1. The facts are :- The original owner of the suit lands was one Amin Kasam, who died in May 1910. On the finding of fact in this case, he died leaving behind him a widow by name Amitrbi, a sister by name Shahbibi, and a distant kindred by name Hasan under whom Karimbi, defendant No. 1, claims. The deceased had another sister by name Alubi, but it is found that she had died some time before.
2. In February 1911 Amirbi executed a gift-deed of the suit lands in favour of one Sultan, brother of defendant No. 5 in this suit. Sultan, the donee, went into possession of the property soon after the date of the gift-On Sultan's death, Karimbi (defendant No. 1) brought a suit in October 1921 against Sultan's widow and brother (defendant No. 5) and against the tenant of the suit lands. The tenant is defendant No. 4 in this suit. It was suit No. 996 of 1921, and Karimbi got a decree in her favour on October 29, 1923, and went into possession of the suit lands in February 1924. She sold them to the present defendants Nos. 2 and 3 on September 2, 1925. Plaintiff is a purchaser from some of the heirs of the two sisters of the original owner.
3. Plaintiff brought this suit on October 26, 1926, to recover possession after partition, alleging that he was entitled to two-thirds share in the suit lands. Defendants Nos. 1 to 3 and defendant No. 5 contested the claim on merits. It was also contended that neither the plaintiff's vendors nor their predecessor, Shahbibi, the sister of the deceased Sheikh Amin, had ever been in possession and that, as a consequence, the claim was barred by time.
4. The trial Court held that plaintiff's vendors had a half share in the suit lands and that the claim was in time and passed a decree in favour of the plaintiff. The decree was confirmed on appeal to the District Court, It may be noted that as to the state of possession of the suit lands, the findings are that Sultan, the donee from Amirbi, and his heirs were in possession from February 1911 to February 1924, that Karimbi (defendant No. 1) was in possession from February 1924, and that defendants Nos. 2 and 3 went into possession from the date they purchased the lands. This second appeal has been filed by defendants Nos. 2 and 3.
5. The first point argued is that the suit is time-barred, having regard to Article 136 of the first schedule to the Indian Limitation Act. It was contended that the suit was not governed by Article 144 but was governed by Article 136. The latter Article enacts that a suit by a purchaser at a private sale for possession of immoveable property sold when the vendor was out of possession at the date of the sale must be brought within twelve years from the time when the vendor is first entitled to possession. It was contended that the vendor of the plaintiff was first entitled to possession in May 1910, when the original owner died, and so plaintiff's claim is out of time. It has been held that the expression 'out of possession' in the first column of Article 136 implies that some person is in possession adversely to the vendor : vide Chintamani v. Hriday (1913) 29 C.L.J.241 It has also been held that the words 'when the vendor is first entitled to possession' in the third column of Article 136 relate to the beginning of dispossession referred to in the first column of Article 136 : vide Partap Chand v. Saiyida Bibi I.L.R. (1901) All. 442 In the course of the judgment in that case, it was observed as follows (p. 445):
Suppose that a vendor succeeds to property on his father's death, remains in possession thereof for twenty years, is then ousted by a trespasser, and two years after this sells his rights; we think that it could not be contended in a suit brought by the vendee against the trespasser that, inasmuch as the plaintiff's vendor was first entitled to possession on his father's death, twenty-two years before, the suit was out of time.
This, in my judgment, is a correct interpretation of Article 136. If the interpretation put forth on behalf of the appellants is accepted, it will conflict with the view taken as regards the law relating to possession by tenants-in-common. The law is that where a special relationship exists between persons, such as tenants-in-common or members of an undivided family, the Court will presume that possession held by one is possession held on behalf of all the co-owners or members of the family. It does not follow that because a tenant-in-common is out of possession, time immediately begins to run against him. The possession of one co-owner is, in itself, rightful and does not imply hostility as would the possession of a stranger. To constitute adverse possession as between tenants-in-common, there must be an exclusion or an ouster. Exclusive receipt of profits continuously for a long period may point to an ouster, if the Court is satisfied that such taking of profits is an indication of a denial of right in the other co-tenant to receive them vide Jogendra Nath Rai v. Baladeo Das I.L.R. (1907) Cal. 961 and Gangadhar v. Parashram I.L.R. (1905) Bom. 300 : Bom. L.R. 252 It will follow that if a co-tenant were to sell his share in a joint property to a stranger some time after twelve years from the date when he and the other co-sharers became entitled to the property, it would not be proper to defeat the right of the purchaser by saying that the suit was barred because his vendor became first entitled to possession on the date on which the co-sharers became entitled to the property. In Shivlingappa v. Satyava (1920) 23 Bom. L.R. 976 property belonging to two tenants-in-common was in possession of one of them. On the death of the other in 1898, his daughter obtained a decree in 1906 for her share in mesne profits of the property. The daughter attained majority in 1909 and sold her share to the plaintiff in 1913. The plaintiff sued in 1913 to recover possession of the share in the property sold to him. The trial Court held that the suit was barred by Article 136. The High Court reversed the decree, holding that Article 136 did not apply. On behalf of the appellants, reference was made to Ram Lakhi v. Durga Charan Sen I.L.R. (1885) Cal. 680 and to Bhavrao v. Rakhmin I.L.R. (1898) Bom. 137 In the former case, the plaintiff (who was a stranger) was a purchaser from a co-sharer in a Hindu family apparently governed by the Dayabhaga school of law. It was held by one of the members of the division bench, who decided the appeal, that Article 136 applied to the case, but as regards the point of time when the limitation would begin to run, it was observed as follows (p. 683):
The plaintiff in my opinion is bound to show, that he brought his suit within twelve years from the time when Shiba Durga was excluded from possession; and consequently from the time when she was first entitled to bring a suit to recover it. It may turn out, of course, that Shiba was never excluder from possession; and in that case the plaintiff may be in time. But the issue which the lower Court will have to try is this, whether Shiba was excluded from possession, and, if so, when, and the onus will be upon the plaintiff to show that she was excluded, if at all, within twelve years before this suit.
This shows that the learned Judge put a different construction from the one sought to be placed on behalf of the appellants on the third column of Article 136. The second case referred to above-the Full Bench decision in Bhavrao v. Rakhmin-goes on a different point from the one in this case. It was held in that case that where co-parceners have alienated their shares in the joint property by sale or mortgage, and the alienees have been in possession for more than twelve years, a claim for partition is, as against such alienees, barred by limitation under Article 144 of the Indian Limitation Act. In this case, we are concerned with a suit brought by a vendee from a co-sharer against persons, many of whom, though strangers, have not been proved to be in adverse possession for more than the statutory period, as I will show in the next paragraph.
6. It will next have to be determined if the suit is barred under Article 144 of the first schedule to the Indian Limitation Act. As to this point, it is to be noted that the finding of fact is that there was no denial of the title of Shahbibi either by Amirbi or by Husen or by defendant No. 1. It is in evidence that defendant No. 1 was not in adverse possession as against Shahbibi or her heirs, at any rate, prior to February 1924. The possession of the donee (Sultan) or of his heirs had not ripened into adverse possession, for though they were in continuous possession from February 1911 to February 1924, defendant No. 1 had brought suit No. 996 of 1921 in October 1921, and under the rulings of this Court which I am citing below, adverse possession (if at all) will be counted only up to the date of the institution of the suit by defendant No. 1. In Mr. Akbarali v. Abdul Ajij I.L.R. (1920) Bom. 934 : 22 Bom. L.R. 916 the plaintiffs were in possession of certain property from 1882. In a suit brought against them in 1893, it was held in 1896 that they were not entitled to possession. Notwithstanding this decree, the plaintiffs remained in possession till 1908, when they were dispossessed under an order passed by the Collector. The plaintiffs having sued to recover possession on the ground of their adverse possession, it was held that the plaintiffs could not be allowed to tack on the period of adverse possession before the decree in the suit of 1893 to the period after the decree. The High Court of Madras has, no doubt, dissented from this view, vide Singaravelu Mudaliar v. Chokkalinga Mudaliar I.L.R. (1922) Mad. 525 I am, however, bound by the view of our Court. Besides the position based upon this ruling, there is the fact that defendant No. 5 was dispossessed in 1924 and it was admitted at the bar that there is no evidence to prove that he is in possession of his share which was allowed to him in appeal against the decree in suit No. 996 of 1921, so that he (defendant No. 5) cannot usefully rely on the principle enunciated in Dagdu v. Kalu I.L.R. (1897) Bom. 733 It is not contended that defendant No. 1 can tack on to her possession (even supposing her possession is adverse) the possession of Sultan and his heirs. Such a course is not allowed by law. It has been held that the defendant cannot add to his own adverse possession the adverse possession of another independent previous trespasser from whom he did not derive his liability to be sued and whom he does not represent by birth, transfer or devise [vide Ram Lakhan Rai v. Gajadhar Rai I.L.R. (1910) All. 224 Ramchandra Balwant v. Balaji Ganesh I.L.R. (1920) Bom. 570 : 22 Bom. L.R.1452 Charu Chandra Pramanik v. Nahush Chandra Kundu I.L.R. (1922) Cal. 49 It is, therefore, clear that the present suit is not barred by Article 144.
7. It was further argued that defendants can defeat the suit by pleading jus tertii. But, as stated above, there is no title acquired by adverse possession for the continuous period of twelve years. Moreover, plaintiff's vendors were co-sharers and defendant No. 1, who got into possession of the property, is a co-sharer and, under Section 90 of the Indian Trusts Act she will hold the property for the benefit of herself and the other co-sharers or their vendees, unless it is proved that the claim of the latter is time-barred.
8. As to the quantum of the share of plaintiff's vendors no point was taken in the memorandum of appeal. The quantum of share allowed by the trial Court was left uncontested in the District Court. It should not now be allowed to be disturbed.
9. I am, therefore, in agreement with the lower appellate Court that the suit is in time. I confirm the decree of that Court and dismiss the appeal with costs payable by the appellants to respondent No. 1. Respondent No. 4 (defendant No. 5) will bear his own costs.