SUBAH LAL Vs. FATEH MOHAMAD

JUDGEMENT

(1.) After stating facts a" appear in Niamatullah, J .s judgment, his Lordship proceeded. The contention on behalf of the plaintiffs that found favour with the Courts below was that the sons of Qadir Bakhsh and the children of Makhnu were co-owners of joint property, and possession of some of the co-owners, viz., of the sons of Qadir Bakhsh, could not be adverse to the plaintiffs till it was established that the factum that Qadir Bakhsh a sons were claiming adversely had been brought to the notice of the plaintiffs.

(2.) As a general proposition of law, there can be no doubt that possession, where it is referable to a title, cannot be considered to be adverse, and hence a co-owner's possession is prima facie not adverse to the other co-owners. This was held in numerous cases and was laid down by their Lordships of the Privy Council in the well-known case of Corea V/s. Appuhami [1912] A.C. 230. Here however we are- concerned not merely with cosharers but with a third party, viz., the defendant- appellant.

(3.) So long as possession remained with the sons of Qadir Bakhsh, and conceding; for the sake of argument, but not admitting so long as possession remained with the tenants of the sons of Qadir Bakhsh, the possession was with the co-owners, and that possession could not ordinarily be regarded as adverse to the other co-owners; but as soon as the defendant obtained a usufructuary mortgage from the sons of Qadir Bakhsh and got possession under it in my opinion it must be taken that the possession of the defendant became adverse to the plaintiffs. The possession of the defendant after the mortgage could not be referred to mere co-ownership of the mortgagors with the, plaintiffs. A mortgage of the entire property by one of the proprietors is a clear assertion of adverse title and the possession of the mortgagee is surely adverse to the co-owners of the mortgagor.