1. These two appeals arise out of one and the same judgment. I will first take up S.A. No. 624 of 1938. The suit was for possession of 5 annas, 8 pies odd of zamindari property. The defence inter alia was that the suit was barred by limitation. Azim Ullah Khan was the original owner of a 7 annas share including the shares which are now in dispute. He died in 1892 and on his death mutation was effected in the name of his son, Bahadur Ali. Azim Ullah Khan also left four daughters. These were: (1) Mt. Anjam, plaintiff 3, (2) Mt. Mabi, deceased, whose daughter is Mt. Rahiman, plaintiff 5, (3) Mt. Illahi Bibi, deceased, whose son and daughter are Subhan Khan and Mt. Ghafuran, plaintiffs 1 and 2 respectively, (4) Mt. Shahzadi, deceased, whose grandson is Nawab Khan, plaintiff 4. The father of this plaintiff is dead. Although Bahadur Ali had four sisters, his name alone was mutated against the property. Bahadur Ali died in 1919, leaving a widow, three sons and two daughters. The widow was Mt. Bari Bahoo, and she survived until 1930. The three sons were Sardar Ali, deceased, Kasim Ali, plaintiff 7, and Akbar Ali Khan, defendant 2, and the two daughters were Mt. Hashmat Bibi, plaintiff 6. and Mt. Habiban, plaintiff 8. On the death of Bahadur Ali, the property was mutated in the name of Mt. Bari Bahoo.
2. In 1913 Mt. Bari Bahoo and her three sons executed a simple mortgage in favour of a man named Pancham Lal. In 1919, under an instrument executed by Mt. Bari Bahoo alone, which is not on the record and the exact nature of which is not disclosed Pancham Lal was put into possession of the property for a period of 15 years and his name was mutated. On 23rd February 1924 Mt. Bari Bahoo and her sons Akbar Ali, defendant 2, and Sardar Ali, executed a sale deed in respect to this property in favour of defendant 1 for a consideration of Rs. 550. The suit out of which this appeal arises was instituted by the eight plaintiffs on 22nd February 1936. The suit was dismissed by the trial Court, but the lower Appellate Court has reversed that decree and has decreed the suit of some of the plaintiffs while dismissing the claim of others. The appeal before the District Judge was actually filed by four plaintiffs only, namely plaintiffs 1, 2, 3 and 5. The other plaintiffs were impleaded as pro forma respondents and during the pendency of the appeal they were transposed at their request to the array of appellants. The learned Judge has dismissed the suit as against plaintiff 3 for reasons which it is unnecessary to set out for the purposes of this appeal. He has also dismissed the suit of plaintiffs 4, 6, 7 and 8, and that part of the judgment and decree is the subject of the connected appeal (S.A. No. 685 of 1938.)
3. The decision of the appeal with which I am now dealing rests upon the question of limitation, this being the only point which has been argued before me. It is conceded by learned Counsel for both parties that Article 142, Limitation Act, was applicable to this suit. In the plaint it was stated that the defendant-appellant obtained possession of the property in 1934, in which year it was vacated by the mortgagee in accordance with the terms of the instrument of 1919; and this fact was admitted by the defendant-appellant. The plaintiffs alleged that they had no knowledge of the sale deed of 1924 until the defendant took possession of the property in 1934, in which year they were dispossessed. There can, I think, be no doubt that in a suit to which Article 142, Limitation Act, applies the onus lies on the plaintiffs having established their title, to prove that they had been in possession, whether actual or constructive, within 12 years before the institution of the suit. The authority for this is the Full Bench decision in Bhindhyachal Chand v. Ram Gharib Chand : AIR1934All993 .
4. Now it is a well-established proposition of law that the possession by one cosharer is possession on behalf of all the cosharers in the absence of ouster or repudiation of title, and the fact that the non-possessing cosharers were not in receipt of profits will not suffice to establish adverse possession as against them. Up to the year 1919, Mt. Bari Bahoo's name alone stood against the property in the revenue records and up to that year at least no adverse possession as against the plaintiffs is established, for it is not suggested that Mt. Bari Bahoo at any time up to 1919 repudiated the title of the plaintiffs and set up exclusive title in herself. The difficulty begins from 1919 when the mortgagee under the simple mortgage of 1913 was put into possession. There is nothing to show who put him into possession, but presumably it was the mortgagors, namely Mt. Bari Bahoo and her three sons. As I have already said, the mortgagee remained in possession until 1934, when the mortgage was liquidated. In Subah Lal v. Fateh Mohammad : AIR1932All393 , the members of two branches of a Muslim family owned a certain property. The members of one branch, Ewaz Ali and others, executed a usufructuary mortgage in 1910 in favour of a certain person and in 1913 they sold the property to the mortgagee. The members of the other branch instituted a suit in November 1924 for possession. There was a difference of opinion between Mukerji J. and Niamatullah J. and the matter was referred to Sulaiman J. who agreed with the view which had been expressed by Niamatullah J. At page 397 Niamatullah J. observes:.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 eyes 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 plaintiff's title to their knowledge either by Ewaz Ali and others or by their mortgagees, the possession of neither can be adverse.
5. At p. 400 Sulaiman J. says:
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 mere fact that a transferee by virtue of his right to that share 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.
6. The observations which I have cited are directly applicable to the case which is now under appeal. There is nothing to show that the plaintiffs were aware of the fact that their shares in the property left by Azim Ullah Khan had been mortgaged to Pancham Lal and that the latter was in possession otherwise than as a cosharer on behalf of all the cosharers. And there is a finding of fact by the learned Judge of the Court below that such knowledge on the part of the plaintiffs has not been established. In my opinion, the view taken by the lower Appellate Court is right and I accordingly dismiss this appeal with costs. I will now deal with Second Appeal No. 685 of 1938. This is an appeal by plaintiffs 4, 6, 7 and 8. They did not originally join in the appeal, but were impleaded as pro forma respondents. During the pendency of the appeal their names were transposed at their own request to the array of the appellants. The learned Judge has declined to decree their claim, and his reasons for doing so are expressed as follows:
On 22nd December 1937, I held in Court that the question of limitation was decided in favour of appellants 1, 2 and 4 but against appellant S. The respondents' pleader then produced an application on which I noted to this effect on the same day. On 26th January 1938 four other members of the appellants' family who were pro forma respondents applied to me to be made appellants. On 29th January 1938 I ordered the appeal to be amended accordingly. I continued hearing of the appeal on 16th February 1938 and first of all took up the claim of the new appellants 5 to 8. In my opinion their claim cannot be allowed because it was made subsequent to my decision in Court that the appeal must succeed on the point of limitation in favour of appellants 1, 2 and 4. In other words appellants 5 to 8 waited until they knew that the question of limitation had been decided in favour of appellants 1, 2 and 4 before applying to be made appellants. Obviously Order 1, Rule 10, Civil P.C., does not apply to these circumstances.
7. I do not think the position of plaintiffs 4, 6,7 and 8-appellants 5 to 8-is necessarily affected by the circumstance that the learned Judge had delivered his ruling on the plea of limitation. Order 41, Rule 4, Civil P.C., provides:
Where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
8. It is true that the plaintiffs have separate interests in the property, but there can be no doubt that the decree which was appealed against proceeded on a common ground; and the memorandum of appeal in the lower Appellate Court shows that the whole decree was being appealed against. The prayer thereon was that 'the claim of the plaintiffs be decreed,' not 'the claim of the appellants.' The valuation of the appeal was the same as the valuation of the suit, and in para. 5 of the memorandum of appeal it was stated that the reason why the other plaintiffs had not joined in the appeal was that they were away and so they had been impleaded as pro forma respondents. In my opinion the circumstances of this case were such that it was proper for the learned Judge to exercise his discretion under Order 41, Rule 4, Civil P.C., and decree the suit in favour of all the plaintiffs. It is not suggested that the non-appealing plaintiffs had any fuller information about Mt. Bari Bahoo's transactions than was possessed by the appealing plaintiffs. The burden was on the defendant in this respect and no attempt has been made by his learned Counsel to show that he has discharged it. The following decisions are in point: Jagdei v. Sampat Dube : AIR1937All796 and Kundan v. Mam Raj (1922) 9 AIR Lah 57. I allow this appeal and set aside the decree of the lower Appellate Court quoad these appellants. The result is that the suit of all the plaintiffs except plaintiff 3 is decreed. The appellants in this appeal will be entitled to their costs, throughout. Leave to appeal under the Letters Patent is refused.