John Beaumont, C.J.
1. This is a second appeal from a decision of the Assistant Judge at Satara. The suit was filed on February 22, 1937, and the plaintiff asked for possession of half survey No. 22 by partition. The trial Court decreed the plaintiff's claim, but in appeal the learned Assistant Judge held that the plaintiff's suit was barred by limitation.
2. The property originally belonged to one Balkrishna Umbrani, who died, leaving as his heirs two daughters, Gaya and Durga. Durga married one Janardhan and died in 1914; and Janardhan was her heir, through whom plaintiff claims. The defendants claim under Gaya. In 1924 by suit No. 184 Janardhan as the heir of Durga sued Gaya for partition of the suit survey number and another survey number, which I need not deal with, and a decree was made on October 16, 1924, for partition of survey No. 22. That decree being more than twelve years before the filing of the present suit in February 1937, various points arise.
3. The first point relates to limitation, and it is suggested that on the authority of the decision of this Court in Mir Akbarali v. Abdul Aziz (1920) I.L.R. 44 Bom. 934 which was followed in Rakhmabai v. Ramchandra (1920) 23 Bom. L.R. 301, even though at the date of the decree in 1924, Gaya may have been wrongfully in possession of the whole property, the effect of the decree was to break her possession so far as it was adverse to the plaintiff, and that that break continued, at any rate, beyond February, 1925. In Mir Akbarali v. Abdul Aziz Sir Norman Macleod does appear to have held that, where a purchaser is in possession of property, and a decree is passed showing that his possession is wrongful, the trespasser will be so impressed with the sanctity of the Court's order that he will cease to hold adversely to the true owner, and if he continues in possession, he will do so, presumably, as a sort of trustee for the true owner, but that after a time he may recover his courage, and his possession may again become adverse. The actual words in which this singular doctrine is propounded are (p. 919):--
But we cannot presume since the decree was passed by the High Court on the 7th July 1896 that the plaintiffs in this suit determined at once to hold adversely to the successful party, and in effect in contempt of the decree of the High Court. It is quite possible after the decree had been passed, and after the successful party was so remiss in seeking to execute it, the plaintiffs might have gathered fresh courage, and might have, after a certain period had elapsed from the date of the decree, determined to set up again a title in themselves against the successful party in that suit.
4. The doctrine seems to be based rather on psychological than on legal grounds, and at once introduces into the law of limitation an element of uncertainty as to how long the trespasser will remain in a state of nerves. That would, presumably, depend on the measure of respect which he entertains for the decree; and perhaps the period might be longer in the case of a decree of a High Court than in the case of a decree of a subordinate Court. The doctrine finds no support in the Limitation Act, and it has recently been held by a bench of this Court in Bhogilal v. Ratilal (1938) 41 Bom. L.R. 497. that the doctrine is no longer good law, having regard to the decision of the Privy Council in Subbaya v. Muhammad : (1923)25BOMLR1275 , , where their Lordships observe that when a trespasser is in possession. and the Court makes a declaration showing that his possession is wrongful, that does not affect the quality of his possession, but merely advertises the fact that it is adverse. I would say that I quite agree with the view expressed by this Court in Bhogilal v. Ratilal that the effect of that decision of the Privy Council is to show that the doctrine enunciated in Mir Akbarali v. Abdul Aziz, followed in Rakhmabai v. Ramchandra, is no longer good law, though on any view of the facts, the question does not really arise in this case.
5. Now, Gaya and Janardhan as the heir of Durga were tenants-in-common, being joint heirs of the father, and in 1919 they filed a suit against a third party claiming as joint owners. It does not, I think, matter whether they were joint tenants or tenants-in-common, but the passage in Mulla's Hindu Law, 9th edn., at p. 23, Section 31, suggests that they were tenants-in-common. In the suit of 1924 Janardhan alleged that Gaya had been in sole possession of the property for the last three years, because he had been absent on Government service, and he claimed an account of the rents and profits for those three years. Whether one tenant-in-common is entitled to an account against another tenant-in-common in the absence of ouster, may be doubtful. But, at any rate, the learned Judge in that suit did pass a decree in favour of the plaintiff for a half share of the income of the property during the three years before the suit and for mesne profits from the date of the suit till delivery of possession. But it is to be noticed that in that suit the plaintiff did not claim that he had been ousted, and did not ask for mesne profits prior to the suit. All that he claimed was that his co-tenant had been receiving the rents and profits and had not paid his share to him, and on that basis, rightly or wrongly, he was held entitled to a share. But in order that the possession of one tenant-in-common may be held to be adverse to his cotenant, it must be shown that the co-tenant has been ousted. Prima facie, the possession of one tenant-in-common or joint tenant is the possession of all, and is not to be regarded as adverse to other tenants-in-common or joint tenants in the absence of evidence of ouster. And in this case it seems to me that in the suit of 1924 there was no claim, and no finding, that Janardhan had been ousted, and there is no evidence that Janardhan, and after his death the plaintiff as his son, had ever been ousted. The learned Assistant Judge says:--
In view of the fact that in suit No. 184 of 1924 the respondent's title to the suit property was denied, and taking into consideration that for three years before the suit and for more than twelve years after the suit the respondent was not in possession or enjoyment of the suit property, it is obvious that the respondent's claim is barred by limitation.
But in view of the fact that the parties were tenants-in-common, it seems to me that it is not obvious that the respondent's claim was barred by limitation, and, in the absence of any evidence that the respondent was ousted from the property, it is not, in my opinion, right to hold that the plaintiff's title is barred by limitation.
6. Then it is said that the case is barred by res judicata or by Section 47 of the Civil Procedure Code. Both those grounds of attack against the suit depend on the nature of the decree passed in 1924. If it was a decree determining a right to partition, which could have been executed, then, no doubt, the case would fall under Section 47. But in Jagu v. Balu, a preliminary decree directing that the plaintiff was entitled to partition was held to be a merely declaratory decree which, if not subsequently enforced, would not debar the plaintiff from filing a fresh suit, and that Section 47 would not apply to such a case. The property in this case was, I gather, property which paid revenue to Government, and, if so, as held by this Court in Jacinto v. Fernandez, the Court had made the only order, which it was competent to make, in directing that the plaintiff was entitled to partition, and the matter then rested with the Collector to effect partition. Whether the decree of 1924 be regarded as a declaratory decree, or as the final decree of the Court, there was nothing for the parties to do in execution, and Section 47 does not apply. So far as res judicata is concerned, there is really no substance in the point, because if the decree of 1924 was a final decree deciding the rights between the parties, and if the only difficulty was that the Collector had not performed his duties, there is nothing to prevent him from performing his duties now; and if it was a declaratory decree, it was not a decree finally decided within Section 11, and that section is not a bar to the filing of a fresh suit.
7. I think, therefore, the learned Assistant Judge was wrong in saying that the plaintiff's suit was barred by limitation, but right in holding that it was not otherwise barred.
8. The appeal, therefore, must be allowed with costs here and in the lower Courts, and the plaintiff's suit decreed.
9. I agree.