1. The suit, which has led to this second appeal, was brought by the appellant for partition of property, alleged to be joint and ancestral, and the only question in appeal is whether the claim is barred under Article 127 of Schedule II to the Limitation Act.
2. It is found as a fact by both the Courts below that the appellant has been excluded to his knowledge by his co-parceners from enjoyment of the joint property since 1890, i.e., for more than twelve years before the present suit instituted in 1907.
3. For the appellant it is contended that the period of exclusion from 1890 to 1898 must be eliminated from the question of limitation, because of a decree for partition passed in 1898 in favour of one of the co-parceners. In the judgment on which that decree was passed it was found that the property now in dispute was joint and partible. That finding, it is urged, was an adjudication in favour of each party to that suit that he was a co-parcener entitled to a share ; and that the adjudication had in law the effect of arresting, in favour of the appellant and as against the respondents, the period of limitation which had begun to run against the appellant from 1890 under Article 127 of the Limitation Act and of giving him a fresh cause of action and starting point of limitation.
4. Whether that is so must depend on what was determined by and was the effect of the judgment and decree in the previous suit.
5. That was a suit by Narayan Balaji, who was defendant No. 5 in the present suit and is respondent No. 4 in this appeal. On an issue raised in the previous suit the Court found that the property now in dispute was joint and partible. To use the language of the Privy Council in Chidambaram Chettiar v. Gouri Nachiar (1879) L. R. 6 I. A. 177 ' by this judgment there was a clear adjudication that the property was partible.' The judgment then proceeded to declare that Narayan Balaji, the plaintiff in the suit, was entitled to one-sixth share in the property and the decree framed in accordance with the judgment awarded that sixth share to him. This sixth share could indeed not have been determined by the Court without ascertaining incidentally the share of each of the co-parceners. But that implied ascertainment could not destroy the co-parcenary also between the co-parceners who were defendants in the suit and make them separate in estate inter se unless the judgment had fixed the shares which they were or would be entitled to. That is the principle of the law laid down by the Privy Council in Balabux Ladhuram v. Rukhmabai (1903) L. R. 30 I. A. 130, where it is said '.-'There is no presumption, when one co-parcener separates from the others, that the latter remain united. In many cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other co-parceners are or would be entitled to, and in this sense the separation of one is said to be a virtual separation of all.' That is also in substance the principle of the decision of the Privy Council in Chidambaram Chettiar v. Gouri Nachiar. For a judgment in a partition suit brought by one co-parcener for his share, to operate as a severance in interest not only as to him but also as between the other co-parceners sued, the judgment must contain a clear adjudication that each either should have or is entitled to a share definitely fixed. Now in the present case, in the previous suit the judgment did not fix the shares of the defendants therein. It gave a sixth share to the plaintiff in that suit and left the remaining five-sixths untouched. The determination of that sixth share might imply that each co-parcener had a sixth share but that was incidental and was a matter of mere arithmetical calculation, which did not become a binding decision, because it was not made the subject of clear adjudication by the Court in its judgment by fixing the share of every one of the other co-parceners so as to create a severance in interest as between them. The mutual relations of the defendants with reference to their five-sixths having been left to continue as before, the ancestral property in their hands remained joint. If that was so, the judgment and the decree did not disturb as between them the previous state of things and stop the limitation that had begun to run as against the appellant from 1890.
6. This conclusion derives support from the plaint and pleadings of the appellant himself. His case in the Courts below was not that the decree in the previous suit had extinguished the joint estate not only as to the plaintiff in that suit but also as between the defendants therein, of whom he was one and that thereafter the said defendants had by agreement continued united so as to constitute a new joint family. His case was substantially that the plaintiff in that suit had separated and that so far as the defendants therein were concerned things had gone on as before. That meant that their previous relations with reference to everything pertaining to the joint family, including limitation, had been left undisturbed. And when the respondents pleaded limitation against him, the appellant relied upon Article 127 of the Limitation Act in answer to the contention of the respondents that either Article 142 or Article 144 governed the case.
7. The decree must, therefore, be confirmed with costs.
8. Separate sets of costs.
9. The plaintiff sued to recover by partition his share, one-sixth, in certain joint family property. Having been defeated in both the Courts below, he now brings this second appeal here. Admittedly there is against him an absolutely clear finding of fact that since 1890 he has, to his knowledge, been excluded from all enjoyment of the family property; arid admittedly he cannot succeed in this appeal unless he can displace this finding of fact.
10. In the first place a second appeal is hardly a stage of the litigation where one would expect to find it possible to overturn a finding of fact, for such an appeal is expressly limited to questions of law, such questions being decided on the facts as found by the District Court.
11. This difficulty the plaintiff seeks to overcome by calling in aid a decision of the Civil Court in 1898, determining a suit filed in 1895. That suit was brought by the present 5th defendant, and the other present defendants were parties to it. The decree decided that the family was a joint family; that the property in suit was joint property; and that the then plaintiff was entitled to a one-sixth share. The decree was in favour of the present 5th defendant, and there was no decree in favour of the present plaintiff. It is urged for the plaintiff that, by virtue of this decree, whatever adverse possession may, as a fact, have been running against him prior to the date of the decree, must be considered to have determined at the date of the decree, with the result that the presently material period of adverse possession cannot be pushed back beyond 1898-; and in that case the present suit would admittedly be in time.
12. The argument is one which I have great difficulty in following, but, so far as I understand it, it is altogether untenable. In my view of the case the present finding of fact against the plaintiff is wholly independent of, and unaffected by, the decree of 1898. That decree neither decided, nor could decide, anything inconsistent with the present finding of fact, for the nature of the defendant's holding between 1890 and 1902 could not have been determined in a suit instituted in 1895. All that the decree decided was that the family and the property were joint and that the property was consequently partible. It was not even decided that the present plaintiff was at that time entitled to a one-sixth share, though I will concede that the decree proceeded on that reckoning. Still I cannot see how the plaintiff is now to be benefited, or to be saved from the finding of fact against him. In 1898 it was held that he was a member of a joint family. But it was not decided that he was in possession of any part of the family property either directly or constructively; and at a given moment a Hindu may be a member of a joint family entitled on partition to his share and may still be in process of being excluded to his knowledge. That is what has happened here. Possession is a mere matter of fact, and adverse possession, as I understand it, means possession held by some person on his own behalf or on behalf of some person other than the true owner, the true owner having a right to immediate possession. To say, therefore, that in 1898 the plaintiff had a good title to possession is perfectly consistent with saying that in fact possession was with the defendants, who were ousting the plaintiff to his knowledge and in spite of his title.
13. As to the case of Amrita Ravji v. Shridhar Narayan ILR (1908) 33 Bom. 137 it is, I think, distinguishable on its facts, for there there was an actual decree awarding possession in 1886 to that party who was objecting that the joint judgment-debtor's adverse possession prior to 1886 could not be tacked on to his subsequent possession so as to fill out the complete period of limitation. Moreover, I do not find that in that case the Bench enunciated any proposition of law which is in conflict with the views I have expressed in this appeal.