1. This is an appeal by the defendants in a suit for partition between co-owners. The property in dispute consists of portions of two Survey Nos. 110 and 115 at Goregaon near Andheri. The total area is a little more than nine acres, the assessment about Rs. 25. The land forms part of a large estate called the Goregaon Estate, the superior holder or khot of which is Sir Byramji Jijibhoy. The land originally belonged to one Manmohandas and was sold by him in June, 1894, to Dr. Nanji the plaintiff's uncle and the plaintiff. Dr. Nanji sold his moiety to one Soonabai in May, 1895. She died about 1916. Her heir was her daughter Meherbai who was married to Manekji, first cousin of the plaintiff. Meherbai in turn was succeeded by her daughter defendant No. 1. Defendant No. 2 is her husband, So that the plaintiff and the defendants are cousins. The defence to plaintiff' s suit for partition, which was brought in March, 1939, was a denial of the plaintiff's title and also adverse possession.
2. The trial Court found that plaintiff's title was proved and that adverse possession was not proved and made a decree declaring the plaintiffs right to an undivided half share in the land together with the structures erected thereon and directing the Collector to make a partition. In view of the fact that the defendants had erected the structures and spent money on improving the land, the plaintiff was not allowed any account of the income, but the property was ordered to be divided as it stood at the date of the suit without compensation to the defendants for the improvements.
3. In this appeal the principal question is that of adverse possession. Before dealing with that I may mention what the revenue records say about the land. In the Record of Rights and the khot's books, i.e. the records based on the Record of Rights kept at the office of the Goregaon Estate, the plaintiff and Soonabai were shown as joint occupants in 1914-15. Presumably that was in accordance with the earlier records though these are not produced. After Soonabai's death Manekji the husband of her daughter was entered as the sole occupant 'by purchase.' This entry, it appears, was contrary to the facts. In reply to a notice sent by the plaintiff before the suit the defendants alleged that Manekji had purchased the plaintiff's share and the plaintiff says that he was shown a draft of a sale-deed in Manekji's handwriting. But it is admitted that there was no regular sale-deed executed. Manekji therefore had no legal right to the property at all. His wife was the owner of a half share in it. However, Manekji's name continued to be shown as the sole occupant even after his death which took place in 1920 or 1921. In April, 1923, defendant No. l's name was entered as occupant apparently as heir to Manekji and in December, 1923, defendant No. 2's name was entered along with hers at her request.
4. Part of Survey; No. 113, adjoining No. 115, was purchased by the plaintiff about 1900. The plaintiff alleges, and the statement is supported by the knot's books, that the defendants have been paying the assessment of this land amounting to about Rs. 6 a year on the plaintiff's behalf.
5. It is common ground that the plaintiff has never had possession. Why he bought the land is not clear and he does not seem to know himself. He lived in Bombay and had a hotel at Apollo Bunder until he sold it in 1926. For ten years after that he says he was busy with litigation in the High Court. He went for a picnic on the land in 1912 or 1913 with his uncle Dr. Nanji and that was the only time he went near it until shortly before the suit. He says he used to send his mali to look at the land every now and again, but he has not examined the mali as a witness. He admits that he never received any share of the income from Dr. Nanji or Soonabai or Manekji. On one occasion he says defendant No. 2 sent him Rs. 32 for his share of the income. But his evidence about this is very unconvincing and it is pretty clear that he has never had anything from the defendants either. The plaintiff can hardly have forgotten the fact that he owned this land, but apparently he thought it was not worth bothering about and left it, along with Survey No. 113, to be looked after by his relations, the defendants and their predecessors.
6. Until recent years it seems probable that there has been little income derived from the land. Some paddy is grown which is cultivated by tenants on the half share system. There are also some toddy palms and mango trees. Some of the mango trees were planted by defendant No. 2. He has made a number of improvements, enclosing the fields with a stone wall, repairing the well and making a storage tank and erecting a cottage. Two small portions of the land have recently been let out for quarrying purposes and this appears to be very remunerative. There can be little doubt we think that the plaintiff came to know that the property was producing a good income and that led him to put forward his dormant claim.
7. The parties being co-owners the possession of the defendants and their predecessors can only be adverse to the plaintiff if it amounts to ouster. There has admittedly been exclusive enjoyment, but the question is whether it amounts to an ouster by the defendants of their co-owner. We are not satisfied that there has been any actual denial of the plaintiff's title. In fact the defendants have stated that they were not aware that the plaintiff had any title and on the assumption that these relations never met and talked about the land that may be true. Possession no doubt may be adverse even though the person in possession does not know who the real owner is, if his possession is manifestly hostile to the owner whoever he may be. But the general rule is that in the case of co-owners mere exclusive possession and enjoyment is not enough to constitute adverse possession.
8. The learned trial Judge has relied on the fact that in certain of the entries in the revenue records Manekji was described as a vahiwatdar. We think, however, that this argument is based on a misunderstanding. It is true that for a time in Manekji's period of occupation he was shown as vahiwatdar of two small portions of Survey; No. 115 amounting altogether to about four gunthas (see exhibit 39). 'But comparing this with exhibit 38 it seems that about 1916 or thereabout the khot was claiming an interest in these small portions and that was why Manekji was shown as the vahiwatdar. Apparently it had nothing whatever to do with the plaintiff.
9. The learned trial Judge has also relied on the fact of the payment by defendants of the assessment of Survey No. 113 which admittedly belongs to the plaintiff. The evidence about this is not as satisfactory as one might have expected. It is (true that the documents evidencing the payment of this assessment were not put in by the plaintiff until after defendant No. 2 had been examined. Therefore he had no opportunity of saying anything about them. But the plaintiff in his evidence had asserted the fact that defendants were looking after this land and paying the assessment and defendant No. 2 has not said anything) about it. However, there seems to be no justification for the inference which the trial Judge has drawn that the assessment must have been paid out; of the income of the suit lands. That may 'or may not be so. It seems equally likely that the small amount of Rs. 6 a year may have been earned in some way or another out of Survey No. 113.
10. Learned counsel for the appellants has laid stress on the fact that Manekji was shown as the purchaser of the land. As already mentioned, that entry was mistaken. Although entries in the Record of Rights do raise a presumption in favour of the correctness of the entries, the presumption is rebuttable, and in the present case the entries are clearly wrong because Manekji was not the purchaser. No doubt if it could be shown that the plaintiff was aware of these entries inconsistent with his title, that would support the defendants' case of adverse possession. But there is no evidence whatever on record to show how or why the plaintiff's name was omitted from the record, and we think it is impossible to presume that he must have known about it. His interests were in Bombay. There was no particular reason why he should go out to Goregaon, and, as there is nothing to contradict his statement that he found out about the Record of Rights entries only in 1937, we think that must be accepted.
11. The result is therefore that there is nothing to support the defendants' claim of adverse possession except the one fact that they and their predecessors have been in exclusive enjoyment of it since the purchase of the land by Dr. Nanji and the plaintiff in 1894. Their Lordships of the Privy Council pointed out in Hardit Singh v. Gurmukh Singh : (1918)20BOMLR1064 , P.C. that the phrase 'exclusive possession', when used in connection with joint property, has an equivocal meaning (p. 1065) :-
If by exclusive possession of joint [Hindu family] estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family. Uninterrupted sole possession of such property, without more, must be referred to the lawful title possessed by the joint holder to use the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members.
12. It may be mentioned that Sir Lawrence Jenkins was a member of the Board which laid down this proposition, because learned counsel for the appellants has mainly relied in support of his argument on a decision of Sir Lawrence Jenkins and Mr. Justice Batty in Gangadhar v. Parashram I.L.R. (1905) 29 Bom. 300 That was a second appeal in which the Court of first appeal had presumed ouster of a tenant-in-common by exclusive possession extending over a period of nearly fifty years. This Court held that there was evidence on which that finding could be reached and therefore it could not be interfered with in second appeal. So far there would be nothing to indicate that this Court agreed with the finding. The learned Judges may have been disposed to take the other view, but it being a second appeal they were bound to accept the finding of fact of the Court of first appeal. It is true that Sir Lawrence Jenkins cited an English case Fishar and Taylor v. Prosser, (1774) I. Cowp. 217 and what happened there was that a jury were directed that they might, if they thought fit, presume actual ouster of a tenant-in-common by forty years' sole possession. The jury did find ouster, and when the case went in appeal, the Court of appeal took the view not only that there was evidence on which the jury could find ouster but that they were under the circumstances justified in finding it. However, the facts of the English case do not appear from the judgment in Gangadhar v. Par ashram. It may well be that under the circumstances appearing there forty years' sole possession by one of the two tenants-in-common necessarily or reasonably implied a denial of the title of the other and justified a presumption of ouster. We are not prepared to say that that is so in the circumstances of the present case. The fact that the plaintiff was throughout the material period living in Bombay and occupied with other affairs makes it reasonable to take the view that he may have had no idea that there was anything in the manner of enjoyment of the land by the defendants which in any way affected his right as co-owner of it.
13. We were also referred to Chandbhai, Mahamadbhai v. Hasanbhai Rahimtoola I.L.R. (1921) 46 Bom. 213 but that really carries the matter no further, for Macleod C.J. merely referred to Gangadhar v. Parashram and gave his view of the effect of that judgment. Our view is that in this case there are no grounds shown for not applying the principle laid down in Hardit Singh v. Gurmukh Singh. We think therefore the trial Judge was right in holding that the defendants have not established adverse possession.
14. The only other point argued was that as the defendants have spent a good deal of money on improving the property, they should be given some special preference or indulgence at the time of the partition, and in particular the bungalow or cottage built by them should be assigned to their part of the property. In the alternative it was suggested that the defendants should be given the first choice after the property has been partitioned by, the Collector. It appears from what the learned trial Judge says that the bungalow is a small one which can hardly be divided. Presumably therefore the Collector will find it necessary to assign it to one party or the other. But we are not satisfied that there is any principle on which the defendants can be held to be entitled to any preference, and as we are unaware of the circumstances, we think it best not to fetter the discretion of the Collector in any way. That being so, we confirm the decree without modification and dismiss the appeal, with costs in two sets.