JATAN THAKUR Vs. ALI JAN MIA

JUDGEMENT

(1.) This is an appeal under Clause 10, Letters Patent, from the decision of a Single Judge of this Court in a partition suit. The plaintiff is the purchaser of a share in certain property from one Raghu Thakur, the son of Adya Thakur. He instituted the suit for partition on the allegation that he was in joint possession of the property, alleging that joint cultivation was found difficult and that this led to disputes. It appears from the findings of the Courts below that neither the plaintiff nor his vendor were ever in possession of the share of which partition is claimed. Many years ago Adya Thakur and his brother Bir Thakur were entitled to a share of one-third in their joint family estate part of which constitutes the property of which partition is claimed while the remaining share was held by other members of the family. The three branches represented by Adya Thakur, Bir Thakur and the third branch all-separated from one another. Adya Thukur's share was sold in execution of a decree and he left the village, while Adya's brother, Bir Thakur, continued to enjoy the property as tenant-in-common with Jatan and other members of the third branch. Bir Thakur died more than 12 years before the institution of the suit. He was not joint with his nephew Jatan, but merely holding as tenant-in-common with him, so that his interest would have devolved on his reversioners, the sons of his brother Adya, one of whom is the plaintiff's vendor; but these reversioners obtained no possession over the property: and the trial Court found that the plaintiff's claim to possession would be batted by limitation. The District Judge, accepting the findings of fact of the trial Court held that as the plaintiff was not in possession of the share which he claimed, he could not succeed in a suit for partition; and he, therefore, confirmed the decree of the trial Court and dismissed the appeal.

(2.) The learned Judge of this Court thought that it had been found that the family was joint, being apparently under the mistaken impression that this was the finding of the Courts below. If Raghu Thakur, the son of Adya Thakur, had been joint with Bir Thakur and Jatan, then after the death of Bir Thakur possession by the co-sharer Jatan would have been possession on behalf of other co-sharers, and adverse possession of the defendants could not have been proved unless there held been some definite act of ouster. But the findings of the Courts below are that all three branches of the family were separate so that Jatan, although he was tenant-in-common with Bir Thakur, has at no time been tenant-in-common With Raghu who had neve enjoyed any possession from which he could have been ousted. Apart from the question of whether he might have been entitled to refiover possession, we have the fact that his allegation in the plaint that he was in actual possession has been found to be false, and that he could not succeed in a suit for partition unless he first recovered possession of the share which he claimed. I would set aside the decree of the Judge of this Court and allow this appeal dismissing the plaintiff's suit, with costs throughout to the defendants first party. Courtney-Terrell, C.J.

(3.) I agree.