SRIMATI SABITRI DASI Vs. NADIAR CHAND BARIK

JUDGEMENT

(1.) THE substantial question in these two appeals is whether the Sidings of the Courts below to the effect that the possession of defendants Nos. 1 to 5 should be treated as adverse to the plaintiffs and the defendants Nos. 6 to 10 and that the title of defendants Nos. 6 to 10 has become extinguished by the adverse possession of defendants Nos. 1 to 5 are correct. THE question of adverse possession is a mixed; question of law and fact. In dealing with this question we have got to take into consideration the findings of fact arrived at by the lower Appellate Court and then to see whether the inference which that Court has drawn from these facts was proper or not. Now what are the facts that have been found by the lower Appellate Court in this case? It has been found in the first place that in 1279 the Roys granted a settlement of the whole of the mokarrari interest to the defendant No. 1. By this settlement the title of the predecessors of defendants Nos. 6 to 10 was altogether ignored It has next been found that defendants Nos. 1 to 5 who claim under that settlement have been paying the whole of the mokarrari rent to the superior landlord since 1279. Nextly it has been found that defendants Nos. 1 to 5 have on several occasions mortgaged the whole of the mouzah and have treated it as their sole property ignoring the rights of the predecessors of defendants Nos. 6 to 10. From these facts the Court of Appeal below has come to the conclusion that the possession which was exercised by defendants Nos. 1 to 5 has become adverse to the plaintiff and defendants Nos. 6 to 10. THE learned Advocate appearing on behalf of the appellants argues that these facts even if correctly found would not go to show that the possession exercised by the defendants Nos. 1 to 5 was in assertion of a hostile title and to the knowledge of the defendants N03. 6 to 10 and the plaintiffs. It is true that knowledge has got to be found; but it is not necessary that there should be direct evidence of such knowledge. If the circumstances are such that from them inferences as to knowledge on the part of the persons against whom a hostile title is set up are sufficient to lend to the inference that they had such knowledge, it is enough. THE learned District Judge towards the close of his judgment observes that he agrees with the Court of first instance that the circumstances are such as to justify the conclusion that there was a complete ouster of the other co-sharers by the defendants Nos. 1 to 5. This finding, in my opinion, involves the requisite finding as to knowledge. A number of decisions of this Court have been cited before us in the course of the argument viz., the decisions in the cases of Balaram Guria V/s. Syama Charan Mandal 60 Ind. Cas. 298 : 24 C.W.N. 1057 : 33 C.L.J. 344, Jogendra Nath Mukherjee V/s. Rajendra Nath Bhattacharji 68 Ind. Cas. 200 : 26 C.W.N. 890 : A.I.R. 1922 Cal. 54 Jagannath Marwari v. Chandni Bibi 67 Ind. Cas. 31 : 26 C.W.N. 65 : 34 C.L.J. 432 and Joynarain Sen Ukil V/s. Suchitra Debya 65 Ind. Cas. 8 : 26 C.W.N. 206 : 33 C.L.J. 592 : A.I.R. 1922 Cal 8. THE principles laid down in all these cases, so far as this matter is concerned are well-settled. But it is always a question as to the sufficiency of facts from which legitimate inference as to adverse possession may be drawn. As has been laid down in the case of Lokenath Singh V/s. Dhwakeshwar Prosad Narayan Singh 27 Ind. Cas. 465 : 20 C.W.N. 51 : 21 C.L.J. 253 the ouster of the co-tenants in order to render the possession adverse need not be violent or intimidating expulsion or repulsion nor need notice of adverse holding be actually brought home, to the other co- tenants by personal or formal communication; but it is sufficient, if contrary is not proved, that the circumstances show that such knowledge may reasonably be presumed. THE facts are that since 1279 the defendants Nos. 1 to 5 are in possession that they treated the property as their own ignoring the rights of the other co-sharers, that they all along paid rent of the entire mokarrari and lastly there is the fact that there was refusal on the. part of the landlords to accept the rent from, defendants Nos. 6 to 10 although the date of such refusal is not to be found in the judgment. THE cumulative effect of all these facts is irresistible and it goes to show that there was adverse possession by the defendants Nos. 1 to 5 with an assertion of a hostile title. In these circumstances it is not possible for this Court sitting in second appeal to say that the finding of the learned District Judge was wrong. THEre is one other matter to which reference may also be made. It appears from the written statement of defendants Nos. 6 to 10 as also from the judgments of the Courts below that the case which was set -up on behalf of those defendants was that they were in separate possession of the shares which belonged to them, that they had leased out those shares and had been in possession of those shares by collection of rent and at other times by recovery of burga produce. Evidence was given by them in support of that case and that case according to the judgments of the Courts below had failed. It is true that even if that case failed it has to be found that defendants Nos. 6 to 10 have acquired title by adverse possession. But the fact that a case of separate possession of a specified share was set up and that has not been established is important because that shows that in point of fact the appellants before us never made in the Court of first instance a case to the effect that the possession of defendants Nos. 1 to 5 was to be treated as their own possession. In this view of the matter I am of opinion that the. decree passed by the lower Appellate Court is correct and that these appeals should be dismissed with costs. Suhrawardy, J.

(2.) I agree.