KESHAV RAGHUNATH DESHPANDE Vs. GOVIND CHIMNAJI DESHPANDE

JUDGEMENT

(1.) [His Lordship, after setting out the facts as above, proceeded:] On second appeal, it is urged that the lower appellate Court has made out a new case which was not made by the defendants either in the pleadings or in the evidence in the trial Court, that the possession of Chimnaji was not adverse with regard to the undivided one-half share as a tenant-in common, and that the defendants having failed on the points, first, that Chimnaji was born after the adoption in 1855, and, secondly, that plaintiff did not bring this suit within three years after his attaining majority, the lower appellate Court ought to have decided in favour of the plaintiff.

(2.) We think the lower appellate Court ought not to have raised new points in appeal which were not raised by the defendants in the trial Court. The principal question, however, in this appeal is whether Chimnaji acquired a title by adverse possession as a tenant-in-common with regard to the undivided one-half share. It appears from the evidence and the pleadings that Chimnaji and Raghunath, being the sons of Narayan, lived together and managed the property belonging to Balaji's branch, and that Chimnaji and Raghunath both were labouring under an erroneous impression till the decision of the High Court in Kalgavda Tavanappa V/s. Somappa Tamangavdamt (1909) I.L.R. 33 Bom. 669, s.c. 11 Bom. L.R. 797 that Chimnaji was entitled to a half share in the property of Balaji a branch. It is clear, however, that Chimnaji, being born before the date of the adoption of Narayan in 1855, remained in his natural family and had no rights in the property belonging to Balaji's branch. Raghunath, therefore, allowed Chimnaji to remain with him, and to enjoy the property with him under a mistake of law, If Chimnaji had been a stranger and had entered into possession of Raghunath's proparty, the matter would have been different. Even if Raghunath and Chimnaji had effected a partition of the property in their possession, and Chimnaji had remained in possession for more than twelve years before the birth of the present plaintiff, the case would have stood on a different footing. It appears, however, that Chimnaji and Raghunath lived together as they were the sons of Narayan. The possession of Chimuaii was not forcible but was with the consent of Narayan and Raghunath. The fact that a stranger takes possession of a property under a mistake common to all, does not make his possession any the less adverse, see Purshotam v. Sagaji (1903) 5 Bom. L.R. 674; but, in the present case, Chimnaji and Raghunath, being the sons of Narayan, all along remained in possession of the property with the tacit acquiescence and consent of each other. It is, therefore, difficult to hold that there could, under such circumstances, be any adverse possession on the part of Chimnaji as against Raghunath with, regard to the undivided moiety of the property. According to the decision in Kuthali Moothavar V/s. Peringati Kunharankutty (1921) 24 Bom. L.R. 669, p.c. adverse possession must be adequate in continuity, publicity and extent so as to show that it is possession adverse to the competitor. It is observed by their Lordships of the Privy Council (p. 674) : When the holder of title proves...that he too has been exercising during the currency of his title various acts of possession, then the quality of these acts, even although they might have failed to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from any person challenging by possession the title which he holds.

(3.) In Radhamoni Debi V/s. Collector of Khulna (1900) L.R.I.A. 136, s.c. 2 Bom. L.R. 592 it was held that to constitute title by adverse possession, the possession retired to be proved must be adequate in continuity, in publicity, and in extent, and is displaced by evidence of partial possession by the real owner. In the present case, Raghunath was in possession of the property and it cannot be said that he was excluded with regard to the whole or any portion of the same though Chiranaji was allowed to be in joint possession with him as his brother. See also Vithaldas V/s. Secretary of State for India (1901) I.L.R. 26Bom. 410, 416, s.c. 4 Bom. L.R. 28.