MONI MOHAN PAL Vs. GOUR CHANDRA DAS

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for declaration of their title to the lands in suit as tenure-holders, in respect of 8as 2gds 2ks share of the same, and for partition of the lands by metes and bounds. The plaintiffs claim in suit was resisted, by defendant 1 whose tenancy right under the zemindars concerned in respect of the remaining share of the lands in suit was not disputed, and it was not also disputed that the zemindars under whom defendant 1 held his tenancy were the cosharers of the zemindars under whom the plaintiffs held. The question in controversy in the case as between the plaintiffs and defendant 1, so far as the appeal to this Court is concerned, was whether the plaintiffs title was extinguished by adverse possession on the part of defendant 1; whether the defendant has acquired a title to the 8as 2gds 2ks share of the lands in suit by adverse possession.

(2.) The Court of first instance came to be of the opinion that people who derive title, from cosharers and exercise possession on the strength of such title, stand on the same footing as the cosharers themselves, as they step into their shoes. Hence people who are entitled to possess undivided share in the land, whether they claim to do so on the strength of co-ordinate interest of the same grade or not, are in the same position as cosharers or co-tenants or co- proprietors.

(3.) The trial Court then proceeded to hold that there was no hostile possession by defendant 1 before 1326 B.S. and that the defendant's possession became adverse to the plaintiffs less than twelve years before the institution of the suit, and the suit was not barred by limitation. On appeal by defendant 1 the learned Subordinate Judge in the Court of appeal below agreed with the trial Court in view that the plaintiffs and defendant 1 stood in the relation of co- owners. It was held on the facts and in the circumstances of the case, that the plaintiffs could not be said to have been in constructive possession of the lands through the defendant; the defendant's possession was held to be adverse to the plaintiffs: circumstances of the case were such as to charge the plaintiffs with knowledge of the assertion of a hostile title by defendant.