1. The plaintiffs sued the defendants from partition and possession of their one-fifth share in the lands in suit at Nagaon and Davale. The plaintiffs and the defendants are the descendants (sons) of three out of the five sons of Hari. In the first Court defendants Nos. 5 and 6 supported plaintiffs' claim which was contested by defendants Nos. 1 to 4 almost entirely on the ground that the plaintiffs' title was barred by time inasmuch as neither they nor their father had ever had possession of the land in suit. It was also contended that there was other joint family property which should be brought in suit. The first Court awarded plaintiffs' claim, and on appeal its finding was confirmed by the Joint Judge of Thana. The defendants Nos. 1 to 4 make this second appeal. The only points taken in the appeal are, first that the suit is barred by res judicata under Section 11, Sub-section 4 of the Code of Civil Procedure, and, secondly, that it is barred by adverse possession or by limitation, the plaintiffs having been excluded from any share in the property in suit. It is not disputed that the plaintiffs as one of the five sons of Hari would be entitled to one-fifth share in the property in dispute.
2. It seems that there was a partition between the brothers in 1875 which is evidenced by Exhibit 21. At that partition some property including the property in suit was left undivided. I use the word undivided in preference to the word joint because in law the position of the parties is that of tenants-in-common and not joint tenants.
3. The question of res judicata arises in this way. In 1921 the present defendants Nos. 1 to 4 brought suit No. 85 of 1921 against the heirs of Baja, that is defendants Nos. 5 and 6 and the present plaintiff's who are the sons of Ravji, for partition of their share of certain land, Survey No. 14, Pot No. 3. It is contended on behalf of the appellants that under Section 11, Clause 4, of the Civil Procedure Code, the present plaintiffs who are defendants in that suit should have as part of their defence put forward the present claim for the partition of the remainder of the family property and had it decided in that suit and not having done so they are now barred from bringing a separate suit to recover their share in this property. As a matter of fact in their written statement, which is Exhibit 26 at page 25, defendant No. 2, who is present plaintiff No. 1, said that there was other property, namely, the property which is now in dispute in the present suit, which was kept joint and should be included in the suit and partition of the whole land should be made. It will, therefore, be seen that the present plaintiffs did raise this ground but there was no decision on this point and hence it is claimed that they cannot now raise the question again presumably on the ground that any relief which is not granted by the decree should be considered to have been refused, and in support of the proposition that the present suit is barred the learned advocate for the appellant has relied on Kameahwar Pershad v. Rajkwmari Ruttan Koer I.L.R.(1892) Cal. 79. and Gangaihar v. Parasharam (1905) Bom. L.R. 252. In Kameshwar Pershad v. Rajkumari Rattan Koer which is a Privy Council case, the plaintiff had brought two successive suits practically on the same causa of action to recover the same relief. In the first suit he sued the reveraioner as being in possession of the property chargeable with the debt due by the widow. That suit was dismissed as against him but decreed against the widow. Subsequently he brought the present suit claiming to recover from the reversioner the balance of the widow's debt on the ground that he had agreed, on taking the surrender of the estate from her, to become responsible for her debts, It was held that this was an alternative ground which he might have alleged in the former suit. Hence the present suit would not lie.
4. The other case Ukha v. Daga I.L.R(1882) . 7 Bom. 182 was one in which the plaintiffs had brought a suit for partition of certain debts and the second suit was brought for partition of certain lands which were alleged to have been left for subsequent division at the time of the former partition. It was held that the plaintiffs were bound in their former suit to demand the partition of the whole property which remained undivided; and having intentionally omitted to do that, they were barred under what is now Order II, Rule 2, Civil Procedure Code.
5. The position of the parties in this casa after the partition was that of tenants-in-common as regards the property which was left undivided as is shown by the ruling in Dagadu v. Sakubai : AIR1924Bom31 which overrules the case in Gavrishankar I'arabhuram v. Atmararn Rajaram I.L.R(1883). 18 Bom. 611 on which the appellant relies. Although in the case of a joint family a person suing for partition must sue for partition of all the property I am not aware that there is any law by which a tenant-in-common seeking to recover possession of property left undivided and in possession of other tenanta-in-common is bound to include all these properties in one suit. Moreover in the present case it will he seen that by his written statement the present plaintiff No. 1 asked that the other properties might be included in that suit in partition. Thereafter the plaintiff in that suit, that is, the present defendants Nos. 1 to 4, agreed to the addition of this property provided defendant No. 1, who was the father of defendants Nos. 5 and 6 in suit, was willing to allow the property in his possession to be partitioned. The defendants in that suit, that is, the present plaintiffs, agreed to these properties being joined by the plaintiffs but for aome reason or other the plaintiffs did not do so and nothing was done in the matter.
6. It is further contended that Section 11, Sub-section 4, only refers to matters which should be made a ground for defence or attack in such former suit and as the defendants in that suit had no objection to the plaintiffs getting one-fifth share in the property it was not necessary to bring in the other properties into the suit. Even supposing the parties had been still members of the joint family, it is open to doubt whether this suit would have been barred by res judicata in view of the fact that the present plaintiffs did attempt to have the properties now in suit brought into that suit but for some reason or other failed to do so. In ray opinion the case is not that of a joint family nor is this a suit in which a member of a joint family seeks partition of property which is being left undivided by a former partition.
7. The rulings of the Privy Council in Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 18 Bom. L.R. 621 and Bagadu v. Sahubai : AIR1924Bom31 show that where the parties have agreed to sever, the joint family ceases then to exist, This is applicable to the present case, for in the partition deed which was executed between the fathers of the parties to this suit they stated that they are unable to pull on together and are therefore dividing the property but for some reason or other certain properties were not actually divided at that time. In view of this evidence of their intention to sever, the joint family ceased to exist and in respect of those properties which were not divided at the time they must be held to be as tenants-in-common. They were not compelled to ask that all the properties remaining undivided should be divided when a suit was brought by one tenant-in-common to recover his proportionate share of the property. I hold, therefore, that the suit is not barred by res judicata.
8. The second point, which has been raised, is that the suit is barred by limitation the defendants having excluded the plaintiffs from participation in the profits of this property. The property in question is very small the income only being a few rupees. The first Court has held at paragraphs 14 and 15 of its judgment that the plaintiffs were not excluded. In paragraph 14 it says :
I believe more in the plaintiffs' statement, though it is not corroborated by any evidence except that of the defendants Nos. 5 and 6.
And in paragraph 15 it goes on to say that:
In the case of co-sharers when there is no partition between them, sole occupation by one of them of the joint property is not) prima facie inconsistent with the rights of the others and mere non-participation in the profits by one and exclusive possession and enjoyment of the joint property by the other, is not adverse possession creating an exclusive title. There must be a disclaimer of the rights of others by an open assertion of a hostile title on the part of the oo owners claiming exclusive title by adverse possession and notice of disolaimer to the other sharera, either direct or by open acts and circumstances, is necessary. There is no evidence to prove that defendants Nos. 1 to 4 or their father ever openly claimed to be the exclusive owners of the lands.
9. The view of the Subordinate Judge appears to be based on the supposition that they continued to be co-sharers as regards lands undivided at the partition. IE by co-sharers is meant members of a joint family, it is not correct, but the position in law as regards exclusion is the same as in the case of tenants-in-common. The lower appellate Court correctly refers to the members of the family as tenants-in common. Taking them to be tenants-in-common, as they are, the case quoted by the learned advocate for the appellant is Gangadhar v. Parasharam (1905) 7 Bom. L.R. 252 in which it is held that to constitute an adverse possession as between tenants-in-common there must be an exclusion or an ouster. Exclusive receipts of profits by one tenant-in-common continuously for a long period would be sufficient evidence to presume an actual ouster of the other tenants-in-common. And the period of exclusion there was about fifty years. But in the present case the lower appellate Court appears to have accepted the view of the first Court that the plaintiffs should be believed when they say that they have received profits of the land in question. The laud in suit appears to have been in the possession of Waman, father of defendants who died in 1917, the suit being in 1921 And if the plaintiffs ware given their share by Waman there would be no adverse possession under the statutory period counting from his death.
10. In Chandbhai Mahamadbhai v. Hasanbhai Rahimtoola Bom. L.R. 1023 it was held that the sole possession by one of two joint owners itself is no evidence of the denial of his right of the other joint owners, and time doss run against the joint owner out of possession until the joint owner in possession has done some act to the knowledge of the other which amounts to denial of the latter's right. It may be mentioned that the joint owners referred to in this ruling are not membars of a joint Hindu family of also Gobinda Chandra Bhattacharjee v. Upendra Chandra Bhattaoharjee I.L.R.(1919) Cal. 274.
11. In the present case there does not appear to be evidence of any act done by the defendants to the knowledge of the plaintiffs which amounts to a denial of their right. And the Courts below have believed that the plaintiffs have participated in the income of the land which, as I have said, is very small.
12. There is another point which has been referred to by the learned Judge in his judgment in appeal and that is that in the suit of 1921 which was only three years before the present suit no objection was raised by the present appellants-defendants, then plaintiffs in that suit, to the claim of the present plaintiffs to have the remaining property partitioned. It appears, therefore, that the question of setting up adverse possession did not suggest itself to them in 1921. It is only set up for the first time in the present suit in 1924.
13. In these circumstances I agree with the view of the Courts balow that the defendants did not show that the claim of the plaintiffs is barred by exclusion for more than the statutory period. In view of the rulings I have just referred to in Chandbhai Mahamadbhai v. Hasanbhai Rahimtoola and Gobinda Chandra Bhittacharjee v. Upmdra Chandra Bhattacharjee, in order that a co-sharer or tenant-in-common should be excluded from his share in the property, it is necessary to show that some act has been done by one co owner be the knowledge of the other which amounts to a denial of the latter's right. I think the onus would lie on the defendants to prove their adverse possession, It is found that they have not discharged it and I must hold that the exclusion of the plaintiffs is not proved. The result is that the decree of the lower Court will be confirmed and the appeal dismissed with costs.