1. This appeal arises out of a suit for possession of a share in an occupancy holding and for damages. The suit was dismissed after a careful trial by the Munsif bub decreed by the learned Additional Subordinate Judge and the defendants appeal. The case involves one question of fact and two of law. The original title depended on the question of fact whether the plaintiff's father was joint with or separate from the other branches of the family. The Courts below differed on this point. The finding of the lower Appellate Court which must be accepted is that the plaintiff's father was separate and, therefore, his share descended to his daughter.
2. The main question of law is one of limitation. The suit is governed by Article 142 of the Limitation Act and, therefore, it was necessary for the plaintiff to prove possession within twelve years. She alleged in her plaint that she was in possession of the share till the defendants took wrongful possession at the commencement of Fasli 1325 (para 3 of the plaint). The learned Munsif found that she had in fact been out of possession for at least 31 years. Her father died 35 years ago and her mother not more than,, four years later and since then the plaintiff has never had actual possession of the share. The learned Additional Subordinate Judge does not differ from these findings. He gets over the difficulty by applying the doctrine of constructive possession and treating the possession of the defendants as possession on behalf of the plaintiff. He also says, that as there is no proof of denial of the plaintiff's title and the plaintiff's name appeared in the revenue records within twelve years of suit adverse possession for twelve years is not established.
3. It appears to me that it is an abuse of the doctrine of constructive possession to apply it to the circumstances of the present case. The plaintiff's own case is that there has been an ouster as a result of which she claims considerable damages for dispossession. The only question is when that ouster took place. She says that it was in F. 1325 within three years of the suit. In reality (for in the absence of any finding to the contrary I have no hesitation in accepting the finding of the Trial Court on this point) it took place over thirty years before suit. The Ceylon Privy Council case Corea v. Appuhamy (1912) A.C. 230 : 81 L.J.P.C. 151 : 105 L.T. 836, which is relied on by the respondent was a case between brother and sister and it recognises that there are oases in which ouster may be inferred from the circumstances. In Varatha Pillai v. Jeevarathnamm&l; 53 Ind. Cas. 901 : 46 I.A. 285 : 43 M. 244 : (1919) M.W.N. 724 : 10 L.W. 679 : 24 C.W.N. 346 : 38 M.L.T. 313 : 18 A.L.J. 274 : 2 U.P.L.R. (P.C.) 64 : 22 Bom. L.R. 444, the Privy Council expressed a doubt whether the rule of possession by one co-owner applies to sharers in an unpartitioned agricultural village in India who are not members of a joint family, but without deciding the point they quote with approval the rule laid down in Culley v. Doe d Taylerson (1840) 11 : a. and E. 1008 : 3 P. andD. 539 : 9 L.J.Q.B. 288 : 113 E.R. 697 : 52 R.R. 566, that even where the rule is applicable, if a tenant in common has not been in participation of the rents and profits for a considerable length of time and other Circumstances concur the Judge may direct the jury to consider whether in the circumstances they will not find that there has been an ouster. In this case it is common ground that there had been an ouster at the time of suit. The plaintiff said that it took place in 1325 F. That case is false. The actual ouster, was when the defendants took exclusive possession of the holding on the death of Earn Sahai's widow. Under these circumstances, to say that they were holding possession on the plaintiff's behalf is in my opinion to apply a legal fiction quite at variance with the facts of the case.
4. I accordingly allow the appeal and setting aside the decree of the Court below restore the decree of the Trial Court with costs in all Courts.