1. The plaintiff and the first defendant in this case are the surviving members of a joint family which became divided in 1904. The suit is for partition and delivery to the plaintiff of a half share in a plot of nanja land which according to the plaintiff, was kept undivided at the time of the partition. The defendants denied that the suit property was family property at all, but this plea has been decided against them by both the lower Courts. The defendants other plea was that they had acquired a prescriptive title to the plaint property by exclusive and hostile enjoyment since the time of the partition. On this point also the District Munsif was against them and gave a decree for the plaintiff. The Subordinate Judge on appeal has decided that the first defendant was in open adverse enjoyment of the suit land for over twelve years and the plaintiff's claim was therefore barred.
2. The learned Vakil for the appellants has argued that there is no evidence on record which could possibly support this finding, and after a careful consideration of the record of the suit, we think this plea must be allowed. The partition deed Ex. A gives a list of the properties to be divided in which the plaint property is not included. There is no specific mention of the plaint property in Ex. A, but there is a clause which says 'if any lands are omitted such lands shall be divided by the holders of A and B schedules in due proportion.' We certainly think that No. inference in favour of the defendants can possibly be drawn from the contents of Ex. A. The other evidence adduced in defendant's favour is the oral evidence of four witnesses D.Ws. 1 to 4. The first and the second of these witnesses are the two defendants in the suit, the second defendant being the purchaser of the plaint land from the first defendant. But quite apart from this, the evidence of all the witnesses amounts simply to this; that the land was cultivated by tenants under the first defendant. There is nothing to indicate that the possession of the first defendant was in any way hostile or openly adverse to that of the plaintiff.
3. The law regarding acquisition of a prescriptive title in respect of joint property by one co-parcener against another has been clearly laid down in two cases quoted on the appellants' behalf. In Vaidyanatha Aiyar v. Aiyaswami Aiyar (1908) .L.R. 32 M. 191 the learned Judges say, 'where a member of a joint family is in possession of joint family properties and a partial partition takes place leaving him however in possession of certain properties not divided between them, his possession will still continue to be the possession of the other members of the family though they may have been divided, till some event happens which renders his possession exclusive or hostile to the others.' Neither in the record of this case nor in the judgment of the Subordinate Judge is there anything that could possibly be construed into such an event. The other case is Jogendra Nath Rai v. Baladeo Das (1907) .L.R. 35 C. 961, in which the question was discussed at much greater length and the learned Judges say, ' The fundamental rule is that the entry and possession of land under the common title of one co-owner will not be presumed to be adverse to others, but will ordinarily be held to be for the benefit of all. The obvious reason for this rule is that the possession of one co-owner is, in itself, rightly, and does not imply hostility as would the possession of a mere stranger.' Further on, 'much stronger evidence, however, is required to show an adverse possession held by a tenant in common than by a stranger; a co-tenant will not be permitted to claim the protection of the statute of limitation, unless it clearly appears that he has repudiated the title of his co-tenant and his holding adversely to him; it must further be established that the fact of adverse holding was brought home to the co-owner, either by information to that effect given by the tenant-in-common asserting the adverse right or there must be outward acts of exclusive ownership of such a nature as to give notice to the co-tenant that an adverse possession and disseisin are intended to be asserted.' These words of course apply with equal force to the case of a co-parcenary. If this test be applied to the present case there is absolutely nothing in the record from which an inference in the first defendant's favour could be drawn.
4. We must set aside the decree of the lower appellate Court and restore the decree of the District Munsif with costs throughout.