P.R. Gokulakrishnan, J.
1. The plaintiffs are the appellants. The suit was for redemption of an usufructuary mortgage.
2. The admitted case of the parties was : The suit property belonged to Puthuveedu tarwad. Purthuveedu tarwad had three sakas, viz., Chenkattu saka represented by Padmanabhan Peruman, Eswaran Eswaran and Raman Raman, Elumbarathu saka, represented by Padmanabhan Kali, Neelakantan Raman and Neelakantan Nagan, and Udantha-vilagathu saka represented by Kali Kumaran, Ayyappan Kumaran and Velayudhan Ayyappan. As far as Chenkattu saka was concerned, the same had become extinct on the death of Raman Raman in 1095 (M.E.) b. The plaintiffs belong to Udanthavilagathu saka. Their karnavan, Raman Eswaran, executed an othi and kuzhikanam for 7,000 fanams to one Manthiramoorthy and three others in respect of the suit property under Exhibit A-1 on 30th November 1084 (M.E.). Subsequent to, Exhibit A-1, in the family partition, Bhagavathi Pillai and her daughter Bharathi pillai Were allotted half of the suit property along with other properties, and Bhagavathi Pillai's another daughter viz., the first plaintiff and her daughter the second plaintiff, were allotted the remaining half share in the suit property and other properties. Under Exhibit A-2, partition deed. Bhagavathi Pillai bequeathed her one-fourth share in the suit property obtained under Exhibit A-2 to her grand-daughter, the second plaintiff, under Exhibit A-3, Bharathi Pilla's one fourth share obtained under Exhibit A-2 devolved on her daughter, the third plaintiff. Thereby the plaintiffs became entitled to the equity of redemption of the suit property. The plaintiffs and Bhagavathi Pillai got release of a one-sixth of Exhibit A-1 othi right from one Esakki Madan Arumugham under Exhibit A-5. They have filed the suit for redemption of the remaining five-sixths share in the suit property.
3. The only contesting defendant, viz., the thirteenth defendant, contended that the plaintiffs' karnavan Raman Eswaran had no right to execute Exhibit A-1 othi and kuzhikanam over the entire suit property and that the suit property belonged to the common karnevan Velayudhan Ayyappan and Kandan Thanuvan. Kandan Thanuvan was the common karnavan of the plaintiffs' karnavan Raman Eswaran and the defendant's karnavan Neelakantan Thanuvan. The plaintiffs are, therefore, entitled to redemption of half of the suit property less the one-sixth obtained release of under Exhibit A-5, and the defendants and the members of their branch are entitled to the other half of the suit property. On behalf of his tarwad, the thirteenth defendant got release of his tarwad's half share under Exhibit B-14.
4. The plaintiffs denied that Kandan Thanuvan was the common karnavan of their branch and stated that he belonged to a different branch.
5. The trial Court passed a preliminary decree for redemption of the suit property on the finding that the plaintiffs are entitled to the entire suit property and the defendants have no right thereto. Aggrieved by the judgment and decree of the trial Court, the thirteenth defendant preferred an appeal to the Sub-Court, Padmanabhapuram. The lower appellate Court, after elaborately discussing the evidence on record, came to the conclusion that Kandan Thanuvan and others were members of the C branch, that the third branch subsequently became divided into two branches, viz., C1 and C2, one represented by Raman Eswaran and the other by Neelakantan Thanuvan, and that Kandan Thanuvan was their common karnavan. This finding was arrived at by the lower appellate Court, after proper appreciation of both oral and documentary evidence, particularly Exhibits B-8, B-10, B-12 and B-13, and as such it being a finding of fact, the same cannot be interfered with at the second appellate stage.
6. Thiru Padmanabhan, the learned Counsel appearing for the appellants, submitted that even though the finding that Kandan Thanuvan was the common karnavan of the C-1, and C-2 branches cannot be successfully canvassed, the mortgage of Raman Eswaran under Exhibit A-1 of the year 1909 must be deemed to be with the knowledge of the thirteenth defendant's branch and as such it is a case of ouster of, and adverse possession against, the thirteenth defendant's branch. According to Thiru Padmanabhan, therefore, the mortgage under Exhibit B-5 of the year 1891, corresponding to 1097 (M.E.) which was the mortgage executed by Velayudham Ayyappan and Raman Eswaran in favour of Meetheen Pillai was redeemed by Raman Eswaran, and after taking possession of the same Raman Eswaran executed Exhibit A-1 representing his own branch in the year 1909. This possession of Raman Eswaran after the redemption of Exhibit B-5 and the subsequent mortgage under Exhibit A-1 clearly ousts the right of the thirteenth defendant's branch, according to the learned Counsel and it must be deemed that the thirteenth defendant's branch had knowledge of such an ouster from the year 1909 onwards. If that be so, Thiru Padmanabhan, the learned Counsel for the appellants submitted that, the thirteenth defendant's branch had been completely ousted from claiming any right in the suit property.
7. Thiru Ganapathisubramania Iyer, the learned Counsel appearing for the thirteenth defendant, the respondent in the second appeal, submitted that Raman Eswaran never got possession of the suit property, but, on the other hand, he executed second mortgage to the mortgagee in possession, and as such it cannot be said that Raman Eswaran got possession of the suit property and then only be executed Exhibit A-1 to the knowledge of the thirteenth defendant's branch. According to the learned Counsel, Exhibit B-5, had been executed by Velayudhan Ayyappan, who represented both the plaintiffs' branch and also the defendant's branch, and thus it must be deemed that the thirteenth defendant's branch has not lost any right either on the ground of ouster or of adverse possession.
8. Thiru Padmanabhan citeda number decisions in support of the case of ouster and adverse possession which I will deal with presently. Palania Pillai v. Amjath Ibrahim : AIR1942Mad622 , is a decision of a Full Bench of this Court on a reference from King J. The reference was:
Where some co-owners usufructuarily mortgage specific items of property held by the members of a Mahomedan family and the mortgagee enters into possession of the mortgaged items under his morgage deed, is a suit to recover the share therein by other members of the same family barred by Article 144, Limitation Act, at the end of 12 years of such possession or does adverse possession begin as against the other member;, only from the date of ouster to their knowledge.
9. The facts of that case were : The plaintiffs were co-sharers along with defendants 1 and 3. They brought a suit for partition. The eighth defendant in that suit was an usufructuary mortgagee, from defendants 1 and 3. The said mortgage had been created by defendants 1 and 3 in the year 1920. The plaintiffs, who were co-owners along with defendants 1 and 3, claimed that the mortgage was not valid or binding upon them. The eighth defendant, who was the mortgagee, contended that the mortgage was of the year 1920, that the suit was filed only in the year 1937 by the plaintiffs and as such he got the right to be a mortgagee by adverse possession under Article 144, since he was in possession for over a period of seventeen years as a mortgagee. The Full Bench observed:
It was sufficient that possession was overt and without any attempt at concealment so that the person against whom time was running ought if he exercised due vigilance to be aware of what was going on' and held:Where some co-owners usufructuarily mortgage specific items of property held by the members of a Mahomedan family and the mortgagee enters into possession of the mortgaged items under his mortgage deed, a suit to recover the share therein by other members of the same family is barred by Article 144 at the end of twelve years of such possession, as the possession of the mortgagee becomes adverse against the other members from the moment of the entry into possession by the mortgagee and not from the date of ouster to their knowledge.
After recording the said finding, the Full Bench made it clear that the interest which the eighth defendant who was the mortgagee in such a case acquired by prescription was the interest of a usufructuary mortgagee and that he had not acquired a full title to the property. Thus, it is clear from the above-said Full Bench decision that the action of one of the co-owners is binding on, and also must be deemed to be on behalf of, the other co-owners, and that if a stranger is put into possession, who proceeds to cultivate the land for his own benefit, the other co-sharers must, unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests they must take the consequences. The stranger will thus be perfecting his right by adverse possession against all the co-sharers, even though the stranger has been put in possession of only by a few of them. As far as the present case is concerned, Thiru Ganapathisubramania Iyer has stated that it is the co-sharers who seek to perfect title by adverse possession, and not the stranger, and they never got into possession of the property in their individual capacity, but only created a second mortgage in favour of the mortgagee, who was already in possession under Exhibit B-5. of the year 1891.
10. Konnan Sanku v. Parvathi Amma (1962) K.L.T. 881, while following the above Full Bench decision, went further and said that one co-owner who ousted the other co-owners and mortgaged the property in his individual capacity to the knowledge of the other co-owners, can perfect title even as against the other co-owners. Thus, the question that has to be decided, as envisaged in this decision is, whether one co-owner has, to the knowledge of the others ousted the others from claiming any right to the property concerned for over a period of twelve years.
11. Even in Neelakantan v. Sankaran (1974) K.L.T. 545 Bench of the Kerala High Court while negativing the case of a co-owner who claimed adverse possession against the other co-owner held:
When a co-owner asserts in a mortgage document that he is a full or sole owner and puts the mortgagee in possession, the latter's possession is but a continuation of the possession of the former, so that, if 12 years pass thereafter, the other co-owner's right gets barred by adverse possession. The mortgagee has, strictly speaking, two capacities, namely, the capacity of a mortgagee and the representative capacity of his mortgagor. Thus, when he continues in possession, he prescribes, in his own right, to a mortgage right against the other co-owner, who has not joined the mortgage in his favour, in the half of that co-owner; and he also prescribes, as a representative of his mortgagor, against the other co-owner, to the absolute right in the latter's half, since his possession is a continuation of his mortgagor's possession--the mortgagor who asserted full or sole title against the other co-owner and put the mortgagee in possession. But this absolute right in the half of the co-owner out of possession, the mortgagee prescribes, not for himself but only for his mortgagor. In a case like the one before us, where the continuity of the representative possession is broken by an appropriate proceeding between the mortgagor-co-owner and the other co-owner out of possession the mortgagee cannot claim absolute title to the half belonging to the latter. Since the mortgagee continued openly in possession (ne vi nec clam nec precario), as a mortgagee of the entire property, he prescribes for a mortgage right in the other half of the property too belonging to the other co-owner, though the latter did not join the mortgage. This is the result of his adverse possession as a mortgagee, not the result of his possession as the representative of his mortgagor ; such representative possession has already been broken as a result of the litigation between the two co-owners.
12. In Adhinarayanaswamy v. Papamma : AIR1963AP121 , a Bench of the Andhra Pradesh Court, in dealing with the requirements of 'adverse possession' as against a co-owner, stated:
The classical requirement of adverse possession is that it should be nec vi nec clam nec precario. The possession required must be adequate in continuity, in publicity and in extent, to show that it is possession adverse to the competitor. In order to establish adverse possession of one heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing coheir by the co-heir in possession who claims his possession to be adverse should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other coheir's title. But there must be evidence of open assertion of hostile title coupled with exclusive possession, and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.
13. Thiru Ganapathisubramania Iyer sought to distinguish these decisions by stating that no knowledge could be attributed to the thirteenth defendant's branch about the assertion of title by the mortgagor under Exhibit A-1 inasmuch as the mortgagee who continued under Exhibit B-5 was given a second mortgage under Exhibit A-1 to fortify his contention, Thiru Ganapathisubrarnania Iyer cited the decision in Karthiyayani v. U. Kallyani : AIR1972Ker229 , wherein the Kerala High Court, negativing the contention of adverse possession pleaded in that case, stated:
Different considerations must prevail in determining the question of adverse possession in regard to the property covered by Exhibit D-11 mortgage. The property had gone out of possession of Gharu himself in 1102. Therefore what plaintiff inherited as the daughter of Charu along with defendants 1 to 7 in 1117 was only the right to the equity of redemption over this property and normally the period available for exercising the right to redeem would be the period for redeeming a mortgage. In regard to such equity of redemption any dealing by the other co-owners could not be deemed to be ouster as pertinently observed in the decision of the Full Bench in Kunjamma Cicily v. Kasim Beevi Sulalikha Beevi : AIR1969Ker293 , relied on by Counsel. In that case in spite of the fact that under Exhibit D-3 one of the co-owners redeemed the mortgage in regard to portion of the property and executed a fresh mortgage on the same day, the Court held that this will not amount to ouster and it will not be deemed that the co-owners who were not parties to those documents had notice of such ouster. That is because the co-owners had no right to immediate possession. If that be the rule, I see no justification to find that in regard to the 42 cents covered by Exhibit D-11 the suit is barred by limitation or adverse possession.
14. Thiru Ganapathisubramama Iyer also cited the decision in Veeranna Thevar v. Karuppayi : AIR1959Mad37 , wherein this Court held that a person setting up title by adverse possession in the case of a property in the possession of a mortgagee must show knowledge of such possession by the mortgagor and unless the requisite length of possession is established as also the fact that this possession is open, adverse and to the knowledge of the mortgagor, no-trespasser can claim title by adverse possession against the mortgagor.
15. Thiru Ganapathisubramania Iyer also cited the decision in P. Lakshmi Reddy-v. L. Lakshmi Reddi : 1995(5)SCALE509 , wherein it is stated:
The ordinary classical requirement of adverse possession is that it should be nee vi nec clam nec precario. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered in law as possession of all the co-heirs; where one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.
16. The next decision cited by Thiru Ganapathisubramania Iyer as regards adverse possession as against co-sharers is in the one in Shambhu Prasad Singh v. Most Phool Kumari : AIR1971SC1337 , wherein, the Supreme Court has stated:
On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well-settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessor. Accordingly, if a person having title proves that he too had been exercising during the currency of his title various acts of possession, then the quality of those acts, even though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession of title which he holds. As between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers. Therefore to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. As between them, therefore, there must be evidence of open assertion of hostile title coupled with exclusive possession of and enjoyment by one of them to the knowledge of the other.
To the very same effect is the decision rendered by a Bench of this Court in Minor Ibramasa Rowther v. Shaik Meerasa Rowther : (1972)1MLJ466
17. In Abdul Kadir v. Umma I.L.R.(197O) 2 Mad. 636, a Bench of this Court elaborately discussed the law relating to ouster in respect of a stranger and also in respect of a co-,owner. It is also stated therein that the question whether evidence is sufficient to infer ouster will depend upon the facts of each case and that no hard and fast rule can be laid down. Nevertheless the following factors in such cases are held to be relevant:
(i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation (twelve years in India);
(ii) dealings by the party in possession treating the properties as exclusively belonging to him;
(iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession.
Thus, it is clear from the above decision. that the decision on the question of ouster depends upon the facts of each case.
18. Thiru Padmanabhan, the learned Counsel appearing for the appellants read the written statement and also the plaint to show that there are allegations-in the plaint, of exclusive possession on the part of the plaintiffs and also averments in the written statement as regards. knowledge of such possession by the thirteenth defendant's branch. Thiru. Padmanabhan also submitted that Velayudhan Ayyappan did not execute the mortgage Exhibit B-5 on behalf of the C branch but it was for the Puthuveedu; tarwad. Thiru Padmanabhan also reiterated that Exhibit B-5 was redeemed by Exhibit A-1 and that Exhibit A-1 was created as a new mortgage after taking possession of the property by the plaintiffs.
19. Thiru Ganapathisubramania Iyer, on the strength of the decisions cited by him and noticed supra, submitted that as per Order 34, Rule 1, Civil Procedure Code, the thirteenth defendant is entitled to half of the right in the equity of redemption, that when the mortgagee was already in possession, there could be nothing for the co-sharer mortgagor under Exhibit A-1 to prescribe title to the suit property, that as far as the facts of the present case are concerned, the actual possession was with the mortgagee in respect of the mortgage granted under Exhibit B-1, that Exhibit A-1 must be deemed as a second mortgage in respect of the suit property in favour of the mortgagee under Exhibit B-5, and that the plaintiffs did not plead ouster as such in the pleadings. Thiru Ganapathisubramania Iyer also reiterated that there was absolutely no issue regarding adverse possession raised by the plaintiffs and that they have merely denied in their pleadings the claim of the thirteenth defendant's branch to have-any right in the suit property.
20. It is thus clear from the facts of this case that the thirteenth defendant's branch has a right in the suit property and that the plaintiffs have not proved adverse possession as such against the thirteenth defendant's branch who are the co-sharers along with the plaintiff's branch in respect of the suit property. There is absolutely no evidence as to the open assertion of the plaintiffs' right in the suit property to the knowledge of the thirteenth defendant's branch. The execution of Exhibit A-1, cannot in my opinion, impute any knowledge to the thirteenth defendant's branch as regards exclusive possession and enjoyment of the suit property by the plaintiffs' branch. Further, in view of Exhibit B-5, the subsequent mortgage under Exhibit A-1 to the very same mortgagee under Exhibit A-5 cannot, in my opinion, impute knowledge of any open assertion of the plaintiffs' right to the thirteenth defendant's branch. Taking all these aspects into consideration, I find that the plaintiffs have miserably failed both in excluding the right of the thirteenth defendant's branch to enjoy the suit property as co-sharers and also proving ouster they sought to establish alternatively at the second appellate stage. I am in complete agreement with the findings arrived at by the lower appellate Court and as such the second appeal is dismissed with costs. No leave.