(1.) The plaintiff sued for a declaration that the suit property was the joint property of the plaintiff and the first defendant, and that the second defendant] who has purchased some of the property from the first defendant alone had no interest in the property, and for partition. He alleged that the plaintiff and first defendant had purchased the suit property in union in July 1894. Hence the suit for partition. The first defendant contended that the plaintiff was never in possession and enjoyment of the suit property; that it was in his exclusive possession and enjoyment, and that the plaintiff's suit was barred; that the suit property was purchased in the name of the plaintiff and defendant, but plaintiff could not pay his share of the money, Hence the property was in the first defendant's exclusive possession and enjoyment. Unfortunately on these pleadings the proper issues were not raised. This admittedly was a case in which the property had been purchased by the plaintiff and the first defendant as joint owners. In order to pay for the property a san mortgage was executed, and it was not until 1305 that the first defendant alone redeemed the san mortgage.
(2.) The position of joint owners has more than once been explained in these Courts. The sole possession by one of two joint owners itself is no evidence of his denial of the right of the other joint owner, and, therefore, time does not run against the joint owner out of possession until the joint owner in possession has done some act to the knowledge of the other joint owner which amounts to a denial of that joint owner's right. The fact that the first defendant redeemed the mortgage of 1905, even although the plaintiff was aware of it, cannot amount to a denial of the plaintiff's right. It would entitle the first defendant to a lien on the whole property for the plaintiff's share of the mortgage debt. No issue was raised in the trial Court as to whether there had been an ouster of possession to the knowledge of the plaintiff for more than twelve years. But evidently the question of adverse possession was in the mind of the Court, The Court said: "The whole question of adverse possession would depend upon one fact, knowledge of the plaintiffs. 1 That is quite wrong. The mere fact that the plaintiff knew that the first defendant was redeeming the mortgage could not possibly amount to an ouster. The trial Judge dismissed the suit apparently on his finding on issue No. 2 which was-Was plaintiff ever in possession and enjoyment of the suit property within twelve years next prior to the suit. The finding is recorded in the affirmative in the print at p. 6, but that is evidently a mistake. That is not the proper issue in a suit by one co owner for possession against the other co-owner.
(3.) In appeal apparently the case for the appellant was not properly argued. The learned Judge says: " On the other hand the respondent No. 1 had adduced abundant evidence to show that he alone redeemed the suit property. The appellant had knowledge admittedly of that redemption. As soon, therefore, as it is proved beyond reasonable doubt that the appellant co-mortgagor had not joined in redeeming the mortgage, his suit brought after twelve years must fail. That proposition of law is not assailed before me. " That proposition of law again is absolutely wrong, and it. is difficult to understand how the appellant's pleader could have assented to it. Then the learned Judge proceeds: " The 2nd issue before the trial Court was-Was plaintiff ever in possession and enjoyment of the suit property within twelve years next prior to the suit"; and that, as we have already pointed out, was a wrong issue altogether. The learned appellate Judge concurred with the conclusion of the trial Court that it should be found in the negative. Consequently the appeal was dismissed.