S. Barman, J.
1. The unsuccessful plaintiff in both the courts below is the appellant--in this second appeal,--from a confirming decision of the learned District Judge, Ganjam Boudh, whereby he affirmed a decision of the learned Munsif of Berhampur, and dismissed the plaintiffs suit for partition of 2/5ths share of the suit properties (being the properties of defendants 2 to 9, 14 and 15), purchased by the plaintiff from an auctionpurchaser at court sale in execution of a mortgage decree, on the ground that the suit is barred by limitation, in the circumstances hereinafter stated.
2. The facts,--few and simple,--are these; On April 23, 1940 defendant No. 1 had purchased the suit properties (being dwelling house (tiled) with lands appurtenant thereto) at Court auction sale in execution of a certain mortgage decree; on April 26, 1940 the sale was confirmed; on September 17, 1941 the sale certificate was issued; on April 20, 1943 delivery of possession is said to have been given to the purchaser in Dakhaldehani proceedings in the execution case arising out of the said mortgage decree. On April 16, 1955 the plaintiff purchased the suit property from the defendant 1, the auction purchaser at court sale, who was the decree-holder in the mortgage decree; on April 18, 1955 the sale deed under which the plaintiff purchased from the defendant No. 1, was registered; on the following day on April 19, 1955 the plaintiff filed the suit for partition of the said undivided 2/5ths share in the suit properties, which the plaintiff had purchased from defdt. No. 1, the auction purchaser at court sale. The decree taken in the suit, was that the suit was barred by limitation. Both the courts below accepted the defence point of limitation and dismissed the suit. Hence this second appeal.
3. On the question of limitation, which isthe only point urged in this second appeal, it wascontended on behalf of the plaintiff-appellant, thatthe plaintiff's vendor the auction purchaser atcourt sale had purchased the 2/5th share in thesuit properties, which belonged to the judgment-debtor and thus the auction purchaser (plaintiffsvendor) became a co-sharer in respect of the suitproperty; if he is found to be a co-sharer thenthere is no question of adverse possession underArticle 144 of the Limitation Act which, according to the defendants, is the Article applicable tothis case. For convenience of ready referenceArticle 144 is set out as follows:
'144. For possession of immoveable properly or any interest therein not hereby otherwise specifically provided for.Twelve yearsWhen the possession of the defendant become adverse to the plaintiff.'
The plaintiffs point is that there can be no adverse possession unless there is ouster, that is, assertion of hostile title followed by hostile possession; in the present case, according to the plaintiff, there is no question of either hostile title or hostile possession. The plaintiff relied on the position that the defendant No. 1 the auction purchaser at court sale from whom the plaintiff purchased could apply for delivery of possession of what he purchased under Order 21, Rules 95 and 96, Civil procedure Code.
4. For deciding this point of limitation, it has to be determined whether the auction purchaser, by virtue of his purchase at court sale, had assumed the position of a co-sharer in respect of the suit propertied. If Article 144 is the appropriate Article applicable, then, according to column 3 of the Article, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff; the possession of the non-alienating members of the family cannot be deemed to be possession on behalf of the alienee, also; co-parcenary, as recognised by Hindu Law, can only subsist between members of a joint Hindu family, and the contention, that the possession of one coparcener is the possession of all, for purposes of limitation, can, have no application as between a purchaser from one of the co-parceners and the other members of the family; in the absence of a clear acknowledgment of the right of the alienee or participation in the enjoyment of the family property by the alienee, the possession of the non-alienating co-parceners would be adverse to the alienee from the date, on which he became entitled to sue for general partition and possession of his alienor's share; the fact that the alienee is the purchaser of an undivided interest is not inconsistent with the conception of adverse possession of that interest; what is in question here is not adverse possession of the block of property in which the various undivided interest subsists but adverse possession of one undivided interest : Article 144 certainly extends the conception of adverse possession to include an interest in immovable property as well as the property itself nor can it be disputed that there can be adverse possession of an undivided share, under the appropriate circumstances, as in the present case (Sudarsan Das v. Ram Kirpal Das, AIR 1950 PC 44 at pp. 47, 48).
5. The plaintiff's point,--that, in the present case, delivery of possession was given to the auction purchaser in Dakhaldehani proceedings in the execution case under Order 21, Rule 95 or 96, Civil Procedure Code, on April 20, 1943 from which date, according to the plaintiff the time of alienation should run, so that his suit filed on April 19, 1955 was within time,--would also be of no avail here, because in the present case, there could be no delivery, either symbolical or actual, in pursuance of the sale of an undivided interest in joint family property; it is not competent to a court on a mere application for execution by a purchaser of such an undivided share to pass an order directing delivery of possession; therefore, the plaintiff cannot get the benefit of a fresh cause of action by any symbolical delivery which could not in law have been made to him (V.C. Thani Chettier v. Dakshinamurthy Mudaliar, (S) AIR 1955 Mad 288 at p. 294) (para 14).
6. The only remedy for an auction purchaser is to file a suit for partition and get his share allotted,--a right given to him in equity; he cannot wait indefinitely; the time within which he should file such, a suit is 12 years from the date of sale; principles, applicable to an ordinary suit for partition among the co-sharers of a joint family, are not applicable in the case of auction purchaser's suit for partition, because he by virtue of his purchase of an undivided share of the joint family property does not become a co-sharer; from the date of sale, the possession of co-sharers becomes adverse to the stranger purchaser. All these follow from the basic principles that when a co-parcener alienates his share in certain specific family property, the alienee does not acquire any interest in that property but only an equity to enforce his rights in a suit for partition and to have the property alienated, set apart from the alienor's share if possible; such an alienee has no right to possession and no status of a tenant in common; such transferee only acquires an equity, and it is only a right in personam and not a right in rem and the transferor remains a member of the co-parcenary until partition is effected. (Jagadish Paaday v. Rameshwar Chaubey, AIR 1960 Pal 54).
7. Mr. M. S. Rao, learned counsel for the plaintiff appellant, relied on a passage quoted in a decision of this Court from a judgment of the Allahabad High Court in Subah Lal v. Fateh Mohammad, AIR 1932 All 393, where the Allahabad High Court observed that there can be no difference in principle whether a person is the original co-owner or has become a co-owner by virtue of a transfer; from the moment of his acquiring a share in the common property he becomes a co-owner and has the same legal title as his predecessor to enjoy the whole : his possession of the whole is equally referable to his legal title and his possession need not necessarily be adverse; the other co-owners, if they have actually no knowledge of the extent of the share transferred, are entitled to presume that their co-owner has transferred his own interest only and that the transferee by virtue of his right to that share is enjoying possession of the whole property.
This Court noted the two schools of thought, namely, a class of authorities including a decision in Abdul Chaful v. Ashamat Bibi, 54 Ind Cas 385 : (AIR 1920 Mad 160), in which it was held that the entry of an alienee from a co-transferee into the property alienated, was adverse to the co-transferees from the very moment of that entry; on the other hand, there is another class of authorities including the decision in the said Allahabad case which have taken a different view to the above fact. This Court however, decided that it would serve no purpose to review as to which of the two different schools of thought lays down the correct legal position and left the question open, Radharani Das v. Chandeswar Kesh, 1960-2 Orissa J D 181 at pp. 193-5 (para 7).
7-a. In my opinion, the view that the possession of a purchaser of an undivided share of a joint family property is adverse from the date of sale, is supported by the Privy Council decision, AIR 1950 P C 44 at pp. 47, 48, cited above where Lord Radcliffe laid down the basic principles underlying the question of adverse possession under Article 144 of the Indian Limitation Act as stated above.
8. That apart, proviso to Section 44, Transfer . of Property Act further supports the above view. Although Section 44 does not in terms apply to involuntary sales, e. g., sales in execution of decrees, by virtue of Section 2(d), the principle of Section 44 can be applied to involuntary sales as a rule of equity, justice and good conscience, Jagatbandhu Biswas v. Iswar Chandra, AIR 1948 Cal 61. However, independently of Section 44,--the applicability of which was challenged on behalf of the plaintiff appellant--the suit is clearly barred by limitation, as it was filed beyond 12 years, after the possession of the defendants became adverse to the plaintiff's vendor (auction purchaser) at Court sale, for reasons aforesaid.
9. In this view of the position in law, thedecision of the courts below,--dismissing theplaintiff's suit as barred by limitation,--is upheld. This appeal is, accordingly dismissed withcosts.