1. The facts upon which the question of adverse possession, arising on the second appeal, turns, are found and stated as follows in the judgment of the lower appellate Court:
The plaint-land (S. No. 17, Pot No. 1) along with other lands was originally the joint property of two brothers, Gangadhar and Damodar.
One Narayan, the father of the plaintiffs, obtained a decree in Regular Suit No. 735 of 1873 against Damodar on a mortgage-bond; and in execution of that decree, in Darkhast No. 699 of 1875, ho brought the property to sale. The property was purchased by Vishnu Ganesh. The suit had been instituted by Narayan against Damodar as Manager of the joint Hindu family. Gangadhar, however, obstructed the purchaser, Vishnu Ganesh, in taking possession, whereupon the latter instituted Regular Suit No. 178 of 1877 against Gangadhar to remove the obstruction. The District Court decided in appeal in that suit that Vishnu Ganesh was entitled to recover possession by partition of a moiety of the property. The date of this decision was 29th November 1886 (Vide Exhibit 22).
In execution of this decree, Vishnu gave a Darkhast No. 344 of 1894 to recover possession of a moiety. The Darkhast was sent to the Collector for execution, and the Huzur Surveyor, in effecting a partition, handed over to Vishnu possession of the plaint-land (survey No. 17, Pot No. 1) and other survey numbers on 11th December 1895. Exhibit 23 is the possessory receipt passed by Vishnu in token of having obtained possession.
On 22nd January 1897, Vishnu sold the property to one Vinayak Mahadeo, and he in turn sold it to plaintiff 1 on 18th March 1898 under a sale-deed, (Exhibit 16). That is the title deed under which the plaintiff claims.
Meanwhile, on 4th October 1894, Gangadhar has sold the plaint-land to the defendant's father under a sale-deed (Exhibit 26).
2. The learned Subordinate Judge, who tried the suit, held that the plaintiff's claim was barred, because the defendant, and before him his vendor, had been in adverse possession from the 29th of November 1886, the date of the partition decree. On appeal by the plaintiff, the learned District Judge, differing from the Subordinate Judge, has held that the period commencing from the 29th of November 1886 and ending with the 11th of December 1895, when the partition was effected by the Collector in execution of the decree, should not be taken into account, because the effect of that decree was to make the plaintiff's predecessor-in-title, Vishnu Ganesh, 'virtually a co-parcener with Gangadhar in place of Damodar, entitled to joint possession or rather a tenancy-in-common in the family property,' and that the possession of Gangadhar could not be adverse to the decree-holder until the joint tenancy was severed by partition.
3. I am unable to agree with the learned District Judge, if by this he means that, where two or more persons hold property jointly as tenants-in-common and one of them is out of possession, the possession of the rest does not in any case become adverse until the property is partitioned. It has been held by a Division Bench of this Court in Bandacharya v. Shriniwasacharya 5 Bom. L.R. 743, on the authority of Lord Denman's remarks in Bully v. Doedem Taylerson (1840) 11 Ad. &. E. 1014, followed in Gangadhar v. Parashram 29 B. 300: 7 Bom. L.R., 252, that 'to constitute an adverse possession as between tenants-in-common there must be an exclusion or an ouster,' and 'exclusive receipt of profits continuously for a long period may point to an ouster but the Court must be satisfied that such taking of profits is an indication of a denial of rights in the other co-tenant to receive them.' The question of adverse possession depends, therefore, not on a severance of the tenancy-in-common by partition but on exclusive occupation by one co-tenant amounting to an ouster of the other.
4. In the present case, the decree for partition, which was obtained by Vishnu Ganesh (under whom the plaintiff claims) on the 29th of November 1886 against Gangadhar, established his right to a moiety of the property and to get that moiety separated and allotted to him. Under ordinary circumstances the continuance of Gangadhar in possession to the exclusion of Vishnu Ganesh would have been adverse from that date, and the defendant who claims under a purchase from Gangadhar would have been entitled to tack on the period of the latter's exclusive occupation to his own, so as to perfect his title to the property by adverse possession for more than twelve years as against Vishnu Ganesh and those claiming under him. But to entitle the defendant to add to the period of his own adverse possession (which is admittedly less than twelve years before the date of the present suit) the period of his vendor Gangadhar's possession, it must be shown that the latter's possession was also adverse. That it could not be, so long as the decree for partition was alive and capable of execution as against Gangadhar during the period of his exclusive occupation, because during that period the decree forming the basis of the mutual rights and obligations of the parties prevented them from setting up any title contradicting it and thereby giving to either a new cause of action against the other. Suppose during the period that the decree was alive and capable of execution, the judgment-debtor Gangadhar, who was in possession, had repudiated his liability thereunder and claimed the property as his own. That could not have given Vishnu Ganesh a fresh cause of action or the right to sue him afresh in ejectment, because, his right having been established by the decree, he could proceed in execution without any fresh suit. It is not contended before us, nor does it appear to have been urged in either of the Courts below, that on the 11th of October 1894, when Gangadhar sold the property to the defendant, the decree had been barred so as to become incapable of execution and to free Gangadhar from his liability under it. As a matter of fact, the decree was subsequently executed by the Collector, according to law, with the result that, as against Gangadhar, Vishnu Ganesh was allotted his divided moiety and put in possession on the 11th of December 1895. No doubt that possession was symbolical and would not bind the defendant, who was then in actual possession under his deed of purchase of a prior date. But so far as Gangadhar was concerned, it was otherwise; his possession of the property was subject to his liability under the decree and could in no sense become adverse to the decree-holder during the period when his right to execution of the decree had not become barred. The defendant cannot, therefore, invoke the aid of the possession of his vendor to support his plea of a title acquired by adverse possession. Such possession could begin, if at all, only when Gangadhar, in spite of his liability under the decree, sold the property to the defendant, and the defendant's occupation of the land commenced. Whether, even then, the defendant's possession became adverse from that date, need not be decided, because assuming it was, the suit was brought within twelve years from then. For these reasons the decree must be confirmed with costs.
5. The predecessor of the plaintiff, who sues for possession, obtained a decree for possession after partition of the half of a property. This decree was against one Gangadhar who was in possession of the whole property and who, after the partition decree but before its execution, sold the property to the defendant and placed him in possession. So defendant was in actual possession of the whole when partition was made in execution of the decree and plaintiff's predecessor was formally placed in possession of the half he was under the decree entitled to. Thereafter neither the plaintiff nor his predecessor converted the formal into actual possession and the defendant remained in actual possession of the property. The latter had not had actual possession for twelve completed years when the suit was filed bat seeks to add on to his own actual possession that of Gangadhar and call the whole adverse. The facts being as they are he cannot do this. When plaintiff's predecessor executed the decree by having his share of the property separated and formally given over to him he perfected his claim.
6. From that moment a new condition of things came into existence; new rights arose and amongst them that of the decree-holder to take actual possession of his separated share. This was not a right continued or derived from any previous holder of the land but a new right unlike any which previously existed. No possession prior to its inception could be adverse to that right. Therefore, no case of title in the defendant based on adverse possession is established.