A. Misra, J.
1. This appeal has been preferred by the unsuccessful plaintiff against a reversing judgment. His case, in brief, is that he and defendants Nos 1 and 2 are the sons of one Dinabandhu, who died in the year 1929. The suit properties described in Schedules Ka, Kha and Ga were the ancestral properties of the family After Dinabandhu's death, plaintiff left his house due to ill-treatment by the wives of his elder brothers (defendants Nos. 1 and 2) and was staying either at Calcutta or in the village of his maternal uncle As the family had continued possessing the suit properties jointly, he sought for partition shortly before institution of the suit Then he came to learn that even though there were no arrears of rent defendants Nos. 1 and 2 in collusion with the landlord Sm. Pramoda Devi with the object of depriving him of his legitimate share got rent suit No 6410 of 1934-35 filed against the brothers impleading the plaintiff as a minor under theguardianship of defendant No. 1, though by that date, he was a major. The collusive rent suit was decreed ex parte and in rent execution case No. 961 of 1936-37, the suit properties were put to auction and purchased benami in the name of Ganeswar, the original defendant No. 3. Subsequently, at the instance of defendants Nos. 1 and 2, Ganeswar executed a nominal sale deed in respect of the Kha schedule property in favour of defendant No. 4 and another nominal sale deed in favour of defendant No. 5 in respect of Ga schedule property. In spite of these collusive transactions, defendants Nos. 3, 4 and 5 never got possession of any portion of the suit properties and defendants Nos. 1 and 2 continued to possess them as before. Alleging that the rent decree and the execution sale are not binding on him, plaintiff seeks declaration of title to and confirmation of possession in respect of the suit properties. In the alternative, plaintiff along with defendants Nos. 1 and 2 claims to have acquired title by adverse possession having continued in possession of the suit properties in spite of the Court auction sale for more than twelve years, without interruption by assertion of hostile title. Defendants Nos. 4 and 5 alone contested the suit. Defendant No. 3, who filed a written statement, died during the pendency of the litigation and was substituted by his legal representatives who have effected a compromise in respect of the Ka schedule property. According to contesting defendants, plaintiff was a minor under the guardianship of his elder brother defendant No. 1. The landlord filed a suit as there were arrears of rent against the three brothers, obtained a decree and in execution the suit properties were put to auction and purchased by Ganeswar. After purchase Ganeswar obtained the sale certificate and delivery of possession through the Court. He remained in possession for some time by paying rent and water-rate, but subsequently sold the Kha and Ga schedule properties to defendants Nos. 4 and 5, respectively, and since their purchase they have been in possession. In short, they contend that there was no fraud nor collusion in obtaining the rent decree or in getting the properties sold in execution of the said decree and that the decree as well as the sale in the execution proceedings are valid and binding on plaintiff as well as his brothers, defendants Nos. 1 and 2. In the alternative, they say that the suit is barred by limitation and that they have acquired title by adverse possession in respect of the Kha and Ga schedule properties as they have been in possession of the same in their own right since their purchase and prior to that their vendor Ganeswar was in such possession.
2. The findings of the trial Court are: firstly, that plaintiff was a major at the date of the rent suit and execution sale; secondly that the decree in the rent suit and execution proceeding are collusive and fraudulent; and thirdly, that defendant No. 1 was all along in possession of the suit properties. On these findings, it decreed the plaintiff's suit. The lower Appellate Court, while agreeing with the findings of the trial Court that plaintiff was a major at the date of the rent suit, though he was sued by being wrongly described as a minor, found that the decree in the rent suit as well as the execution proceeding are not vitiated by fraud or collusion; that defendant No. 3 since the purchase at the court auction sale and delivery of possession was in possession of the suit properties and defendants Nos. 4 and 5 came into possession and remained in possession since their respective purchases from defendant No. 3 and that the decree in the rent suit and the execution proceeding impleading plaintiff as a minor are not void. On these findings it allowed the appeal by defendants Nos. 4 and 5, so far as the Kha and Ga schedule properties are concerned
3. The undisputed facts are that the suit properties described in Schedules Ka, Kha and Ga constituted the joint family properties of plaintiff and defendants Nos. 1 and 2; that the landlord filed a suit for arrears of rent, obtained a decree in execution of which the suit properties were sold and purchased by defendant No. 3 in court auction. The concurrent finding of the courts below that plaintiff was a major at the date of institution of the rent suit by the landlord Sm. Pramoda Devi is not open to challenge and has not been assailed before me. Similarly the two other findings of the lower appellate court that the decree in the rent suit and the execution proceeding in which the suit properties were sold in Court auction were not the result of fraud or collusion is also a finding of fact and as such not open to challenge in second appeal. So also the finding that defendant No. 3 came into possession of the properties since taking delivery of possession through court and defendants Nos. 4 and 5 came into possession of the Kha and Ga schedule properties since their purchase under the sale deeds (Exts. F and G) is one of fart and is not open to challenge.
4. The only two points urged by Mr. N. Mukherji, learned counsel appearing for appellant are as follows (1) that the decree in rent suit No. 6410 of 1934-35 brought by the landlord describing plaintiff as a minor, while he was a major at that date is a nullity, and as such plaintiff's interest in the joint family properties will not be affected by the decree or the court auction sale in execution of the decree; and (2) that if it is held that plaintiff's interest is not affected as stated above, he will be deemed to have remained in joint possession along with the auction-purchaser so far as his interest is concerned as a cosharer and in the absence of pleading and proof of ouster, his right as a cosharer will not be extinguished by adverse possession irrespective of the fact that the auction purchaser continued in possession of the property for any length of time.
5. The first contention of appellant that the decree in the rent suit No. 6410 of 1934-35 obtained against defendants Nos. 1 and 2 and plaintiff is a nullity so far as plaintiff is concerned as by that date he was a major but was wrongly impleaded as a minor. So also on the same ground it is contended that the rent execution case No. 961 of 1936-37 is a nullity so far as he is concerned, because by being wrongly impleaded as a minor, though actually he was a major by that date, he cannot be deemed to be a party in the suit or the execution proceeding. That being so, it is urged that his interest in the Kha and Ga schedule properties is not affected by the execution sale. The lower appellate court relying on a Division Bench decision reported in AIR 1951 Patna 323 held that the decree and the execution sale against plaintiff, a major by that date, impleaded as a minor, cannot be regarded as a nullity. Mr. Mukherji appearing for appellant contends that the said decision in terms does not apply to the facts of the present case and the lower appellate court has erred in relying on the same. On the other hand, he relies on a decision reported in AIR 1919 Pat 10, Sakal Sing v. Chanderdip Lal in support of his contention that a major defendant who is described as a minor can not be treated as party to the suit and is not bound by the decree passed in the suit. So far as the Division Bench decision reported in AIR 1951 Pat 323, Bibi Asghari v. Md. Kasim is concerned, there are some distinguishing features as contended by Mr. Mukherji. These four plaintiffs instituted a suit for setting aside a decree and sale in execution of that decree besides praying for confirmation or recovery of possession of lands sold in execution of the decree on the ground that plaintiffs Nos. 3 and 4 whose interests were subsequently acquired by plaintiffs Nos. 1 and 2 were minors at the time when the rent suit was instituted, though they were impleaded as majors. The rent suit was decreed on 31-1-28 and the sale in execution of the decree was held on 10-7-28. The suit to set aside the decree and sale was filed on 9-7-40 describing plaintiffs Nos. 3 and 4 as minors, though by that date they had attained majority. Plaintiffs Nos. 1 and 2 were substituted in their place on 30-6-43. The question that arose for decision was whether the interest of plaintiffs Nos. 3 & 4 can be deemed to have been represented in the suit on the date it was filed, i.e. before plaintiffs Nos. 1 and 2 were substituted, because they had instituted the suit as minors, as otherwise the suit would be barred by limitation. In that context, it was held that a suit instituted by a plaintiff describing himself as a minor, though he was a major on the date of institution of the suit, cannot be regarded as a suit to which he was not a party. Therefore, in that case, the effect of a major being impleaded as a minor defendant did not directly arise for consideration. All the same, relying on some decisions of different High Courts it washeld that the same principle would apply and such a decree will not be a nullity. In the decision reported in AIR 1919 Pat 10, by a single Judge of the Patna High Court, it was held that a decree obtained against a person treating him as a minor while in reality he was a major will not bind him as he cannot be treated as a party. This decision was considered in a subsequent Division Bench decision of the Patna High Court reported in (1940) 21 Pat LT 269 and relying on a Division Bench decision of the Madras High Court in ILR 39 Mad 1031, it was held that a decree obtained against a person treating him as a minor while in reality he was a major on the date of decree is not a nullity. No decision of this High Court directly on the point has been cited by either side. Agreeing with the view taken in the decisions in (1940) 21 Pat LT 269 and ILR 39 Mad 1031 = (AIR 1917 Mad 318), I do not accept the contention of Mr. Mukherji that the decree or sale so far as plaintiffs interest is concerned, will be treated as a nullity simply on the ground that he was described as a minor, though in fact he was a major by the date of the suit.
6. In view of my above finding, the necessity of considering the second contention does not arise. However, as learned counsel has raised the question I proceed to deal with it. His contention is that if the decree and the execution sale are found to be a nullity and as such not binding on the interest of plaintiff in the joint family properties, plaintiff will be entitled to joint possession to the extent of his interest in the said Kha and Ga schedule properties along with defendants Nos. 4 and 5 as he will be deemed to be a co-sharer, and in the absence of pleading and proof of ouster, his interest cannot be extinguished irrespective of the length of possession by defendants Nos. 4 and 5 or defendant No. 3. In support of this contention, reliance has been placed on a decision of this Court reported in 22 Cut LT 51 = AIR 1956 Orissa 111, P.B. Subudhi v. Kundaria Bibi, where it has been held that the principle of ouster as amongst original co-sharers applies with equal force as against the alienees from the co-sharers. As a broad proposition, there can be no dispute that possession of one co-sharer in the eye of law will enure to the benefit of all the co-sharers and mere occupation or enjoyment or management of joint property by one co-sharer does not constitute adverse possession as against the other co-sharer unless there is a disclaimer of the latter's title by open assertion of a hostile title, or unless there is actual ouster or some act equivalent to ouster. But where the defendant has taken the property not as co-heir, the question whether exclusive possession amounts to ouster or not depends on the circumstances of each case. In the present case, the decree was passed against the three brothers including plaintiff and the right, title and interest of the judgment-debtors were sold and purchased by defendant No. 3, the auction-purchaser on 17-11-36 and subsequently he took delivery of possession. It has been found that the auction-purchaser and thereafter defendants Nos. 4 and 5 remained in exclusive possession of this property paying rent, water rate, etc. Plaintiff was not unaware of the auction purchase by defendant No. 3 is patent from the statements made by him in evidence to the effect that he used to pay rent, etc., to his brother who paid the same through Ganeswar, the auction purchaser. This shows that plaintiff was aware that Ganeswar was possessing the property by virtue of his purchase in auction and not as a co-sharer. In these circumstances, it cannot be said that defendant No. 3 and subsequent to him defendants Nos. 4 and 5's possession was not to the exclusion of whatever interest plaintiff might be claiming. Therefore, even if the decree and auction sale are held to be nullity as contended, the right of plaintiff, if any, in the property has been extinguished by the exclusive and hostile assertion of right by the auction purchaser and possession for more than twelve years in assertion of such right to the knowledge of plaintiff. Thus, considered from either point of view the contentions raised by appellant have no merit and are rejected.
7. In the result, the appeal fails and isdismissed with costs.