PATNALA BHIMAYYA SUBUDHI Vs. KUNDANA BIBI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the appellate judgment of the Addl. District Judge of Bernampur reversing the judgment of the Addl. Munsif of Aska and dismissing the plaintiff's suit for partition of a house.

(2.) THE house in dispute originally belonged to one Saudagar Ismail who died leaving two sons named Md. Issack and Abdul Waheb. On 29 -3 -1934, the plaintiff obtained a sale deed from Md. Issack by which the latter purported to convey to him the whole of the house alleging that he was the sole owner of the same. On 3 -10 -1934, however deft. 3 obtained a sale deed from one Kundana Bibi, the widow of Abdul Waheb, by which she purported to convey to him the whole house alleging that she was the sole owner of the same. As was to be expected, disputes started between the two purchasers and the plaintiff instituted a suit (O. S. No. 311/37) for recovery of possession of the whole house. His suit was decreed by the then Addl. Munsif of Aska. But on appeal (Appeal No. 26/38) the Subordinate Judge of Berhampur modified the Judgment of the trial court and decreed the plaintiff's suit, to the extent of eight annas share of the house only. He further gave a direction to the effect that the plaintiff was entitled to possess his eight annas share jointly with the other co -shares so long as no partition was effected. The decision of the appellate court was given on 6 -4 -1933. The present suit was brought by the plaintiff on 30 -1 -1947 for partition basing his claim mainly on the decision of the appellate court mentioned above so far as the right to eight annas share Was concerned.

(3.) THE only point for consideration in the second appeal is whether on the evidence adduced in the case the lower appellate court was justified in holding that a case of ouster was made out. In his deposition in the present litigation the plaintiff stated that he was never in possession of the suit house and that defendant 3 was in possession ever since the date of his purchase on 3 -10 -1934. Doubtless, this admission of the plaintiff by itself would not suffice to show that he lost his title by ouster. It is well known that as between two co -shares mere possession by one co -sharer would not constitute ouster unless there is some material to justify an inference that he either expressly or by implication refused to allow the other co -owner to be in possession or to participate in the enjoyment of the Joint property. This principle of ouster as amongst the original co -sharers applies with equal force as against the alienees from the co -sharers also (see - - 'Dipnarain Bai v. Pundeo Rai, AIR 1947 Pat 99(A) ).