AMRITA RAVJI RAO Vs. SHRIDHAR NARAYAN OKE

JUDGEMENT

(1.) The facts upon which the question of adverse possession, arising on the second appeal, turns, are found and stated as follows in the judgment of the lower appellate Court: The plaint-land (S. No. 17, Pot No. 1) along with other lands was originally the joint property of two brothers, Gangadhar and Damodar. One Narayan, the father of the plaintiffs, obtained a decree in Regular Suit No. 735 of 1873 against Damodar on a mortgage-bond; and in execution of that decree, in Darkhast No. 699 of 1875, ho brought the property to sale. The property was purchased by Vishnu Ganesh. The suit had been instituted by Narayan against Damodar as Manager of the joint Hindu family. Gangadhar, however, obstructed the purchaser, Vishnu Ganesh, in taking possession, whereupon the latter instituted Regular Suit No. 178 of 1877 against Gangadhar to remove the obstruction. The District Court decided in appeal in that suit that Vishnu Ganesh was entitled to recover possession by partition of a moiety of the property. The date of this decision was 29 November 1886 (Vide Exhibit 22). In execution of this decree, Vishnu gave a Darkhast No. 344 of 1894 to recover possession of a moiety. The Darkhast was sent to the Collector for execution, and the Huzur Surveyor, in effecting a partition, handed over to Vishnu possession of the plaint-land (survey No. 17, Pot No. 1) and other survey numbers on 11 December 1895. Exhibit 23 is the possessory receipt passed by Vishnu in token of having obtained possession. On 22 January, 1897, Vishnu sold the property to one Vinayak Mahadeo, and he in turn sold it to plaintiff 1 on 18 March 1898 under a sale-deed, (Exhibit 16). That is the title deed under which the plaintiff claims. Meanwhile, on 4 October 1894, Gangadhar has sold the plaint-land to the defendant's father under a sale-deed (Exhibit 26).

(2.) The learned Subordinate Judge, who tried the suit, held that the plaintiff's claim was barred, because the defendant, and before him his vendor, had been in adverse possession from the 29 of November 1886, the date of the partition decree. On appeal by the plaintiff, the learned District Judge, differing from the Subordinate Judge, has held that the period commencing from the 29 of November 1886 and ending with the 11 of December 1895, when the partition was effected by the Collector in execution of the decree, should not be taken into account, because the effect of that decree was to make the plaintiff's predecessor- in-title, Vishnu Ganesh, "virtually a co-parcener with Gangadhar in place of Damodar, entitled to joint possession or rather a tenancy-in-common in the family property," and that the possession of Gangadhar could not be adverse to the decree-holder until the joint tenancy was severed by partition.

(3.) I am unable to agree with the learned District Judge, if by this he means that, where two or more persons hold property jointly as tenants-in-common and one of them is out of possession, the possession of the rest does not in any case become adverse until the property is partitioned. It has been held by a Division Bench of this Court in Bandacharya v. Shriniwasacharya 5 Bom. L.R. 743, on the authority of Lord Denman's remarks in Bully v. Doedem Taylerson (1840) 11 Ad. &. E. 1014, followed in Gangadhar V/s. Parashram 29 B. 300; 7 Bom. L.R., 252, that "to constitute an adverse possession as between tenants-in-common there must be an exclusion or an ouster," and "exclusive receipt of profits continuously for a long period may point to an ouster but the Court must be satisfied that such taking of profits is an indication of a denial of rights in the other co-tenant to receive them." The question of adverse possession depends, therefore, not on a severance of the tenancy-in-common by partition but on exclusive occupation by one co-tenant amounting to an ouster of the other.