of one tenant-in-common may be held to be adverse to his cotenant, it must be shown that the co-tenant has been ousted. Prima facie, the possession of one tenant-in-common or joint tenant is the possession of all, and is not to be regarded as adverse to other tenants-in-common or joint tenants in the absence of evidence of ouster. And in this case it seems to me that in the suit of 1924 there was no claim, and no finding, that Janardhan had been ousted, and there is no evidence that Janardhan, and after his death the plaintiff as his son, had ever been ousted. The learned Assistant Judge says:- In view of the fact that in suit No.184 of 1924 the respondent's title to the suit property was denied, and taking into consideration that for three years before the suit and for more than twelve years after the suit the respondent was not in possession or enjoyment of the suit property, it is obvious that the respondent's claim is barred by limitation. But in view of the fact that the parties were tenants-in-common, it seems to me that it is not obvious that the respondent's claim was barred by limitation, and, in the absence of any evidence that the respondent was ousted from the property, it is not, in my opinion, right to hold that the plaintiff's title is barred by limitation.