1. This appeal has arisen from a suit brought by the appellant for declaration, of his right to half of the tank in dispute and in the alternative for possession. Both the Courts below dismissed the suit as barred by limitation. The plaintiff is one Baboo Singh. The defendants are vendees from Amarjeet Singh and Bijai Bahadur Singh under a sale-deed, dated 27th April 1917. The relationship between the plaintiff Baboo Singh and the defendants vendors will appear from the following pedigree:
A|--------------------------| | |Mangal Singh Debi Singh Daulat| |Baboo Singh, plaintiff ||-------------------------| |Amarjeet Singh Bijai Bahadur Singh,| |----------------Defendants' vendors.
2. It has been found by both the Courts below that the tank in dispute, (No. 708 old and 851 new) was purchased at an auction by Daulat, who acted in that transaction on behalf of himself and his two brothers. Daulat died is sueless and his interest devolved upon his two brothers either by survivorship or by inheritance, a point which is not material, as in either case after the death of Daulat Singh the plaintiff's father and the father of the defendants' vendors were co-sharers. Plaintiff succeeded to the interest of his father, while the defendants' vendors succeeded to the interest of their father. On these facts there can be no doubt that the plaintiff and the defendant's vendors were co-sharers. There was controvergy in the lower Court as to whether Baboo Singh, was in actual enjoyment of the tank or whether Amarjeet Singh and Bijai Bahadur Singh alone were in possession. All of them being co-sharers, possession of any one of them must be considered 'to be constructive possession of all unless the person in actual possession ousted his co-sharers in denial of their rights. There is no suggestion either in the pleadings or evidence that before the sale-deed, dated 27th April 1917, Baboo Singh's right was denied by the defendants' vendors or that Baboo Singh was in any manner ousted from the constructive possession which he must be deemed to have had. On the question of limitation there is another important point which both the lower Courts have overlooked and which has a. very important bearing on that point. The property in dispute is a tank with a belt of part land round about it. It is not suggested in evidence, nor is there any finding in the judgments of the lower Courts, that the tank and the belt of land surrounding it were capable of actual enjoyment. The tank does not appear to be one of those hollow lands which can be cultivated in particular seasons of the years or that it yields any crop of any kind, such as singhara. There is also no suggestion that it yielded any fish which could be the source of income to the owners of the tank. The sale-deed obtained by the defendants describes the property conveyed thereby as a tank measuring 4 bighas 17 biswas with three babool trees standing on its bhita. I have mentioned these facts in detail to show that the rightful owner cannot be considered to be out of possession only because he is not able to establish by evidence definite acts of possession. In such cases possession must follow title.
3. First of all the lower Courts addressed themselves to the question whether Articles 142 or 144 applies. They held that having regard to the allegations contained in the plaint Article 142 is the proper article to apply. Having arrived at that conclusion, they addressed themselves to the further question as to whether the plaintiff established his possession within limitation, that is to say, whether the plaintiff had proved such acts of possession as could be considered to save limitation. As already stated, in this connection they completely ignored the fact that the property is not one in respect of which the plaintiff, or for the matter of that the defendants' vendors, could have exercised any definite acts of possession. They also overlooked the fact that Baboo Singh and the vendors of the defendants being co-sharers, possession of one co-sharer is constructive possession of all. This is not the first case which has recently come to my notice in which subordinate Courts have viewed Article 142, Limitation Act. in such a manner as to make it almost impossible for a plaintiff to establish his possession within limitation in cases in which the plaintiff may well be considered to be in constructive possession through others or his possession must follow his title having regard to the nature of the property. Where property in dispute consists of lands actually cultivated or of house capable of actual occupation and the plaintiff sues for possession of such property on the allegation that he was dispossessed by the defendant, Article 142 is undoubtedly applicable and the plaintiff must show that his dispossession occurred within twelve years before the institution of the suit. In such a case it may be necessary for him to adduce evidence showing when his own possession ceased and that of the defendant or of any other trespasser began. But where the property is of such a nature that it is not capable of actual physical possession or where the property, though capable of physical possession, is in the occupation of one through whom the plaintiff can be in constructive possession, different considerations obviously apply. A man may be in possession of his property without actually occupying it. In considering therefore the question whether the plaintiff was dispossessed within twelve years or whether his possession discontinued within twelve years the nature of the property and the position of those actually occupying it if it is capable of actual occupation, must be taken into consideration.
4. As already stated, in the present case the plaintiff must be deemed to have been in constructive possession of the tank in dispute, even assuming the vendors of the defendants, who were his co-sharers, were alone in possession and the tank was capable of actual possession. The plaintiff's title was never denied expressly or by necessary implication till 27th April 1917, when the defendants obtained a sale-deed from the plaintiff's co-sharers. The sale-deed is a registered document, but the plaintiff cannot be considered to have obtained knowledge of its contents only because it was registered. A subsequent transferee or any other person having occasion to deal with any property may be fixed with notice of a prior registered instrument because he is put to inquiry and is expected to inspect the Registration Office; but a co-sharer cannot be presumed to know the contents of a registered document, executed, by persons who impliedly denied his title by executing the document. It is obviously impossible to expect that every owner of property must periodically inspect the Registration Office to find if any other person has dealt with his property adversely. At the same time if the vendee takes possession of the vended property in a manner which is calculated to give clear notice, to the person whose title is affected by the sale, that his right is denied and he is excluded, the vendee's possession will be adverse. Applying this rule to the present case, if the defendants took possession of the tank and the belt of land around it in a manner amounting to a denial of the plaintiff's right and exclusion of his possession as it was before the sale, the plaintiff's constructive possession terminated, and if the suit was brought more than twelve years after the date of such dispossession or discontinuance of possession, the suit would be undoubtedly 'barred, There is no suggestion in the judgments of the lower Courts that the defendants so conducted themselves in relation to the tank purchased by them as to amount to the plaintiff's dispossession. As already mentioned, the tank and its appurtenance were not capable of enjoyments. The plaintiff's possession must be taken to have continued till the defendants' possession became adverse as regards continuity and extent.
5. The plaintiff's case is that in 1928, there was a dispute between the parties about the cutting of babool trees, and the defendants then set up their exclusive right and possession which necessitated the present declaratory suit. To be on the safe side the plaintiff claimed possession in the alternative. I do not consider that these allegations attract the application of Article 142, Indian Limitation Act. If the question were of importance, I would apply Article 144 to a case of this kind. But as in my opinion it makes no difference having regard to the circumstances of the case, whether Article 142 or Article 144 be applied. I have approached the case: as if Article 142 is applicable. If the plaintiff's allegation is true, his dispossession, occurred in 1928. If it is not true, and. it is not suggested by the defendants that there was any occasion before 1928 when the parties could come in conflict plaintiff's possession must be inferred from his title which was unaffected by anything taking place-before or after the sale-deed of 1917. The property being what is, his possession followed title. In all these circumstances, I am clearly of opinion that the lower Courts have arrived at an incorrect finding in holding that the plaintiff failed to establish his possession within limitation.
6. The learned advocate for the appellant strongly pressed upon me the view that the finding of the lower appellate Court is one of fact and is conclusive in second appeal. It is true that the conclusion is so worded as to amount to a finding, of fact, but it has been arrived at in complete disregard of the legal propositions which are involved in the consideration of the question and which I have indicated above. In my opinion the finding is vitiated by errors of law and it is open to me to interfere with it in second appeal. This is of course, on the assumption that Article 142 is applicable. If Article 144 be applied the finding which does not affirm defendants' adverse possession is beside the mark.
7. One of the pleas put forward by the defendants-respondents was that the plaintiff is not entitled to possession except on payment of compensation for improvements made by them. This plea was embodied in the third issue framed by the trial Court which found that the defendants spent Rs. 288, in re-digging the tank. That Court did not however express any opinion as to whether the defendants are entitled to half of that amount from the plaintiff. The lower appellate Court disposed of the case on the question of limitation without entering into any other question arising in the case. It is unnecessary to make any further enquiry on this point as Mr. Panna Lal, the learned advocate for the appellant expresses his client's readiness to contribute half of the sum spent by the defendants. The result is that I declare the plaintiff's suit to be in time and pass a decree for joint possession in respect of half of the tank. As the defendants' claim to compensation has been conceded. I direct that parties should pay their own costs in all the Courts. The defendants shall be entitled to recover Rs. 144 by execution of decree.
8. N.B. - Leave to appeal under the Letters Patient is granted.