DEONATH SAHAY Vs. LEKHA SINGH

JUDGEMENT

(1.) This second appeal is preferred by the plaintiff-appellant. He started the suit for partition of his purchased one-third share in lands comprised in khatas Nos. 79 and 80 of village Mohamadpur tauzi No. 3666. The sale deed effecting this purchase was executed by defendant 12, Dwarka Singh, son of Bansi deceased, on 12 May 1939. The plaintiff's claim was resisted by defendants 1 to 11, who are members of the same family as Dwarka. Admittedly defendants 1 to 11 are the heirs and successors of Bansi's three brothers Lekha Singh, Tota Singh and Chulhan Singh. The defendant's case is that Bansi alone out of the four brothers separated and, by an arrangement agreed to between them, migrated from Mohamadpur to another village by name Eknar giving up his interest in the lands of Mohamadpur in lieu of some lands at Eknar. In the alternative, it was contended that at any rate for more than statutory period defendants 1 to 11 and their predecessors-in-interest had been in exclusive possession pf the land appertaining to the khatas mentioned above and thus had acquired a right by adverse possession, or at any rate, Dwarka, a congenital cripple, acquired no interest in the joint family estate left by Bansi and bad no interest to convey to the plaintiff by the sale deed.

(2.) The plaintiff, therefore, was not entitled to any relief. Both the learned Courts below came to a finding that the family arrangement pleaded by the defendants was not established. Bansi was recorded in respect of the disputed khatas along with his three brothers in the record of rights, the presumption of correctness whereof, it was concurrently held by the Courts below, had not been rebutted. Similarly also the story of adverse possession was ruled out as not proved. The learned lower Court has observed in this connection: As regards Bansi Singh, however, the defendant's own evidence indicated that he was in possession jointly with the other defendants. He admitted the survey entry to be correct. It was also admitted that he came to Mohamadpur during survey operation. The possession of Bansi Singh in relation to the defendants was that of a co-owner and the learned Munsif is right when he says that unless, a Case of buster was made out the plea of adverse possession or limitation could not prevail, I also agree with the finding of the learned Munsif that the defendants did not place any case of ouster and consequently there was no limitation or adverse possession.

(3.) It will not be put of place to quote the passage of the learned Munsif with which the lower appellate Court agreed as shown above. He said: Although the evidence on the side of the plaintiff as to Bansi's possession is not very strong it would seem from the khatian Ext. 6 that Bansi was one of the co-sharers of the land of khatas 79 and 80 of Mohamadpore along with Lekha and others. Consequently the possession of Lekha and others over the land would be tantamount to possession of all interested co-sharers on the basis of the well recognised principle of law that the possession of co-sharer is possession of all interested, except where ouster is established by cogent and satisfactory evidence although it is not so before me. Dwarka's position must be same as of his father in regard to the question of possession over the lands of khatas Nos. 79 and 80.