ABDUL WAHED Vs. MOHAN BASHI SAHA

JUDGEMENT

(1.) The principal question that arises for consideration in this appeal is whether the findings recorded by the Court of appeal below are sufficient in law to constitute such adverse possession on the part of the defendants and their predecessors as would extinguish the plaintiff's title.

(2.) The parties are cosharers. The District Judge has found that the adverse possession that was exercised on the part of the defendants and their predecessors was hostile and notorious, that all through the period, which was well over twelve years, their rights were asserted, and that the sales made by them in assertion of such rights were attended with considerable publicity. He has found that these sales were overt acts of an unequivocal character to the exclusion of the rights of the plaintiff. On the question whether the plaintiff had knowledge of these overt acts the District Judge has only observed that: if the plaintiff did not know it was simply due to his lack of diligence for which he cannot claim any benefit.

(3.) Now the findings recorded as above by the learned District Judge would seen to suggest that if the possession has been notorious in character and if the overt acts indicative of such possession are unequivocally referable to an assertion of a hostile title to the exclusion -of the plaintiff, such possession is sufficient, even though the plaintiff may not have had knowledge of the ouster, provided that if the plaintiff was diligent he would have known of it. The question in this appeal is whether this is a correct or adequate statement of the law as to the sufficiency of adverse possession for the purpose of extinguishing a cosharer's title. I am of opinion that it is not.