Chamier and Piggott, JJ.
1. This was a suit for possession by partition of a half share in a small property described as Ihata Nidhan Singh in the city of Koil, and consisting apparently of some waste land and the sites of a few houses.
2. The property belonged formerly to two brothers, Nihal Singh and Bhawani Singh. The rights of the former passed to his three grandsons, who in May, 1909, alleging that they were owners of the whole property, sold the whole to the appellant. The appellant admits, however, that by his purchase he acquired only a half share in the property the rights of Bhawani Singh in the other half passed to his son Mathura Prasad, and later in execution of a decree against Mathura Prasad, were sold to two persons who in August, 1909, transferred them to the respondents.
3. The appellant's case is that he was in possession of his half share till March, 1911, when the respondents denied his title. The defence was that the appellant or the persons through whom he claims have not been in possession of the share within 12 years, of this suit and that the respondents have been in adverse possession of the same for more than that period.
4. The Munsif found that, as the appellant had failed to prove possession within twelve years, the suit failed, although the respondents had failed to prove adverse possession by them for more than a very short time. On appeal the Additional District Judge agreed with the Munsif that the appellant had failed to prove possession within limitation, and therefore held that the suit had been rightly dismissed. He went on to hold that as the possession of one of two co-owners could not be regarded as the possession of the other co-owners, the possession of the respondents must be held to have been adverse to the appellant.
5. In second appeal the learned vakil for the appellant did not dispute the correctness of the rule laid down in Jafar Husain v. Mashuq Ali (1892) I.L.R. 14 All. 193, that, where a suit for possession of immovable property is resisted by a plea of adverse possession for more than 12 years, the question of limitation becomes a question of title, and it lies upon the plaintiff in the first instance, to give satisfactory prime facie evidence of possession within 12 years of the suit, but he contended that, as the appellant and the respondents are, as their predecessors were, co-owners, or as English lawyers would say tenants in common of the property, the possession of the respondents was in law that of their co-owner, the appellant, and therefore the suit must be held to have been brought within time, as the respondents have not proved ouster or anything equivalent to ouster of the appellant. Many cases were cited in support of this contention, including that of Jogendra Nath Rai v. Baladeo Das (1907) I.L.R. 35 Cale. 961, which seems to go the whole length of this contention.
6. The learned vakil for the respondents referred us to a number of cases, including two decided by single Judges of this Court, namely, Deba v. Rohtagi Mal (1906) I.L.R. 28 All. 479 and Chiranji Mal v. Nathia (1907) 4 A.L.J. 473, which are not distinguishable in principle from the case now before us and certainly support the contention advanced on behalf of the respondents.
7. We are relieved from the necessity of discussing these cases, for it seems to us that the question is covered by the decision of their Lordships of the Privy Council in a Ceylon case to which our attention was drawn after the conclusion of the arguments, namely, that of Corea v. Appuhamy L.R. (1912) A.C. 230. The plaintiff in the suit had acquired the rights of Balohamy, a daughter of a man named Elias, who died in 1878 leaving as his heirs Balohamy, two other daughters, and a son named Iseris, the principal defendant to the suit. Iseris was in jail when his father died. He came out in December, 1878, and took possession of the whole of the property belonging to himself and his sisters. Balohamy sued for possession in 1908 and Iseris pleaded adverse possession for more than the prescribed period. The plaintiff tried to prove an acknowledgment of her title by Iseris, but failed. Iseris proved only long continued possession on his part of the whole property. The Ceylon courts decided in favour of the defendant, but their decisions were reversed by the Privy Council. It appears to us that the ground upon which their Lordships decided in favour of the plaintiff has no reference to the special terms of the Ceylon Ordinance. It was that the possession of Iseris was in law the possession of his co-owners and that nothing short of ouster or something equivalent to ouster could put an end to that possession. Even the fact that Iseris had for years pretended that he was sole heir of his father and had sworn that the plaintiff was not his sister at all was not considered to justify a presumption of ouster.
8. The case before the Privy Council was a much stronger case than the one now before us. Here there is nothing to show that the respondents denied the appellant's title till shortly before the suit was brought and there is nothing to show that the respondents' predecessors in title ever laid claim to more than a half share in the property. On the contrary they did not attempt to transfer to the respondents more than a half share. In these circumstances it must be presumed that when the respondents took possession of the whole property they did so for themselves and their co-owner.
9. The Judgment of their Lordships recognizes that there may be cases of an exceptional nature in which ouster may be presumed, but we can discover no ground whatever for treating this case as falling in that category. On the contrary, as already pointed out, the respondents' vendors seem to have laid claim to no more than a half share in the property, though they may have been in possession of the whole.
10. In our opinion the appellant was entitled to rely upon the presumption that possession was held by respondents and their predecessors in title on his behalf and it lay upon the respondents to prove that they or their predecessors had sot up an adverse title to the appellant's share to the knowledge of the appellant more than twelve years before the suit. This they failed to do.
11. We allow this appeal, set aside the decree of the lower appellate court and remand the case to that court for decision on the merits, Costs of this appeal will be costs in the cause.