BISWANATH CHAKRAVARTI Vs. RABIJA KHATUN

JUDGEMENT

(1.) The only question argued in this appeal is the question of limitation. The plaintiff, now appellant, purchased in execution of a money decree against Khadim Ali the laud in suit on 8th December 1909. The sale was made absolute on 14 January 1910 and symbolical possession was taken on 2 March, 1913. The defendants, now respondents were cosharers with Khadim Ali in the disputed land. They contend that the present suit is barred by limitation as it was not instituted within 12 years from the date of sale. The Munsif held that there was no allegation in the plaint that Khadim Ali was in possession of the disputed land jointly with the defendants and found the iasue of limitation against the plaintiff and dismissed his suit. On appeal the learned District Judge of Chittagong held that time should begin to run from the date of the sale and not from the date of delivery of symbolical possession as was conttended for by the plaintiff. The learned District Judge dismissed the appeal. Art. 138, Schedule 1 to the Limitati on Act cannot govern the present case as the article applies only against judgment- debtors and persons claiming through them. The defendants in the present case do not claim through the judgment debtor Khadem Ali, so Art. 138 does not apply. Art. 144 which is the residuary article applies and the question arises as to when the possession of the defendants became adverse to that of the plaintiff. It is argued by the learned vakil for the appellant that as the possession of the defendants was possession on behalf of their cosharer Khadim Ali at its inception it did not become adverse till the plaintiff who had stepped into the shoes of Khadim Ali was resisted in obtaining actual possession. In other words it is said that the possession became adverse from the date of the delivery of symbolical possession.

(2.) In my opinion this contention is not sound for the same rights and privileges which a cosharer has as against his other cosharers are not enjoyed by his assignee. It is true that in the case of a cosharer the possession of one cosharer is the possession of all and that if one of them sets. up a prescriptive title against the others he must prove that his possession was openly hostile but it is diffieult to understand how an assignee can by mere fact of assignment become a cosharer if his rights are denied by the other cosharers. It is beyond controversy that if the assignor has not transferred possession of the property assigned to his assignee the latter in order to succeed in a suit for possession must sue within 12 years from the date of his assignment and that a suit against his assignor would ba barred if ha comes into Court after that period. It would seem logieally to follow from this position that the claim which would be barred against the assignor would also be barred against the other cosharer for otherwise an absurd position would be created. It would indeed be absurd to hold that a claim which would obviously be barred against the assignor would not be barred if brought against the other cosharers who do not even recognize the right of the assignor to assign in favour of a third party. This view reoeives indirect support from the casa of Bhivrao V/s. Rukmin [1899] 23 Bom. 137 (F.B.). Adverse possession depends open the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested whether in a single parson or in many jointly. Adverse possession is possession by a person holding the land on his own behalf or on behalf of some person other than the true owner. See the observations of Markby, J., in the case of Bejoy Chunder Bannerjee V/s. Kali Prosonna Mukherji [1879] 4 Cal. 327. Although the possession of the defendant was not adverse to that of Khadim Ali it became advsrse to the plaintiff for it was possession on behalf of some person other than the true owner.

(3.) The ownership had passed on the date of the sale from Khadim Ali to the plaintiff and defendants possession was adverse possession to that of the plaintiff from the date of the sale, for even if he was holding possession for Khadim Ali, ha was holding possession on behalf of some person other than the true owner for Khadim Ali's right had been extinguished by the sala either from the date of the sale or from the date when the sale became absolute both of which happened more than 12 years before suit.