V.K. Mehrotra, J.
1. This second appeal has been filed by a defendant who has lost in both the courts below.
2. The case with which the plaintiff respondents approached the court was that they were co-sharers of a Gola (granary) known as Gola Babu Lalji situate in the city of Gorakhpur. The defendant had only half share in that Gola, in spite whereof he constructed a tin-shed on a portion of the Gola denoted by letters A B C D in the sketch plan at the foot of the plaint. The plaintiffs asked him to remove the construction but with no result. Hence, they had to bring the suit, inter alia, for the recovery of joint possession over the portion of Gola covered by the tin-shed as well as for removal of tin-shed by its demolition.
3. The defendants contested the suit and claimed to be the exclusive owner of the property over which he had constructed the Gola. His case was that the portion of the Gola over which he had made the construction fell to his share in a partition between the various co-sharers in the year 1950. The plaintiffs, therefore, could not seek any decree in respect thereof. They also pleaded that the valuation of the suit had deliberately been shown to be less than the real value of the subject matter. Some other pleas were also taken.
4. The learned Munsif, in whose Court the case was instituted, recorder a finding on the question as to whether the suit had been undervalued. This finding was in favour of the defendant. The finding was followed by the transfer of the suit for trial to the Court of the Civil Judge. The order of transfer was passed by the District Judge on 1st June, 1967. The Civil Judge has dealt with the various issues which were framed in the case. One of these issues, namely, issue 9 was whether the defendant had perfected his title by adverse possession against the plaintiffs over the disputed property? The learned Judge dealt with the evidence led by the parties in the case and found this issue against the defendant. That finding was affirmed by the lower appellate Court.
5. The first issue which had been framed in the case was whether the plaintiffs and the defendant were jointowners of the land in suit and the second issue was whether the land in suit fell to the share of the defendant in any private partition in the year 1950 between the co-sharers as alleged by them,
6. These two issues were considered together by the trial Judge who concluded, on appreciation of the evidence on record, that there was no private partition and that the property in suit was joint property of the parties. On these principal findings, he decreed the suit in part. While a decree for recovery of joint possession over the land in suit shown by letters, Ka, Kha Ga, Gha, in the Commissioner's map (paper No. 92C) was passed in the case, the trial Judge refused the other reliefs prayed for, by the plaintiffs by dismissing their suit in regard to them. Feeling aggrieved, the defendants took the matter in appeal.
7. The lower appellate Court, after re-appraisal of the evidence on record concurred with the view of the trial Judge about the parties being joint owners of the property in suit. It affirmed the decree by dismissing the appeal. This is how the defendant has approached this Court in the present second appeal for redress.
8. The principal submissions which were made by the learned counsel for the appellant were that the suit had been instituted in a wrong Court and that the defect so occurring could not be cured by the subsequent order of transfer made by the District Judge of the case to the Civil Judge. In support of this submission reliance was placed on a Division Bench judgment of this Court in the case of Pachaoni Awasthi v. Ilahi Bakhsh ((1882) ILR 4 All 478). That was a case which turned upon the provisions of C. P. C. of 1877 (Act No. X of 1877). The Bench was dealing with a case wherein the suit was instituted in the Court of the City Munsif. It was later transferred to the court of the Subordinate Judge by an order passed under Section 25 of the Act. The cause of action had arisen within the jurisdiction of the Munsif in whose Court the suit was instituted. The Subordinate Judge dealt with the objection raised before him about the suit having been instituted In a wrong Court and directed the return of the plaint for its presentation to the proper Court of the Munsif. This order was assailed in an appeal by the plaintiff to the District Judge who held that since the suit had been transferred to the Court of Subordinate Judge, the said Judge could proceed to deal with it on merits and directed so. The defendant invoked the revisional jurisdiction of the High Court in the matter. The Bench allowed the application in revision and observed that, the order passed by the District Judge under Section 25, C. P. C, could not cure any defect of jurisdiction in regard to the institution of the suit.
9. Relying upon the observation aforesaid, it was urged by the learned counsel for the appellant that the mere fact that the case had been transferred for trial by the Civil Judge could not cure the defect of initial wrong presentation of the suit. This submission overlooks that the case which was being dealt with by the Division Bench was one in which the suit had been instituted in the Court of a Munsif other than the one in whose jurisdiction the cause of action had arisen. Besides, the phraseology of Section 25, C. P. C. of the year 1877 was different from that of Section 24 of the Code of 1908. In the latter, the District Judge was empowered to make a transfer at any stage of the proceedings by adding those words in specific terms. The report of the case does not show any reason on which account, this Court felt that the defect in the initial presentation of the suit could not be cured. However, since the law declared by the Division Bench related to a provision different from the one which was in force at the time of the decision of the present case, it is not necessary to pursue the matter any further.
10. The next submission of the learned counsel has been that even on the findings recorded by the Courts below, a case of ouster was made out as against the plaintiffs. They would not, therefore, be granted a decree for joint possession. Support has been sought from the decision of a Division Bench of the Kerala High Court in the case of Velliyottummel Sooppi v. Nadukandy Moosa : AIR1969Ker222 , A perusal of the report would make it clear that even in the opinion of the learned Judge, who delivered judgment in that case, ouster had to be pleadedand proved as a positive matter. It could not be inferred from the negative animus. The learned Judge observed, inter alia, as follows (at p. 226):--
'Ouster is certainly a positive matter; and the hostile animus necessary to constitute ouster must also be a positive matter. It is a matter involving action; it cannot be mere inaction. If the co-owner in possession did not give a share of the income to the co-owner out of possession merely because the latter did not ask for it, then, such animus may be only a negative animus. On the other hand, if the evidence shows that even if the co-owner out of possession demanded his share the co-owner in possession would not have given him a share, then the animus is positive, in the sense that it is indicative of an animus to exclude. For entertaining a hostile animus to oust the real owner, the person in possession need not know who the real owner is. If he has the animus to hold the property as his against the whole world including the real owner, whoever he be, known or unknown, the animus is sufficiently hostile to exclude the real owner also'.
11. On the facts found in the present case, it is obvious that the necessary hostile animus has not been established by the defendants.
12. The two principal submissions made by the learned counsel for the appellant fail and with them fails the appeal which is dismissed but without any orders as to costs.