FAIZUDDIN KHAN Vs. REJU AKAB

JUDGEMENT

(1.) This is a second appeal arising out of a suit brought by the plaintiffs for recovery of possession of certain lands after establishment of their khamar right to the same. The title to the land, according to the plaintiffs, is made out as follows. It unquestionably at one time belonged to a lady named Monsa Bibi. She died leaving a son Rajabdi and two daughters, Mogul Bibi and Jolusi. Mogul was married to one Ali Manjhi. In this state of: things, the property devolved as to eight annas on the son and as to the remaining eight annas, in equal shares, on the two daughters. Mogul s husband obtained a money-decree against Rajabdi and in execution of that decree, the right, title and interest of the judgment-debtor in the eight annas was sold to the plaintiffs Nos. 1 to 3. This was in 1908. Subsequently, the eight annas of the two daughters was acquired by private sale, four annas of Mogul being purchased by plaintiffs Nos. 1 to 3, and that of Jolusi by plaintiffs Nos. 1 to 5. Thus the plaintiffs claim to have become entitled to the sixteen annas of the property. Having become so entitled and, as they say being in possession, they were dispossessed by the defendants. The defendants, by way of answer to the suit, based on this dispossession, say that the sixteen annas of the property was vested in Rajabdi, whether as sold to him or how has not been made apparent to t us and it is further claimed that there was a settlement of the jote by Rajabdi and that defendants Nos. 1 and 2 succeeded to eight annas of each share, being the portion not sold, as his heirs. The Munsif decided the case in favour of the plaintiffs, holding that title had been established and the suit was within time. The lower o Appellate Court has modified this decree and has determined that the plaintiffs claim in respect of eight annas is barred by limitation. The eight annas to which this remark applies seems to be the eight annas belonging to the two daughters. It seems to me that we cannot accept this judgment as conclusive, for it is obvious that the matter has not been discussed with a complete apprehension of what are the principles that apply to such a case as this. The first point that has to be decided is whether by their purchase from the two daughters, Mogul and Jolusi, the plaintiffs took anything. It is clear they did, unless the interests of those two daughters had become extinguished under Section 28 of the Indian Limitation Act. But this requires that it should be established that the period limited to them for instituting a suit for possession of the property had determined. The only person, against whom they could have brought this suit prior to 1908, was their brother who was a co-tenant with them in the property. Now the law relating to co-tenants in matters of this kind has been authoritatively stated by the Privy Council in Corea v. Appuhamy (1902) A.C. 230 : 81 L.J. P.C. 151 : 105 L.T. 836. The circumstances of that case bear a strong resemblance to those of the present, and Lord Macnaghten, by whom their Lordships judgment was delivered, said as follows: "The two learned Judges in the Court of Appeal did not adopt in its entirety the suggestion of the Trial Judge. They both held that he entered as sole heir , and that his title has been adverse ever since he entered. They held that he entered as sole heir , apparently because he had it in his mind from the first to cheat his sisters. But is such a conclusion possible in law? His possession was in law the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result." Therefore, in this case, prima facie, the possession of Rajabdi was the possession of his sisters, and it could not become an adverse possession, until there was an ouster or the equivalent of an ouster. No mere mental determination would be sufficient. There is no finding of the lower Appellate Court which would in any way meet the conditions which are laid down here as requisite, and I do not for one moment suppose that the learned Judge had these considerations in his mind, for otherwise he could not have disposed of the matter in the summary way which he has adopted. If there was not that ouster or its equivalent, there was no adverse possession, there was no determination of the period limited for instituting a suit, and there was no extinguishment under Section 28. If so, the plaintiffs acquired title not only to the brother s share by the sale in execution but also to the sisters shares. Then has" it been made out that in any other respect there was no possession within twelve years? According to the principles to which I have referred, the possession of the sisters continued through the possession of the brother, at any rate, till 1908. How then is it possible to say that possession within twelve years is not established? To my mind, these matters call for further consideration, and a decision disregarding these matters cannot possibly stand. Before this case can be determined upon this ground of limitation, it will be for the Court to consider, in the light of the remarks in the judgment of Lord Macnaghten to which I have referred, whether it can reasonably be said that possession of Rajabdi was not the possession of his two sisters; and in determining that, it will be necessary to consider whether there has been any ouster or the equivalent of any ouster.

(2.) The decree of the lower Appellate Court passed in disregard of this cannot stand, and we must reverse the decree of that Court and send back the case for the determination of this issue, which seems to be the only issue remaining between the parties, in accordance with the law as is laid down.

(3.) The costs of this appeal and of the suit hitherto will follow the result.