1. This is a defendant's appeal against a decree of the lower Appellate Court reversing a decree of the Court of first instance dismissing the plaintiff's claim. The plaintiff brought the suit out of which this appeal arises for partition of a house alleging that she was the owner of a half share therein. The learned Munsif dismissed the claim but the learned Civil Judge reversed the decision of the Court of first instance and decreed the-claim for partition to the extent of a 2/5th share. The facts as found establish that this house was originally owned by one Maula Bakhsh who left two sons-Mahibullah and Abdul Latif. By a sale deed dated 8th July 1931, Abdul Latif transferred his share in the property which he alleged was one-half to the plaintiff. The defence was that Abdul Latif was not the son of Maula Bakhsh and that consequently the plaintiff had no interest whatsoever in the disputed house. It was further pleaded that if Abdul Latif had a share in the disputed house then he had permitted dealings with this house and consequently the plaintiff's claim was barred by Section 41, T.P. Act. Neither of these defences found favour with the lower Appellate Court which eventually held that plaintiff was entitled to a 2/5th share and granted partition upon that basis.
2. In second appeal before me Mr. Panna Lal has argued that the plaintiff's claim was clearly barred by limitation and has contended that upon that ground the claim for partition should have been dismissed. It is to be observed that limitation was never pleaded by the defendants or either of them and no issue was framed upon the question by the trial Court. From the judgments of the two Courts it is abundantly clear that the point was never raised even in argument and consequently there are no findings upon the question by either of the lower Courts.
3. Counsel for the plaintiff-respondents has very properly argued that this point is not open to the appellant as it is an entirely new point upon which findings have not been recorded by the lower Courts. On the other hand counsel for the appellant argues that no findings of fact are necessary to determine this question of limitation because it is clear from the findings contained in the judgment of the lower Appellate Court that the claim was well out of time.
4. There can be no doubt that on 6th October 1915 Mahibullah, the brother of Abdul Latif, together with his mother, Mt. Umda, mortgaged the whole of the disputed house to Rahim Bakhsh, and on 15th, September 1919 Rahim Bakhsh transferred his rights to Abdul Rahman. Later, Abdul Rahman purchased the equity of redemption and obtained formal possession in March 1924. On 17th October 1925 Abdul Rahman executed a simple mortgage of the house in favour of defendant 3 and in 1931 defendant 3 filed a suit on the basis of this mortgage and eventually purchased the whole property. It was on these transfers that the defendants based their plea that the suit was barred by reason of Section 41, T.P. Act. Now, it is argued that these transfers make it abundantly clear that Abdul Latif was ousted from his share on 6th October 1915 and thereafter the possession of his co-sharer and his successors has been adverse for more than 12 years.
5. Possession of one co-sharer is presumed to be possession on behalf of all, but a co-sharer may oust another co-sharer. It is said here that by mortgaging the whole of the property on 6th October 1915, there was such an ouster. The mortgagors mortgaged the property as their own and quite clearly intended to oust Abdul Latif. Counsel for the appellant argues that time began to run against Abdul Latif immediately on the execution of that mortgage, but that of course would depend upon whether Abdul Latif was not under any legal disability at the time. We have no evidence on the record as to whether Abdul Latif was or was not under a disability and therefore it is quite impossible to say that time ran against him without knowing more about the facts of the case. This is one of the obvious difficulties which arises when a new point is taken for the first time in an Appellate Court which is not concerned with the findings of fact.
6. There is further no finding that Abdul Latif was aware of these mortgages and transfers, but it has been contended that his knowledge is immaterial. The first transaction, viz. the mortgage of 6th October 1915 was a usufructuary mortgage, but there is no finding that the mortgagee ever took possession and there are words in the judgment which would suggest the contrary. If the mortgagee never took possession, then it might well be that Abdul Latif knew nothing of this transaction and he may possibly have known nothing until 1923 when the transferee of the mortgagee actually took possession of this property. If time began to run from 1923, these proceedings would be in time.
7. Reliance has been placed by counsel for the appellant upon two recent cases decided by their Lordships of the Privy Council. In Secretary of state v. Debendra Lal Khan their Lordships held that while possession to be adverse must be adequate in continuity, in publicity and in extent, it is not necessary that it should be shown to have been brought to the knowledge of the true owner. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought, if he exercises due vigilance, to be aware of what is happening. If the mortgagee under the mortgage executed on 6th October 1915 did not take possession, then the possession of Abdul Latif's co-sharer was not so open that Abdul Latif should have with the exercise of due vigilance been aware of what has happened. A co-sharer may mortgage his own share and if he is in possession of the property may put a tenant or even his mortgagee in possession. These acts need not necessarily suggest to the other co-sharer that he is being ousted from his share.
8. In Srischandra Nandy v. Baijnath Jugal Kishore their Lordships again held that possession, in order to be adverse, must be adequate in continuity, in publicity and in extent and that it was not necessary that adverse possession should be shown to have been brought to the knowledge of the rightful owner. It was sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time was running could, if he exercised due vigilance, be aware of what was happening. The real question according to their Lordships was whether the acts done by the adverse claimant were of such a character that the rightful owner, being reasonably vigilant, ought to have noticed and so noticing would have been put on his guard. As I have already pointed out, a co-sharer can mortgage his share and the fact that a mortgage had been made in this case would not of necessity put Abdul Latif on his guard. In order that time should run against a co-sharer, the acts of the other co-sharer who is claiming the whole property must be open and of such a kind that the ousted co-sharer if he was vigilant would be bound to know that his co-sharer was proceeding to oust him from his share of the property. In my judgment nothing of that kind occurred in this case certainly up to the year 1923, and that being so it cannot be said that time had run against Abdul Latif and the plaintiff before this suit was brought.
9. In any event I am satisfied that the appellant cannot raise a point of limitation at this stage. It has been repeatedly held in this Court and also laid down by the Full Bench decision in Ram Kinkar Rai v. Tufani Ahir : AIR1931All35 that the Court should not entertain a new point in second appeal when all the materials for the decision of such a point are not before the Court. If it is necessary to frame an issue and call upon the lower Court to record the finding upon such issue before the new point can be decided, then the Court should not permit such a point to be raised. In this case it would be impossible to hold with certainty that time began to run against Abdul Latif in 1915 without a further investigation of the facts because, as I have stated, I am quite unable to say whether Abdul Latif was or was not under any legal disability at that time. Further, in a recent case decided by their Lordships of the Privy Council it was laid down categorically that the Court should not permit a party to raise the defence of limitation for the first time in an Appellate Court. Delivering the judgment of their Lordships in M. Virayya v. M. Adenna Lord Tomlin observed at p. 21:
It is true that the Limitation Act was mentioned in Adenna's written statement and in his grounds of appeal, but before the trial Judge no issue was directed to bear upon the question, nor does the point appear to have been taken at the bar during the trial. In these circumstances their Lordships do not think the point was open on appeal.
10. In my judgment the present case is a stronger case than the case actually before the Privy Council. Their Lordships of the Privy Council were considering an appeal from a first appeal decided by the High Court of Madras. In the suit the plea of limitation had been raised and a point as to limitation taken in the memorandum of appeal, yet their Lordships would not entertain an argument based upon limitation because no issue had been framed in the trial Court and no findings have been recorded relating to such plea. The present appeal is a second appeal in which this Court is not concerned with ascertaining the facts. The facts as found by the lower Appellate Court must be accepted and here no mention of limitation has been made in the pleadings in argument or in any memorandum of appeal. It was first mentioned in this Court. In my judgment I am bound to hold upon the authority of M. Virayya v. M. Adenna that the appellant is not entitled to raise this new point of limitation at this stage. For the reasons which I have given this appeal fails and is dismissed with costs. Leave to appeal under Letters Patent is refused.