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Subah Lal Vs. Fateh Mohamad - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad
Decided On
Reported inAIR1932All393; 140Ind.Cas.653
AppellantSubah Lal
RespondentFateh Mohamad
Excerpt:
- - this was held in numerous cases and was laid down by their lordships of the privy council in the well-known case of corea v. i need not consider whether this case was rightly decided or not, as, as i have said, it is a case clearly distinguishable from the facts of the case before me. 10. the record affords no indication as to how husain bakhsh and qadir bakhsh jointly enjoyed the shop in question. in this view i am clearly of opinion that there is no conflict between the case last mentioned and the earlier one which i have followed. 26. as regards co-owners the law is now well settled that there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the other. 230 approved of the well-known principle recognized by.....mukerji, j.1. after stating facts a' appear in niamatullah, j'.s judgment, his lordship proceeded. the contention on behalf of the plaintiffs that found favour with the courts below was that the sons of qadir bakhsh and the children of makhnu were co-owners of joint property, and possession of some of the co-owners, viz., of the sons of qadir bakhsh, could not be adverse to the plaintiffs till it was established that the factum that qadir bakhsh'a sons were claiming adversely had been brought to the notice of the plaintiffs.2. as a general proposition of law, there can be no doubt that possession, where it is referable to a title, cannot be considered to be adverse, and hence a co-owner's possession is prima facie not adverse to the other co-owners. this was held in numerous cases and was.....
Judgment:

Mukerji, J.

1. After stating facts a' appear in Niamatullah, J'.s judgment, his Lordship proceeded. The contention on behalf of the plaintiffs that found favour with the Courts below was that the sons of Qadir Bakhsh and the children of Makhnu were co-owners of joint property, and possession of some of the co-owners, viz., of the sons of Qadir Bakhsh, could not be adverse to the plaintiffs till it was established that the factum that Qadir Bakhsh'a sons were claiming adversely had been brought to the notice of the plaintiffs.

2. As a general proposition of law, there can be no doubt that possession, where it is referable to a title, cannot be considered to be adverse, and hence a co-owner's possession is prima facie not adverse to the other co-owners. This was held in numerous cases and was laid down by their Lordships of the Privy Council in the well-known case of Corea v. Appuhami [1912] A.C. 230. Here however we are-concerned not merely with cosharers but with a third party, viz., the defendant-appellant.

3. So long as possession remained with the sons of Qadir Bakhsh, and conceding; for the sake of argument, but not admitting so long as possession remained with the tenants of the sons of Qadir Bakhsh, the possession was with the co-owners, and that possession could not ordinarily be regarded as adverse to the other co-owners; but as soon as the defendant obtained a usufructuary mortgage from the sons of Qadir Bakhsh and got possession under it in my opinion it must be taken that the possession of the defendant became adverse to the plaintiffs. The possession of the defendant after the mortgage could not be referred to mere co-ownership of the mortgagors with the, plaintiffs. A mortgage of the entire property by one of the proprietors is a clear assertion of adverse title and the possession of the mortgagee is surely adverse to the co-owners of the mortgagor.

4. Article 144, Lim. Act, Col. 3, puts down the date of starting limitation as ' when the possession of the defendant becomes adverse to the plaintiff.' We note here that, in 1910, the mortgage was executed and it was followed in 1913, by a sale deed in favour of the defendant, the original mortgagee. In my opinion, by no stress of argument can it be established that the initial possession of the defendant as a mortgagee was not adverse to the plaintiffs, although it is conceded that the possession following the sale was adverse.

5. The view expressed above is supported by a two-Judge decision of this Court, viz., Prahlad Singh v. Baru Mal : AIR1931All18 , a decision to which I was also a party. This decision upheld, on Letters Patent Appeal, the decision of a single Judge of this Court, so the view expressed in the decision is the view of three Judges of this Court.

6. On behalf of the respondents the case of Hafiz Abdullah v. Ali A.I.R. 1923 All. 291 has been cited. The facts of that case are not on all fours with the facts of the present case. There, the co-owner had made a usufructuary mortgage and, although the mortgagee had been in possession for more than 12 years, the possession had been taken back by the mortgagor on redemption before the suit was brought by the mortgagor's co-owner for a share in the property. At the date of the suit the possession was with a co-owner, and it was for the co-owner to establish when this possession became adverse to the plaintiff. It was held that the mere fact that he had made a mortgage was not sufficient, because the factum of the mortgage had not been brought to the notice of the plaintiff. I need not consider whether this case was rightly decided or not, as, as I have said, it is a case clearly distinguishable from the facts of the case before me. Unless we are prepared to hold that a usufructuary mortgage by a co-owner stands on the same footing as an ordinary lease by a co-owner and a usufructuary mortgage is no indication of a claim of adverse title, we are bound to hold that the possession of a mortgagee under a usufructuary mortgage is adverse to the co-owners of the mortgagor, from the date the mortgagee takes possession under the mortgage. In the result I would hold that the appellant has established more than 12 years adverse possession against the plaintiffs and would therefore allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs throughout.

Niamatullah, J.

7. The suit which has given rise to this appeal was brought by the plaintiffs-respondents for recovery of possession of a shop situate in Kanauj. The following pedigree will explain the nature of the plaintiffs' claim:

Bhallu

|

|----------------------------|------------------------------|

Hussain Baksh Makhnu Qadir Baksh

(childless) | |

|------------------------------|

Mt. Nooha, Fateh Mohammad

Plff. 2. Plff. 1.

|-------------|----------|--- ------|-----------|----------|----------|

Mt. Latifan Mt. Qutban Yusufali Umaidali Mohammadali Niazali Ewazal

8. It is no longer in dispute that the shop in question together with other shops belonged to Husain Bakhsh and Qadir Bakhsh, shown in the above pedigree. Their brother Makhnu had originally no interest in it. Qadir Bakhsh predeceased both of his brothers, leaving his sons and daughters. On Husain Bakhsh's death, his moiety devolved upon his sole heir Makhnu, and thereafter the ownership of the shop was vested in Makhnu to the extent of half and in Qadir Bakhsh a children to the extent of the other half. The plaintiffs' allegation that the entire shop was allotted to Husain Bakhsh on a partition between him and his brother Qadir Bakhsh has been found by both the Courts below to be untrue. Similarly, the defence that Makhnu did not survive Husain Bakhsh has been held to be false. Husain Bakhsh died in-1909 or 1910. Makhnu died some time after March 1912. The shop in dispute was let by the descendants of Qadir Bakhsh to Subah Lal, the appellant, as a tenant. Subsequently, in 1910, a usufruotuary mortgage of the shop was made by Ewaz AH and others the heirs of Kadir Bakhsh in favour of the appellant. In 1913, Ewaz Ali and others sold the shop to him. The present suit was instituted on 16th November 1924.

9. The only defence which it is necessary to consider in second appeal is one of adverse possession, pleaded by the defendant-appellant. Both the Courts below have overruled the defence, and the only question argued in second appeal is whether the plaintiffs' suit was barred by limitation.

10. The record affords no indication as to how Husain Bakhsh and Qadir Bakhsh jointly enjoyed the shop in question. It has however been. found by the lower Courts that, during the lifetime of Makhnu, actual possession was with the descendants of Qadir Bakhsh, specially Ewaz; Ali. The finding of the lower appellate Court on the question of possession is as follows:

Somehow or other, the children, of Qadir Bakhsh got possession of the shops inherited by Makhnu.... The relations between the descendants o Qadir Bakhsh and the plaintiffs appear to have been cordial and intimate, inasmuch as Mt. Nootaa, the daughter of Makhnu, is married to a son of Qadir Bakhsh, and Fatch Muhammad, the son of Makhnu, is married to one of the daughters of Qadir Bitkhsh. Makhnu was blind and was a cripple, and his son Fatah Mohammad lived away from Kanauj for a number of years and returned home about 6 or 8 years ago, and even then he was confined to bed for 4 years. Ewaz Ali used to manage the property, and the plaintiffs had no reasons to suspect the conduct of Kwan Ali.

11. Accordingly, the lower appellate Court held that the possession of Ewaz Ali and others, who were cosharers of the plaintiffs, was not adverse, nor was that of the mortgagee (the appellant) adverse to the plaintiffs, who had no reason to think that the character of the appellant's possession had changed from that of the lessee to that of the mortgagee. The trial Court had likewise held that:

Sabah Lai's vendors, Ewan Ali and his brothers and sisters, were jointly in possession of the shops with Makhnu and his heirs. Their possession cannot be said to be advarse to the plaintiffs even if we disbelieve the evidence for the latter that they continued to receive rent of the shops from the tenants through Bwaz Ali. It can, no doubt, be argued that the mortgage of 21st April 1910 was an act by which the defendant mortgagors asserted full title to the shop in question against their co-owners, the present plaintiffs; bat there is nothing to show that the mortgage was brought to the notice of the plaintiffs. I find no difficulty in beliaving the plaintiff's case that it came to their knowledge only recently, seeing that Subah Lal had admittedly been occupying the shop as lessee from before the mortgage and thus there was nothing to excite the plaintiffs' suspicion. There is absolutely nothing to show that either Subah Lal or his mortgagors ever asserted a title adverse to the plaintiffs to the knowledge of the latter. I cannot therefore hold that plaintiffs' co-owners, Ewaz Ali and his brothers and sisters, or their mortgagee, the present defendant Subah Lal, was in adverse possession of the shop in question prior to the data of the sale in Subah Lal's favour.

12. I have quoted at length the findings of the two Courts below to indicate how far they conclude questions arising in this second appeal. Adverse possession is a mixed question of law and fact. We must accept the facts found by the lower appellate Court and proceed to decide whether the law was correctly applied to those facts. There can be no doubt that both the Courts below have concurrently found that possession of Ewaz Ali and others was not in denial of the plaintiffs' title and that the possession of Subah Lal was that of a lessee up to 1910 and therefore not adverse. Both the Courts below have further found that the plaintiffs had no reason to suspect; that Subah Lal obtained a mortgage deed from Ewaz Ali and others. For ought we know, the plaintiffs had no knowledge of the sale made by Ewaz Ali and others in 1913; but as the suit is within 12 years from its date, the Courts below appear to have assumed, for the purposes of the case, that the plaintiffs were aware of it and that Subah Lal's adverse possession began in 1913. On the findings of fact arrived at by the lower appellate Court, it is not possible to distinguish this case from Ali v. Hafiz Abdullah decided by a Division Bench of this Court in a Letters Patent appeal reported in Hafiz Abdullah v. Ali A.I.R. 1923 All. 291. The learned Judges observed as follows:

The mere possession of the house by the brothers or the possession of a mortgagee from thorn would not amount to adverse possession, unless there was what may be deemed to be an ouster of the plaintiffs or their predecessor Maula Baksh. There might be actual ouster, or there might be conduct which would amount to ouster. In the present case what was found was that the two brothers mortgaged the whole house to the mortgages, who remained in possession. From this fact alone it could not be concluded that the plaintiffs or Maula Baksh had been ousted from the house. It was not found by the lower appellate Court that the plaintiffs or Maula Baksh had any information as to the nature of the mortgage effected by the brothers oil Maula Bakah. If two-thirds only had bean mortgaged, the mortgagee would have bean in possession of the house. The more fact therefore of the mortgagee being in possession wan not sufficient to constitute ouster from the property.

13. The case before the Bench was stronger in that they held that the mortgagee's possession would not amount to ouster, unless the plaintiff was aware of the extent of the share mortgaged. It should be noted that, in that case, the mortgagee entered into possession from the start as mortgagee and not, as here, as a lessee.

14. The above case proceeds on the rule laid down by their Lordships of the Privy Council in Corea v. Appuhamy (1912) A.C. 230, which is an authority for the proposition that the relationship between cosharers comes into existence as soon as title is vested in them by the operation of the rules of inheritance; and that actual possession by one of them not accompanied by a denial of the title of the other and not amounting to ouster or anything equivalent thereto, is not adverse.

15. It was contended on behalf of the appellant that Ewaz Ali and others might have been cosharers of the plaintiffs; but their mortgagee (the appellant) was not. Assuming this is so, the appellant's possession has to be pronounced to be adverse before limitation for the plaintiffs' suit is reckoned from the date of the mortgage. To be adverse, it must be such as to be in open denial of the plaintiffs' right. This principle is not peculiar to cosharers, but is applicable to all persons claiming adverse possession. It is true possession is prima facie adverse, but if the apparent circumstances suggest a lawful title in the possessor, his denial of the right of the mortgagor's cosharer, implied in a transaction, not coming to his knowledge cannot set limitation running against him, registration cannot in such a case give rise to the presumption of notice nor can knowledge of the transaction be imputed to the rightful claimant where there is nothing to put him to inquiry. If the appellant's possession as lessee was not adverse to the plaintiff-it is not contended that it was the subsequent execution of a deed of usufructuary mortgage which did not introduce any visible change in the character of the appellant's possession cannot make his possession adverse. Apart 'from this consideration, the transferee of a cosharer can acquire no more than what belongs to his transferor. By the mortgage in favour of the appellants, no more than the share of Ewaz Ali and others passed to him. At the date of the mortgage, his possession, in the eye of the law and as regards title, was that of a cosharer in relation to the plaintiffs. Of course, if the fact that he claimed to be in possession in denial of the plaintiffs' title was known to the plaintiffs, his possession would be adverse to them, just as the possession of his mortgagor would have been so, if he had repudiated the plaintiffs' title to their knowledge. In the absence of repudiation of the plaintiffs' title to their knowledge either by Ewaz Ali and others or by their mortgagees, the possession of neither can be adverse.

16. The case of Prahlad Singh v. Barumal : AIR1931All18 was also referred to in the course of arguments. It was held in that case that:

it is permissible for a person claiming adverse possession to add the period of his possession as usufructuary mortgagee to the period of his possession as a vendee from his usufructuary mortgagor.

17. This rule, so far as it goes, is quite correct, if I may say so with respect. It does not however decide that the possession of the mortgagee of a cosharer is always adverse to the other cosharers. It was apparently common ground in that case that the mortgagee's possession was adverse. In any case, the decision of the learned Judges proceeds on the assumption that it was so. If the mortgagee's possession is adverse to the cosharer of the mortgagor, it is the adverse possession of the mortgage or through his mortgagee and if the mortgagee continues in possession for more than 12 years, it is the mortgaging cosharer who would acquire proprietary rights by prescription, the mortgagee merely obtaining mortgagee rights by adverse possession. If, before the expiry of the period of 12 years the mortgagor sells his interest to the mortgagee or to a third person, he transfers not only such rights as he originally had in the property hut also his possessory right as against his cosharers, which would ripen into ownership if his possession through the mortgagee had been left to continue for full 12 years. In this view I am clearly of opinion that there is no conflict between the case last mentioned and the earlier one which I have followed.

18. For the foregoing reasons I would dismiss the appeal and uphold the decree appealed from.

Sulaiman, J.

19. In this case the learned Judges constituting the Bench who heard it first differed in their opinions. As the order of reference shows there was not much difference of opinion on the point of law that arose in the case, the main difference was as to how the law was to be applied to the admitted facts. Accordingly the point of law which the learned Judges have referred is as follows:

Whether in the circumstances found by the lower appellate Court, the suit was rightly decreed or whether it should have been dismissed as being barred by time under Article 144, Lim. Act?' (After stating facts, his Lordship proceeded.) The substantial question which arose in second appeal was whether in the absence of any proof of knowledge of the usufructuary mortgage, the plaintiffs' claim was barred by time because adverse possession of the defendant commenced from the date of the possessory mortgage.

20. In order to indicate the difference of opinion between the two learned Judges it is necessary to give a brief summary of their conclusions.

21. Mukerji, J., held that:

As a general proposition of law, there can be no doubt, that possession where it is referable to a title, cannot be considered to be adverse and hence a co-owner's possession is prima facie not adverse to the other co-owners.

22. The learned Judge distinguished the case of Corea v. Appuhami [1912] A.C. 230 on the ground that here we were concerned not merely with cosharers but with a third party, viz., the transferee. He then remarked:

So long as possession remained with the sons of Qadir Bakhsh and conceding for the sake of argument, but not admitting so long as possession remained with the tenants of the sons of Qadir Bakhsh, the possession was with co-owners, and that possession could not ordinarily be regarded as adverse to the other co-owners, but as soon as the defendant obtained a usufructuary mortgage from the sons of Qadir Bakhsh and got possession under it, in my opinion it must be taken that the possession of the defendant became adverse to the plaintiffs. The possession of the defendant after the mortgage could not be referred to mere co-ownership of the mortgagors with the plaintiffs. A mortgage of the entire property by one of the proprietors is a clear assertion of adverse title and the possession of the mortgagee is surely adverse to the co-owners of the mortgagors.

23. He accordingly held that the possession of the defendant as a mortgagee was adverse to the plaintiffs and the claim was barred after the lapse of 12 years from that date. He further held that the period of occupation as a usufructuary mortgagee could be tacked on to the period of occupation as a vendee and relied on the case of Prahlad Singh v. Baru Mal : AIR1931All18 , and distinguished the casa of Hafiz Abdullah v. Alii A.I.R. 1923 All. 291.

24. On the other hand Niamatullah, J., held that:

If the appellant's possession as lessee was not adverse to the plaintiffs (it is not contended that it was) the subsequent execution of a deed of usufructuary mortgage which did not introduce any visible change in the character of the appellant's possession cannot make his possession adverse. Apart from this consideration the transferee of a cosharer can acquire no more than what belongs to -his transferor, By the mortgage in favour of the appellants, no more than the share of Ewaz Ali and others passed to him. At the date of the mortgage, his possession in the eye of the law and as regards title, was that of a cosharer in relation to the plaintiffs. Of course if the fact that he claimed to be in possession in denial of the plaintiff's title was known to the plaintiffs his possessionwould be adverse to them, just as the possession of his mortgagor would have been suit he had repudiated the plaintiffs' title to their knowledge. In the absence of repudiation of the plaintiffs' title to their knowledge, either by Ewaz Ali and others or by their mortgagees, the possession of neither can be adverse.

25. As regards the other question the learned Judge observed:

If the mortgagees' possession is adverse to the cosharer of the mortgagor through his mortgagee, and if the mortgagee continue in possession for more than 12 years, it is the mortgaging cosharer who would acquire proprietary rights by prescription, the mortgagee merely obtaining mortgagee rights by adverse possession. If before the expiry of the period of 12 years, the mortgagor sells his interest to the mortgagee or to a third person, he transfers not only such rights as he originally had in the property, but also his possessory right as against his cosharers, which would ripen into ownership, if his possession through the mortgagee had been left to continue for full 12 years.

26. As regards co-owners the law is now well settled that there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the other. Their Lordships of the Privy Council in Gorea v. Appuhami [1912] A.C. 230 approved of the well-known principle recognized by Wood, V.C., that

possession is never considered adverse if it can be referred to a lawful title;

and remarked ;

entering into possession and having a lawful title to enter (a cosharer) could not divest himself of that title by pretending that he had no title at all; his title must have enured for the benefit of his co-proprietors.

27. It is however clear that their Lordships did not mean to suggest that a co-owner can never acquire adverse possession against other co-owners, even though he openly declares himself that he had exclusive possession as an owner of the whole and he does so to the knowledge of the other co-owners. What was obviously meant by Wood, V. C, was that possession by itself is never considered adverse if it can be referred to a lawful title. If however exclusive possession of one co-owner is accompanied by an open assertion of adverse title which amounts to an ouster of the other co-owners, and the fact of such assertion is brought to their knowledge there is nothing to prevent the character of his possession from changing into adverse. This is so even when co-ownership existed be-lore any adverse possession could commence. But where a person has begun to hold possession adversely to certain cosharers and then before the statutory period of limitation he succeeds to the title of one of them, his possession may continue to be adverse to the other co-sharers, though he has become jointly interested in the latter : N. Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44.

28. When co-owners are jointly entitled to a property each of them has a right to enjoy the whole property but without excluding the others. It follows that the mere fact that one cosharer is in possession of the whole property at any time does not necessarily imply his denial of the title of his co-owners, their ouster or any assertion of adverse possession against them. If the other co-owners find no occasion to effectively enjoy the property at the time, they need not mind the possession by one of them. In the eye of the law they are deemed to be in constructive possession of the joint property. The position becomes different when their title has been denied and their right of enjoyment of the property has been repudiated to their knowledge. From that moment the character of the possession of the cosharer changes, and it becomes adverse against those who have knowledge of the ouster, and time begins to run against them. I am not saying that if the adverse possession of a person commenced before he was a co-owner the mere fact that he subsequently acquires a share too in the property would necessarily break the continuity of his adverse possession. But where from the very commencement of possession, there was co-ownership, the possession of one must prima facie be deemed to be permissive and not adverse.

29. The question in the present case is whether the same principle can be extended to a transferee from a co-owner who professedly takes a transfer of the whole property. There is some conflict of judicial opinion on this question. In Abdul Ghafur v. Ashmat Bibi [1919] 54 I.C. 385, a Bench of the Madras High Court held that the entry of an alienee from a co-transferee into the property alienated is adverse to the co-transferees from the very moment of that entry. Reliance was mainly placed on certain previous rulings, without examining the question afresh. This case was followed by single Judges of the Lahore High Court in the cases of Anivar v. Kishan Singh A.I.R. 1922 Lah. 205 and Ibrahim v. Ali Mohammad A.I.R. 1930 Lah. 214, and by a learned Judge of the Rangoon High Court in the case of Mating Tun U v. Maung Tun Aung A.I.R. 1927 Rang. 158.

30. In the case of Hafiz Abdullah v. Alii A.I.R. 1923 All. 291, a Bench of this Court held that the mere possession of a house by the brothers or the possession of a mortgagee from them would not amount to adverse possession, unless there was what may be deemed to be an ouster of the plaintiffs or their predecessor Maula Baksh. In that case it was found that the two brothers mortgaged the whole house to the mortgagee who remained in possession, and it was held that from that fact alone it could not be concluded that the plaintiffs had been ousted from the house. The case however was peculiar inasmuch as the mortgage had been redeemed and the brothers who had made the mortgage had taken back possession by the time the suit was instituted. They were asserting their own adverse possession and wanted to count the period of occupation by their mortgagee. This case has been followed in the cases of Vaiyapuri Chettiar v. Subramania Chetriar : AIR1929Mad27 , and Ghulam Mohammad v. Mt. Begam A.I.R. 1930 Lah. 251 sea also Sheoraj v. Ajudhia A.I.R. 1929 Oudh. 284. The case law has been recently reviewed in an elaborate judgment delivered by a Bench of the Oudh Chief Court in Halim Shah v. Rahim Bux A.I.R. 1930 Oudh 475.

31. It is contended before me that there is a marked distinction between a co-owner who started with permissive possession originally but wanted to change the character of his possession so as to make it adverse, and a transferee from a co-owner who from the very start has been asserting his adverse possession. It is accordingly urged that the principle governing the possession by co-owners should not be applied to transferees from co-owners. But if this argument were accepted, the same legal position would arise in the case of heirs of a co-owner who had asserted his exclusive and adverse possession before his death.

32. It cannot be disputed that the underlying principle is that the possession by one co-owner of the entire joint property is perfectly lawful as he has the title not only to his undivided share but to the whole of the property, and had possession of the whole property as well as of every undivided part. An owner of an undivided share in a property can be rightly in possession of the whole. The possession by him of the entire common property is therefore referable to his legal title and is not adverse to the other cosharers.

33. It would follow that there can be no difference in principle whether a person is the original co-owner, or has become a co-owner by virtue of a transfer. From the moment of his acquiring a share in the common property he becomes a co-owner and has the same legal title as his predecessor to enjoy the whole. His possession of the whole is equally referable to his legal title and his possession need not necessarily be adverse. The other co-owners, if they have actually no knowledge of the extent of the share transferred, are entitled to presume that their co-owner has transferred his own interest only and that the transferee by virtue of his right to that share is enjoying possession of the whole property. The more fact that a transferee is in possession would not put them on inquiry, for the transferee has just as much right to enjoy the whole property-as his transferor had. The principle of law based on the mere fact of co-ownership would apply with equal force to a transferee from a co-owner, who steps into the shoes of his vendor. A co-owner has no duty cast upon him to watch the conduct of another co-owner and be on the look-out to find out the extent of the share purported to be transferred by him, and to intervene if more than the real share has been transferred. He is entitled to assume that the permissive nature of the possession has passed on to his co-owner's transferee who has now become the co-owner in place of the original co-owner. Of course, if the assertion of| title to the whole is brought to his knowledge, and it is accompanied by his ouster and exclusion, adverse possession would then commence as against him. The burden therefore would be on the transferee to establish that the denial of title and ouster were brought to the knowledge of the other co-owner and in the absence of such proof he would not be able to perfect his adverse possession.

34. The second question which arose for consideration was whether the defendant was entitled to tack on the period of his occupation as the usufructuary mortgagee to the period of his possession as a vendee. If a co-owner is in possession of the| whole of the joint property and asserting his exclusive title makes a possessory mortgage of the whole and knowledge of] the fact is communicated to his co-owners, he, can certainly treat his mortgagee's possession as his own constructive pos-j session, and count the period of occupation by his mortgagee as a part of the period of his own adverse possession. But where the possession of the co-owner himself was not adverse to his co-owners, and it is not he, but his mortgagee who, having become his subsequent vendee, is setting up adverse possession, then the mortgagee vendee would not be able to join the two periods together in order to complete his period of prescription for acquiring full title. When a person is] in possession of the property in the capacity of a usufructuary mortgagee, unlawfully against the true owners, the only title which he can acquire by adverse possession is that of a mortgagee. If that title is perfected, he would be entitled to insist on being redeemed. But he could not after a lapse of 12 years' possession as a usufructuary mortgagee, successfully claim to have acquired the full proprietary interest. He can never acquire title which he did not profess to hold during his possession as mortgagee. In such an event he cannot add his period of mortgage to the period of occupation as vendee in order to complete 12 years' adverse possession as a fall owner. Only his title as a mortgagee would be unimpeachable.

35. In the case of Prahlad Singh v. Baru Mal : AIR1931All18 , on which reliance has been placed, there was no question of a mortgage having been made by a co-owner, followed by a subsequent sale. There Mt. Manohari had first held permissive possession of the shop, but it was assumed, presumably on the pleadings, that she could set up adverse possession. Accordingly it was held that the plaintiff's claim against her transferee had become barred by time because of the lapse of 12 years from the initial assertion of adverse possession by her. I do not imagine that the learned Judges meant to lay down that even if a licensee is estopped under Section 116, Evidence Act, from denying the title of the true owner, until she has first given up possession, her mortgagee can nevertheless set up the licensee mortgagor's adverse possession of the whole proprietary interest for his own mortgagee's benefit.

36. No doubt adverse possession is a mixed question of law and fact; but the findings of the lower appellate Court that the plaintiffs had no reason to suspect the conduct of Ewaz Ali must be accepted in second appeal. In the absence of any proof that knowledge of the extent of the property mortgaged was communicated to the other co-owners, the defendant's possession did not become adverse as against them. It is not clear that it became adverse even after the execution of the sale deed of 1918. But even if the possession since 1913 had been adverse, it would not have been open to the defendant to tack on the period 1910-13 so as to acquire full title by prescription.

37. It must not be understood to imply that Section 41, T.P. Act, cannot be applicable to a transferee from a co-owner where he fulfils the requirements of that section. I may note that no question has arisen in this case as to the defendant having taken a transfer from an ostensible owner after having taken reasonable care to ascertain that the transferor had power to make the transfer and acted in good faith.

38. My answer to the question referred therefore is that in the circumstances found by the lower appellate Court, the suit was rightly decreed, as it was not barred by time under Article 144, Lim. Act.


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