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. Somappa Tamangavdamt I.L.R.(1909) Bom. 669: 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. 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. Collector of Khulna (1900) L.R. 36: 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. Secretary of State for India I.L.R. (1901) Bom. 410: 4 Bom. L.R. 28.
4. Having regard to the circumstances of this case, we think that Chimnaji did not acquire any title by adverse possession as a tenant-in-common with regard to the undivided one-half share.
5. We, therefore, reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with costs throughout.
6. Defendants-respondents Nos. 5 and 6 have filed cross-objections only with regard to the costs. They did not appeal to the lower appellate Court but merely filed cross-objections on the question of costs, The learned District Judge did not interfere with the order as to costs so far as defendants Nos. 5 and 6 were concerned. We would, therefore, dismiss the crossobjections with costs.
7. The point in this appeal is one which has never apparently arisen before and is not likely to arise again. It has been found by both the Courts below that Chimnaji the son of Narayan was born before his father's adoption by Balaji. Consequently under the Hindu law he remained in his father's natural family. Narayan, after his adoption by Balaji, had another son Raghunath who is defendant No. 4 and is also plaintiff's father. But by a mistake of law Raghunath treated Chimnaji as a co-sharer in his adoptive family and he took a half share in the property and alienated a portion of it.
8. As Chimnaji was in law a stranger to the family into which his father Narayan had been adopted he could not be a co-sharer in the property of that family and the District Judge was right in finding that his possession under the above noted arrangement was that of a tenant-in-common, and the question in this appeal is whether his possession of the one-half share was adverse to that of Raghunath or in other words whether Raghunath alienated a half share to him and the plaintiff Keshav can now claim to set aside that alienation. This is a very unusual point on which there is no authority nor is it exactly covered by any of the numerous rulings on the point of adverse possession. I think, however, that in order to acquire a title by adverse possession a person must assert a title against the true owner, which is not at all the case here. There is no question of any assertion of a title against a person who denies it nor any question of an exclusion.
9. Looking at the case from the other aspect dealt with by the learned District Judge, namely, that Raghunath alienated a half share of the property to his brother Chimnaji, I do not think that the question of alienation can arise unless one person knowing the result of his action parts with his title to the property in favour of another person who but for such alienation would not have any title to it. In the peculiar circumstances of the present ease, it appears that Chimnaji did not set up any right adverse to that of Raghunath, nor did Raghunath intend to part with any right in favour of a person who would not otherwise be entitled to exercise that right, the case seems to me to be that of a licensee. It is clear that Chimnaji was in possession with the acquiescence of Raghunath and by his leave and this being so no question of alienation or adverse possession would, in my opinion, arise in this case.
10. As I have already said the circumstances of this case are unique and I do not wish to lay down any general proposition, and merely deal with the facts of this particular case, and on those facts I do not find that any title was acquired by Chimnaji and his descendants as against Raghunath, I, therefore, agree that the decree of the lower appellate Court should be reversed and that of the trial Court restored with costs.