1. This is a plaintiff's appeal in a suit for declaration of title and confirmation of possession of .05 of an acre homestead land. The homestead admittedly belonged to Bhagabat and Sanatan, two brothers. Bhagabat is defendant 1, Sanatan defendant 2 and plaintiff's brother Lachhman's grandson otherwise known as grand nephew of Bhagabat defendant 3 in the suit, Plaintiff claims to have acquired both the shares of Sanatan and Bhagabat by purchase. Purchase from Sanatan was effected according to the plaintiff orally accompanied with delivery of possession. With regard to Bhagabat, it is stated that Bhagabat's wife named Gouri during Bhagabat's absence sold the entire homestead to one Damodar. It is the plaintiff who induced Bhagabat who was living at a far off place, namely, Sambalpur, to institute a suit to recover the property. He was ultimately persuaded to appoint plaintiff's younger brother Lachhman as his authorised agent for conduct of the same. It is stated that plaintiff discharged all expenses of the suit and ultimately compromised it with Damodar who gave up his claim on receipt of Rs. 70/-. This payment is proved by a receipt which the High Court of Eastern States Union said was presumptive evidence of sale. However, plaintiff claims to have stepped into possession of Bhagabat's portion of the homestead on payment of this money to Damodar and on taking possession from him. His case then is that since then he has been in possession on the assertion that by virtue of the agreement with the plaintiff he has become the owner. That is how he claims the entire homestead.
2. Sanatan, defendant 2 acknowledges plaintiff's title with regard to his share. As against this Bhagabat's case was that Sanatan had been taken in adoption by his father-in-law and on his adoption the entire homestead passed to him. It is also urged on his behalf, though he is now dead, that Bhagabat was in adverse possession of the entire homestead to the exclusion of Sanatan.
3. Issue as to whether Sanatan was adopted by his father-in-law has been decided in favour of the plaintiff. The finding that now stands is that Sanatan was never adopted. Therefore it follows, either Sanatan has sold his right to the plaintiff or he has had it in himself or he has lost it by adverse possession by Bhagabat. Learned Counsel appearing for defendant 3 who claims to have derived title from Bhagabat urges that in settlement record Bhagabat was recorded exclusively, that is to the exclusion of Sanatan and he was in possession for more than 12 years. Thus he acquired Sanatan's right. It has been found as a fact by both the Courts below that Bhagabat was never in continuous possession of 12 years of this homestead. He was staying at Sambalpur or other places of business and was coming to his home now and then. This sort of broken possession or intermittent acts of possession may be sufficient to keep a title of the owner of the property alive but can never suffice to acquire title by adverse possession. However much, Bhagabat might have asserted by the entry of his name solely in the settlement record he has not accompanied that assertion with continuous possession for 12 years at any time. So I would unhesitatingly hold that Bhagabat never acquired the entire homestead. He had his half share in the homestead and Sanatan had his half. It has been found by the trial Court in disposing of issue No. 7 which has never been adversely touched by the lower appellate Court that defendant 2 transferred his share of Gharbari in favour of the plaintiff and the plaintiff's possession over the said lands ran adverse to both the defendants. Adverse to both the defendants will now stand modified by reversal of this finding so far as it relates to adverse possession of plaintiff against Bhagabat, but adverse possession as against Sanatan must stand. Result, therefore, is that Sanatan's share on the very admission of Sanatan must be decreed in favour of the plaintiff. So his title with regard to that must be declared and his possession in relation to that must be confirmed. Iwill hold that Bhagabat never acquired Sanatan's share by adverse possession as is now claimed.
4. With regard to the half share of Bhagabat on Bhagabat's death the only claimant is defendant 3, who claims to be a donee. Whether the gift is a completed transaction has not been decided by the learned District Judge in appeal. The learned trial Court decides the matter in issue No. 10 in the following words :
'Issue No. 10 : The essence of gift is that the donee is put into possession the moment the gift is made. The defendant 3 admits that neither he nor Bhagabat was allowed by the plaintiff to live in the house. The defendant 3 further admitted that he stayed in the Gharbari only a month ago. So in fact defendant 3 did not take possession of the suit lands but he simply applied for mutation.'
5. Now that Bhagabat is dead, it is for his brother Sanatan who is the nearest or the plaintiff who is the next in order of succession or defendant 3 to decide as between themselves as to who will get that land. As the matter of gift has not been properly gone into in the Courts below I shall refrain from giving any finding on that point. I would agree with the learned District Judge that plaintiff has not been able to establish title by adverse possession in relation to Bhagabat's half share in the homestead.
6. I shall also hold that the plaintiff's case of purchase of the half share of Bhagabat has failed but as it has been found by the Courts below he had paid Rs. 70/- to Damodar and restored the property, I shall declare that he has a lien on the property known as salvage Hen and shall hold possession till he is paid up by the man. Therefore his possession with regard to this half share also should be confirmed leaving the question of title as between him, Sanatan and defendant 3 open. As the matter has not been investigated into in this case there is no way out except leaving this open for a second litigation though I would have been loath to leave it in that condition.
7. In the result the plaintiff's title and possession are declared in respect of the half share of the homestead as against all the defendants including defendant 3. With regard to his possession in respect of the other half share, it is confirmed as he is entitled to retain it till the lien is redeemed. Validity of the gift to defendant 3 of Bhagabat's share in the homestead is left open. Each party should bear his own coat throughout.