THIAGARAJA PILLAI Vs. APPAVOO PILLAI

JUDGEMENT

(1.) There were four items of property each belonging to a different person. The suit properties were adjacent to those four items and the four persons mentioned above owned them as tenants-in-common. In execution of a decree passed against one of the four men whom I shall call C, defendant 1 purchased the items covered by the suit in 1899., At that time C, as I have said, was only one of the four proprietors who owned the items as tenants-in-common. But as the lower Courts have rightly held, what defendant 1 purported to purchase was not merely the one-fourth share of C, but the items as a whole. The plaintiff files this suit on the strength of a sale deed executed in his favour in 1923 by another co-tenant whom I shall call F. The plaintiff's case is that he is entitled to recover from defendant 1 the one-fourth share which he (the plaintiff) purchased from F. The lower Courts have rejected the plaintiff's claim. The question is whether defendant 1 has acquired title to the suit plots by adverse possession.

(2.) When one of the co-owners does any act, the law will not presume that it was done in exercise of ownership adversely to the other co-owners, the reason being " possession is never considered adverse if it can be referred to a lawful title :" see Thomas V/s. Thomas [1856] 2 K.&J. 79 at p. 83, cited in Corea V/s. Appuhamy [1912] A.C. 230. The result is that those acts which, in the case of a stranger, would amount to assertion of a hostile title, would not be, in the case of a co-tenant, acts of dispossession; for, in his case, they are susceptible of explanation consistent with his recognizing the rights of the other co-owners. The possession then by one co-owner being in law prima facie the possession of all, he cannot put an end to that possession by any secret intention in his mind. As Lord Macnaughten observes in the case already quoted, Corea V/s. Appuhamy [1912] A.C. 230: " nothing short of ouster or something equivalent to ouster could bring about that result."

(3.) The following passage from the judgment in Jogendra Nath Rai V/s. Baldeo Das [1908] 35 Cal. 981 brings out this point very clearly: A co-tenant will not be permitted to claim the protection of the statute of limitation unless it clearly appears that he has repudiated the title of his co-tenant and is holding adversely to him; it must further he established that the fact of adverse holding was brought home to the co-owner either by information to that effect given by the tenant-in-common as; sorting the adverse right, or there must be outward acts of exclusive ownership of such a nature, as to give notice to the co-tenant that an adverse possession and disseisin are intended to be asserted.