1. (19/20th August 1936) - This is a defendants' appeal arising out of a suit for joint possession. The plaintiff is Babu Singh, a nephew of Daulat, and the defendants are also nephews of Daulat, though they are the sons of another brother of Daulat. It is not mow disputed that Daulat became the owner of the tank in dispute. It cannot also be denied, and has not been denied, that both the plaintiff Babu Ram and the defendants being nephews of Daulat succeeded to the tank after his death in equal shares as collaterals. The defendants' case rests entirely on the plea of limitation. In the written statement it was certainly asserted that the defendants and their predecessors had been in adverse possession at the4ime for a long time. But the Courts below did not record a distinct finding that there was actually adverse possession for over 12 years against the plaintiff. All that the finding recorded by the trial Court came to, was that the defendants had been in exclusive possession of this tank, which was joint property and that within 12 years they had spent some money to get the tank dug up. The appellate Court did not go even as far as that. It merely held that as the plaintiff admitted that he had not been in possession for some time before the suit, the suit was one for ejectment on the ground of dispossession and Article 142, Lim. Act, applied to this case.
2. The learned Judge therefore held that the burden was on the plaintiff to prove that he was in joint possession within 12 years of the suit and, having recorded a finding that the plaintiff had failed to discharge that burden, dismissed the suit. In this view he was fortified to some extent by the ruling in Kanhaiya Lal v. Girwar . On appeal a learned Judge of this Court has come to the conclusion that the finding recorded by the lower appellate Court was in no way sufficient for the dismissal of the suit. In this view he is perfectly right. When it was admitted that the parties were co-sharers, then the mere proof of exclusive possession on the part of defendants would not destroy the title and rights of the plaintiff. No doubt when the plaintiff admitted that he was out of possession at the time of the suit Article 142 applied, but having also established that the parties were co-sharers up to 1917, when the defendants purported to transfer the whole tank to the contesting defendants, there would be a presumption of constructive possession in favour of the plaintiff up to the time this title was denied : see Bindhyachal Chand v. Ram Gharib Chand . It has been laid down by their Lordships of the Privy Council in Charles E.V.S. Corea v. Appuhamy (1912) A.C. 230. that in order to destroy a co-sharer's title it must not only be shown that the other co-sharer was in exclusive possession of the joint property, but that there was a denial of title and an ouster of the former co-sharer or something equivalent to it. The mere fact that in a village one co-sharer is in execlusive possession of a joint property would not amount to a denial of title or an ouster so as to destroy his title.
3. Indeed in many cases co-sharers are in separate possession of joint plots and the state of affairs continues until one of them objects. The learned Judge of this Court seems to have thought that there was no denial, express or by necessary implication, of the plaintiff's title till 27th April 1917. The learned Counsel for the defendants urges before us that if the learned Judge was not satisfied with the finding of the lower appellate Court, then there should have been an issue sent down for determination. We would be prepared to order an issue to be sent down for determination if there were at least some evidence showing a denial of title or ouster of the plaintiff earlier than 12 years prior to the suit. We accordingly allow this case to stand out for one week.