1. This is an appeal by the plaintiff against the appellate judgment of the Addl. District Judge of Bernampur reversing the judgment of the Addl. Munsif of Aska and dismissing the plaintiff's suit for partition of a house.
2. The house in dispute originally belonged to one Saudagar Ismail who died leaving two sons named Md. Issack and Abdul Waheb. On 29-3-1934, the plaintiff obtained a sale deed from Md. Issack by which the latter purported to convey to him the whole of the house alleging that he was the sole owner of the same. On 3-10-1934, however deft. 3 obtained a sale deed from one Kundana Bibi, the widow of Abdul Waheb, by which she purported to convey to him the whole house alleging that she was the sole owner of the same.
As was to be expected, disputes started between the two purchasers and the plaintiff instituted a suit (O. S. No. 311/37) for recovery of possession of the whole house. His suit was decreed by the then Addl. Munsif of Aska. But on appeal (Appeal No. 26/38) the Subordinate Judge of Berhampur modified the Judgment of the trial court and decreed the plaintiff's suit, to the extent of eight annas share of the house only.
He further gave a direction to the effect that the plaintiff was entitled to possess his eight annas share jointly with the other co-shares so long as no partition was effected. The decision of the appellate court was given on 6-4-1933. The present suit was brought by the plaintiff on 30-1-1947 for partition basing his claim mainly on the decision of the appellate court mentioned above so far as the right to eight annas share Was concerned.
3. The trial court had no difficulty in decreeing the plaintiff's suit inasmuch as the title between the parties had been completely adjudicated in the previous litigation. The lower appellate court, however, held that on the admission of the plaintiff himself he was completely out of possession ever since the date of his purchase from Md. Issack on 29-3-1934 and that a case of ouster for more than the statutory period of twelve years had been clearly made out. He therefore dismissed the plaintiff's suit.
4. The only point for consideration in the second appeal is whether on the evidence adduced in the case the lower appellate court was justified in holding that a case of ouster was made out. In his deposition in the present litigation the plaintiff stated that he was never in possession of the suit house and that defendant 3 was in possession ever since the date of his purchase on 3-10-1934.
Doubtless, this admission of the plaintiff by itself would not suffice to show that he lost his title by ouster. It is well known that as between two co-shares mere possession by one co-sharer would not constitute ouster unless there is some material to justify an inference that he either expressly or by implication refused to allow the other co-owner to be in possession or to participate in the enjoyment of the Joint property. This principle of ouster as amongst the original co-sharers applies with equal force as against the alienees from the co-sharers also (see -- 'Dipnarain Bai v. Pundeo Rai, AIR 1947 Pat 99(A) ).
5. The plaintiff's deposition therefore does not make out a case of ouster. It does not show that defendant 3, when he obtained possession on 3-10-1934, denied the plaintiff's title and re, fused to allow him to participate in the enjoyment of the income from the property. The lower appellate court was fully conscious of this difficulty but thought that the plaintiff's deposition (Ex. C) in the previous litigation (O. S. No. 311/37) contained admissions which established ouster beyond any doubt.
The admissibility of this deposition was however challenged on the ground that the plaintiff's attention was not drawn to the same as required by Section 145, Evidence Act. For the purpose of deciding this appeal it is unnecessary to discuss this question further. Even if it be assumed that Ex. C is admissible we are not satisfied that the admissions made by the plaintiff there would constitute ouster.
6. In that deposition the plaintiff stated in examination-in-chief that after his purchase of the house from Md. Issack (29-3-34) he obtained possession for about fifteen days but that subsequently Kundana Bibi and some ther co. sharers came and forcibly occupied the house one mid-night. Next day morning he questioned them; whereupon they replied that the house mover belonged to his vendor Md. Issack and claimed the house as their own.
This forcible occupation by the vendors of defendant 3 within fifteen days of the execution of the plaintiff's sale deed (29-3-34) and their statement to him that his vendor had no title was held sufficient by the lower appellate court to constitute ouster. But apparently be has not carefully read the answers given by the plaintiff during his cross-examination. Therein he stated that one Judhisthir Sasmal was occupying the house as a lessee and that he attorned to the plaintiff by executing a lease in his favour.
This Judhisthir Sasmal also occupied the house for about one and a half months after the date of the execution of the sale deed (29-3-34). Thus the plaintiff's admission in the deposition, merely shows that though the vendors of defendant 3 forcibly occupied a portion of the house within fifteen days of 29-3-34, a tenant who had attorned to the plaintiff also remained in Joint occupation for a month more.
Thus for a period of one month after the repudiation of the plaintiff's title by the vendors of defendant 3, they allowed a tenant of the plaintiff to remain in joint possession of the house. Such joint possession would negative any theory of ouster as between the two co-owners. There is absolutely no evidence on record to show that on any subsequent occasion either defendant 3 or his vendors (till the institution of O. S. No. 311/37) challenged the plaintiff's title to any Interest in the house or refused to allow him to remain in joint possession.
Such challenge was made only at the time of the previous litigation. Hence, for the our, pose of computing limitation, time will not run from 1934 as wrongly thought by the lower appellate court but only from 1937. The present suit was brought well within the period of limitation from the latter date. If the defendants claimed exclusive title on the ground that the plaintiff had lost his rights by ouster they should have established it by clear and cogent evidence.
7. I would, therefore, allow the appeal, set aside the judgment of the lower appellate court and restore the judgment and decree of the trial court with costs throughout.
8. I agree.