1. This is a second appeal by the unsuccessful plaintiff whose suit for recovery of possession of a house has been dismissed.
2. The plaintiff is the son of one Jainarain who had a brother Rup Ram and mother named Achchunari Bewa. The plaintiff, his uncle Rup Ram and his grand mother Achchunari were living joint. They own some homestead lands in Khurda and paddy lauds in the adjoining villages. The plaintiff's case is that in or about the year 1924 there was an oral partition of the joint family properties between him and his uncle and that plot No. 533 consisting of 5.379 acres of land and the suit house and plot No. 534 which is the adjoining bari, were allotted to his share. The plaintiff further alleges that he was in possession of these plots, allotted to him, but that the properties stood jointly recorded in the settlement khatian in the names of the plaintiff, Rup Ram and Achchusnari. On 13-8-1.928 Rup Ram and Achehunari executed a 'nadabi deed (Ex. 2) in favour of the plaintiff acknowledging his title to the suit properties and the lands allotted to his share. In 1938 Rup Ram and Achohunari executed an agreement to sell the disputed house in favour of defendant 3 and his sons defendants 1 and 2. The defendants brought a suit against Rup Ram and his mother Achchunari in O. Schedule 86 of 1938 in the Munsif's Court for specific performance of the contract to sell. That suit ended in a compromise decree in execution of which the defendants took delivery of possession of the disputed property on 11-1. 1942 thereby and dispossessed the plaintiff. The plaintiff therefore, filed this suit for recovery of possession of the house on 17-10 1944. The only defence put up by the defendants is that the suit is barred by limitation by reason of their vendors having enjoyed the property openly and adversely to the plaintiff for longer than the statutory period of twelve years. The plaintiff led evidence to show that he was in enjoyment of the property, through tenants, but this was rejected by both the Courts below as unreliable. The evidence on behalf of the defendants was that Rup Ram was always in possession of the suit property for 15 to 20 years. The Courts below, therefore, held that the plaintiff had failed to prove dispossession within 12 years of the suit and accordingly dismissed the plaintiff's suit.
3. The only point to be considered is whether the plaintiff's right to eject has been established. The 'nadabi' deed, dated 13.8-1928(ex. 2) reoites :
'Having partitioned our properties each one of us has been paying rents on the lands and for the house separately, but we have sold some of the lands and the house allotted to us. The properties mentioned in this deed having fallen to your share you have been paying the rents thereon as being in possession, Although the said properties are recorded in our name we are not entitled to them, nor are we paying rents. You having apprehended that we might in future claim these properties, we execute this 'nadabi' deed.' At the time of the execution of this deed, the plaintiff was living at Ittamatti in Nayagarh State, running a grocery shop, and Rup Ram was living at Khurda and-according to the defence evidence-in the disputed house itself. This 'Nadabi' deed amounts to nothing more than an acknowledgment of the plaintiff's title and his right to the exclusive possession of the house. It does not appear that the plaintiff was living in the house or that Rup Ram and his mother Aohohunari surrendered possession of the house on the day the Nadabi deed was executed. The effect of this dooument was that the plaintiff and Rup Ram regarded themselves as co-tenants by reason of the oral partition of the year 1924 and Rup Ram besides acknowledging the plaintiff's title to the suit house undertook not to claim any title thereto. The question that has now to be considered is whether if, notwithstanding this acknowledgment, Rup Ram continued in occupation of the house, such occupation would amount to exclusive occupation by, Rup Ram or dispossession of the plaintiff.
4. Exhibit 5 is the certified copy of a registered sale deed dated 2-1-1937 executed by the plaintiff and his uncle Rup Ram and his grandmother, Achchunari, jointly in favour of one Ramkumar Ram. This document recites that the plaintiff, his uncle and grandmother jointly executed an usufructuary mortgage deed in favour of the vendee on 4.12-1931 and borrowed RS. 400. It further recites that the plots sold thereby, together with the house standing thereon, were in joint enjoyment of the vendors. The description of the boundaries also shows that the vendors had some joint lands in plot No. 537. Exhibits 6 and 7 series show that the Settlement Record is still in the joint names of the plaintiff, his uncle and his grandmother. It would, therefore, appear that in spite of the admission that there was an oral partition-according to the Nadabi deed of the year 1928-the properties were in fact never divided by metea and bounds. In 1981 the joint family borrowed some money and later, in 1937, executed Ex. 5 in order to discharge that debt.
5. Strong reliance was placed on certain house tax receipts produced by the defendants to prove that Rup Ram was in exclusive possession of the suit house. Exhibit F series show that Rup Ram was paying tax for the house to the Union Board of Khurda from the year 1930-31. it is accordingly contended that the possession of Rup Ram became adverse to the plaintiff at least from 1930-the year from which he was paying house tax.
6. Possession must be distinguished from there occupation or detention. Possession in the eye of the law consists of the fact of physical occupation and the mental act of holding the subject of possession to the exclusion of others. The unity of these two elements, namely, occupation and animus possidendi is recognized as constituting 'possession' in the eye of the law. The physical element is not necessarily connected with any bodily contact with the subject of possession. It implies the physical power or possibility of dealing with the subject immediately. Legal possession includes cases of constructive possession, permissive possession and other kinds of possession where the owner is not in direct physical contact. There is perhaps no legal conception more open to a variety of opinion than 'possession' (See Lyall v. Kennedy (1887) 18 Q.B.D. 796.) Possession is a flexible term and is not restricted to mere occupation. Legal possession is occupation with the intention of exercising the right of ownership in respect of it. Mere acts of user which do not interfere and are consistent with the owner's title are not sufficient to constitute dispossession of the owner or start adverse possession in favour of the occupant. Another principle which is well settled is that possession is never considered adverse if it can be referred to a lawful title, Whether, in particular circumstances, the acts of the occupant amount to possession and whether such possession is on behalf of the legal owner or in opposition to his title are matters of inference to be drawn from proved facts.
7. A great deal of argument was directed by Mr. Purohit, counsel for the respondents to the question whether the case was governed by Article 142 or Article 144, Limitation Act, But as we find the evidence sufficient to establish a clear conclusion of fact, it is unnecessary to discuss whether the onus lay on the plaintiff to prove that he was dispossessed within the statutory period or whether it was on the defendants to prove that their predecessor-in-title (Rup Ram) had acquired title by adverse possession. If the appellant's contention is right, the question is whether Rup Ram had adverse possession of the disputed property before 17-10-1932- If the respondents' contention is to be accepted the question is whether the plaintiff had not been dispossessed before that date. Article 142, Limitation Act, prescribes a period of twelve years from the date of dispossession or discontinuance of possession. The expression 'dispossession' has nowhere been defined but there can be no doubt about its meaning. Dispossession involves some element of force or fraud and implies the coming in of a person and his driving out another person from his possession. There can, therefore, be no dispossession unless there is a termination of the possession of the rightful owner, followed by actual possession of another. The test, in such cases, has been laid down by Bramwell L. J. in Ley v. Jack (5 ex. Division p. 273):
'To defeat a title by dispossessing the former owner acts must be done which are inconsistent with the enjoyment of the soil for the purpose for which he intended it. It is, therefore, necessary to look at the position in which the former owner stands towards the property as well as to the acts done by the alleged dispossessor. Acts which prima facie are acts of dispossession may, under particular circumstances, fall short of evidencing any kind of ouster.'
As was observed by Lord Summer 'they may be susceptible of another explanation, bear some other character or have some other object.' (44 Ind. App. 104.)
8. Having regard to the recognition of the plaintiff's title by Rup Ram in 1937 (ex. 5) and the joint loan contracted by them in 1931 it appears to me that the possession of Rup Ram never went beyond mere occupation of the suit house either as a co-tenant with the plaintiff or as his representative. It should be noted that the parties were closely related. The plaintiff was doing business at Ittamatti and had to be absent from Khurda where the property lies. Rup Ram and his mother had no house to live in as the only house allotted to them was-according to the evidence-in a state of disrepair and had been usufructuarily mortgaged. In these circumstances, what could be more natural than that the plaintiff allowed his uncle and grandmother to reside in the house, keep it in good repair and pay the taxes to the Union Board? Conversely, there is no single act done by Rup Ram which is inconsistent with the plaintiff's possession. He never asserted any title hostile to that of the plaintiff. He never dealt with the property till 1938 in exercise of any right in himself, real or fancied, when he purported to execute the agreement to sell the property to the defendants. Even this act cannot be held to be adverse as it is not proved that the plaintiff had any knowledge of this transaction. The plaintiff's allegation of dispossession by the defendants in the year 1942 has, therefore, been established and it has not been proved that; dispossession occurred earlier than that date. In the circumstances since dispossession occurred within twelve years of the suit Article 142, Limitation Act, will not apply and the only article that would be applicable is the residuary Article 144. It is nobody's case that there was discontinuance of possession by the plaintiff. There can be no 'discontinuance' within the meaning of the statute merely because of absence of physical possession. Rup Ram's occupation of the suit house having been found to be no better than that of a representative or a co-tenant or licensee from the plaintiff, the latter's possession continues until the denial of his title is brought to his knowledge. A mere repudiation of the plaintiff's title behind his back is not enough to dispossess him unless it is followed by some overt |act. The payment of house tax is not such an unequivocal act as would be sufficient to attribute hostile intention to Rup Ram. Every occupier of a house is bound to pay tax and as Ex. F series show the payment was made by the occupies or owner, I am, therefore, unable to accede to the contention of Mr. Purohit that these constitute an assertion of hostile intention so as to amount to adverse possession in law, If the plaintiff knew that Rup Ram was asserting his own title and yet omitted to enforce the remedies open to him, there would be discontinuance. But without a voluntary abandonment of possession there can be no such discontinuance. Merely remaining quiescent cannot amount to discontinuance. On the proved facts, therefore, the fair presumption that would arise is that the continued residence of Rup Ram was with the permission of the plaintiff. That Rup Bam never asserted a title in himself is an obvious inference from the facts proved in the case.
9. The Courts below fell into an error in Interpreting physical occupation of Rup Ram and payment of house tax by him as constituting possession adverse to the plaintiff. This appeal accordingly succeeds. The judgments of the Courts below are, reversed and the plaintiff's suit is decreed with costs throughout. The plaintiff shall also be entitled to recover the sum. claimed by him as 'wasilat.'
10. I agree.