S.R. Das Gupta, C.J.
1. The suit out of which this appeal arises was for partition and possession of the plaintiff's share in the suit property. The defendants in the said suit are the appellants before us. It is necessary to set out a genealogical table in order to understand the relationship of the parties and the point which was involved in the suit:.
Jivakka (deft. 1) Akkawa Ramappa.
(Akkawa's husband, Plaff.)
2. Baswant was the original owner of the suit property. He died leaving his widow Yellawa and the two daughters Jivakka, defendant 1, and Akkawa. Yellawa died in 1912. The plaintiff's case is that Akkawa died after Yellawa and the plaintiff who is her husband became entitled on her death to half share in the suit property. The defendants dispute that Akkawa died after Yellawa. According to them, Akkawa's death took place before the death of Yellawa and, therefore, defendant 1 was the sole owner of the suit property. She made a gift of the same to her son-in-law who is defendant 2. Two questions arose for determination in the suit, viz., (1) whether Akkawa died before Yellawa; and (2) whether the defendants had acquired title to the suit property by adverse Possession.
3. It has been found by both the Courts that Akkawa died after Yellawa. That finding is not challenged before us. Both the. Courts have also found that the defendants failed to establish their title by adverse possession. In the present appeal the question which has been raised before us relates to the said finding of the Courts below on the question of adverse possession.
4. It has been found as a fact by both the Courts that defendant 1 had been in possession for about 42 years. It has also been found that during the said period defendant I enjoyed all the rents and profits from the said property. The further finding of the Courts below is that the plaintiff never demanded his share of the said rent, nor called for any accounts in respect thereof from the defendants. The further fact which is established on the evidence on the record is that entry in the R. R. Records is in the name of defendant 1. Defendant' 1's name in the said entry has been substituted as the heir of Yellawa. On these facts the question arises as to whether or not the defendants have acquired title by adverse possession.
5. Both the Courts have disposed of this question on the ground that the defendants have not been able to show that there was ever any demand made by the plaintiff and there was any refusal on the part of the defendants to recognise the the of the plaintiff. The trial Court took the view that there can be no question of adverse possession in respect of the property held by a joint owner unless the person who claims such title establishes ouster.
The said Court then proceeded to hold that it is an established principle of law that unless there is proof of claim of share and its disclaimer, there is no ouster. In this case, the trial Court held there is no evidence that there has been any actual denial of the plaintiff's title by defendant 1. On this view the trial Court came to the conclusion that the defendants have failed to establish their title by adverse possession.
6. The lower appellate Court also came to the same conclusion. It he'd that it is well settled that in the case of co-owners, possession of one is possession for and on behalf of all unless there is dear proof of ouster and such ouster is not to be presumed merely from exclusive possession or enjoyment of some of the co-owners. The said Court further held that there is no evidence on the 1st defendant's side to show that the plaintiff exclaimed a share till the notice given prior to the suit and the same was repudiated by her to his knowledge.
No exclusion by ouster can, according to the said Court, in the circumstances be inferred merely from the 1st defendant's enjoyment of the property for the last 40 years. On this view the lower appellate Court confirmed the decree passed by the trial Court. It is against the said decision of the lower appellate Court that the Present second appeal has been filed.
7. Mr. Govinda Bhat appearing on behalf of the appellants submitted before us that the sole below have taken an erroneous view as to the law on this point. He contended before us that safe possession by one tenant in common Continuously for a long period without any claim or demand by any person claiming under the other tenant-in-common is evidence from which actual ouster of the other tenant-in-common may be presumed.
In support of that contention he relied mainly on a decision of the Bombay High Court reported in Gangadhar v. Parasharam, ILR 29 Bom 300. The other decisions to which Mr. Bhat referred are Doe d. Fishar v. Frosser, (l774) 98 ER 1052, Hla Pe Maung v. Manika, AIR 1940 Rang 141, Anant v. Vishnu, AIR 1934 Bom 273 and Venkuta Row v. Venkoba Row : AIR1927Mad595 . Mr. Bhat contended before us that the Court below should have given a decision on the question as to whether in the circumstances of this case actual ouster of the plaintiff may be presumed.
He contended that the view taken by the Courts below was that unless it is proved that these was a clear demand and refusal to recognise the title of the plaintiff there tan be no ouster. This he submitted, was a wrong view of the law, which was taken by the Courts below. He contended, on the authority of the decisions to which I have referred, that there is a presumption of ouster when there is user for a long period without any claim or demand by the person claiming under the other tenant-in-common.
8. As against this contention of Mr. Bhat, Mr. Mahajan appearing on behalf of the respondent urged before us that a co-sharer's possession can never be adverse unless there is a clear demand and refusal as held by the Court below. support of that opposition he relied on Harkesh Singh v.. Mt Hardevi : AIR1927All454 , Mt Fardosjahan Begum v. Shafiuddin, AIR 1942 Nag 75, Nanda Lal v. Pramatha Nath Roy, AIR 1953 OS 222 and a number of decisions of other Indian High Courts. These decisions no doubt support the view which has been urged before us by Mr. Mahajan.
9. It, therefore, appears that two views have been taken in the decisions of the different High Courts on this point. One view is, as urged before us by Mr. Govind Bhat, that a long and continuous user without any demand or claim may give rise to an inference of ouster. The other view is, as propounded by Mr. Mahajan, that a co-owner's possession can never amount to ouster however long and continuous it may be unless there is a clear admission and refusal to accept the title of the claimant. This conflict in my opinion, can be said to have been settled by two decisions of the Privy Council and a decision of the Supreme Court. The Privy Council decisions to which I shall presently refer are reported in Corea v. Appuhamy, 1012 AC 230 and Varada Pillai v. Jeevarathanammal, ILR 43 Mad 244 (AIR 1919 PC 44). The Supreme Court decision on this question is reported in P. Lakshmi Reddy v. L. Lakshmi Reddy, (S) : 1SCR195 and the material passage is at page 318.
10. I shall first refer to the Privy Council decision in 1912 AC 230. In the said decision their Lordships first laid down two broad Propositions, viz., possession is never considered adverse if it can be referred to a lawful title and that in law j possession of a co-owner of a land is the possession of all his other co-owners. Having laid down these two propositions, their Lordships proceeded to consider whether or not the Court might presume from long continued possession undisturbed and uninterrupted, that there had been ouster or something equivalent to ouster. On this point, their Lordships observed as follows:-
'No doubt in former times before the statute of William IV., when the justice of the case seemed to require it, juries were sometimes directed that they might presume an ouster. But in the present case the learned Judge did not make any presumption of that sort. Nor, indeed, did Iseris before this action was brought attempt to rely on adverse possession. His pretence was that he was sole heir ..... Be that as it may, this is not a Case in which the circumstances could justify the presumption of ouster in favour of such a man as Iseris.
To making these observations their Lordships, in my opinion, recognised the principle that circumstances in a particular case may justify the presumption of ouster.
11. The next case to which reference should fee made is ILR 43 Mad 244 : (AIR 1919 PC 44). In this case their Lordships held that the limits of the rule, viz., that the possession of one of several coparceners, joint tenants or tenans-in-common, is the possession of others so as to prevent the statutes of limitation from affecting them, were defined Culley V. Doe d. Taylerson, (1840) 11 Ad and E 1008 as follows :-
'Generally speaking, one tenant-in-common cannot maintain an ejectment against another tenant-in-common, because the possession of one tenant-in-common is the possession of the other, and, to enable the party complaining to maintain ad ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant-in-common, has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster ...... and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety.'
In making these observations, their Lordships affirmed the principle, viz., that non-participation of the rents and profits for a considerable length of time taken with other circumstances may lead to an inference of ouster.
12. To the same effect are the observations of their Lordships of the Supreme Court in the case of, (S) : 1SCR195 , the material passage being at page 318. Their Lordships held as follows.
'When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. See 1912 AC 230. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. 'This does not necessarily mean that there must be an express demand by one and denial by the other.' There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile tide and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of eases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in AIR 1919 PC 44 at p. 47 quotes apparently with approval, a passage from (1840) 3 P and D 539 : 52 RR 566 which indicates that such a situation may well lead to an inference of ouster 'if other circumstances concur.' See also Govind rao v. Rajabai. . It may he further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession. (The underlining (here ' ') is mine).
The observations re-affirm the principle which has been laid down in the Privy Council decisions to which I have already referred. Their Lordships of the Supreme Court made it quite clear that in order to establish ouster it is not always necessary, that there must be an express demand by one and denial by the other. The circumstances of the case may lead to an inference that there has been such ouster.
13. In my opinion, the result of the Privy Council and the Supreme Court decisions, to which I have referred is that there may be circumstances in a particular case which may lead to an inference of ouster. The question which is urged before us in this appeal is that the lower Courts did not consider this point, viz., whether or not the circumstances in the present case justify such an inference.
14. Mr. Govinda Bhat stated before us that this point, viz. that the circumstances in the present case would justify an inference of ouster, was specifically raised before the lower appellate Court and in support of that he drew our attention to the grounds of appeal which was filed in that Court and also the fact that the decision reported in ILR 29 Bora 300 has been noted as having been referred to at the hearing of the said appeal. In my opinion, the lower appellate Court should have considered the question as to whether or not the circumstances of the present case would justify an inference of ouster.
15. I want to make it clear that we are not expressing any opinion on the question as to whether or not circumstances in the present case would justify an ouster. I want also to make it clear that we do not subscribe in toto to the view which has been expressed in the Bombay decision reported in ILR 29 Bom 300 where it is held that sole possession by one tenant-in-common continuously for a long period without any claim Or demand by any person claiming under the other tenant-in-common is by itself evidence from which actual ouster of the tenants-in-common may be presumed.
As observed by the Privy Council and the Supreme Court that these facts taken along with the other circumstances of the case may lead to an inference of ouster. Whether or not the circumstances in the present case would justify such an inference is a matter which has to be decided by the lower appellate Court and we express no opinion on that question.
16. The result, therefore, is that this case is directed to go back to the lower appellate Court for a re-hearing of the appeal before it in accordance with this judgment and in accordance with law. The costs of this appeal will abide by the final result of this case. Refund of the Court-fees ordered.
Hombe Gowda, J.
17. I agree.
18. Order accordingly.