1. In this case the plaintiff appeals from a decision of the District Judge in a partition suit refusing him a share of a certain site on which the family house formerly stood. The family house was washed away by the great cyclone in the sixties and another house was subsequently constructed by the defendants. The plaintiff does not claim any share in the superstructure, but claims that in the partition he is entitled to a share of the site.
2. The District Judge has relied on a variety of circumstances showing that the plaintiffs had abandoned their right. The proper principle to start with, in our opinion, is that assuming, as found by the District Judge, that shortly after the cyclone the parties became divided in status, yet that until there was a partition by metes and bounds they would be in possession as tenants-in-common of what had been the point family property, and with regard to he tenants-in-common the presumption is hat the possession of one is the possession of all, and, therefore, the possession of the defendants would enure for the benefit of the plaintiff at any rate, unless it were shown either that the plaintiff had renounced his share of the property in possession of the tenants-in-common or possibly that there had been something amounting to ouster.
3. Now, looking at the case from this point of view, there is oral evidence of three witnesses, who say they remember long ago that the plaintiff's grandfather said that he renounced his share of the family house. This is not the evidence upon which the District Judge has acted in arriving at the finding he has arrived at and we do not think it is evidence on which it would be safe to act, and, therefore, it comes to this that as there is no evidence of anything that could be considered as ouster, the possession of the defendants must all along be considered to have been the possession of their tenants-in-common.
4. Then it is said that the suit is barred by limitation under Articles 127 of the Limitation Act. But if the possession of the defendants is considered to be the possession of the plaintiff, it cannot be said that there has been exclusion of the plaintiff within the meaning of the Article. A case to the contrary has been cited Ramachandra Narayan v. Narayan Mahadev 11 B.L 216 that the exclusion of the plaintiff within the meaning of the Article should be presumed by the defendants having been in possession. But as observed by Benson and Krishnasawmi Iyer, JJ., in Sammantha Gramany v. Devasikamany Gramany 5 Ind. Cas. 924 : 20 M.L.J. 364 : 7 M.L.T. 174 : (1910) M.W.N. 511 the observations of West, J., in that case have not been accepted as a sound interpretation of Article 127 in this Court, citing Sellam v. Chinnammal 24 M.P 441 and Dhoorjetti Subbayya v. Dhoorjetti Venkayya 30 M.P 201 : 2 M.L.T. 184. We are, therefore, not prepared to follow those observations and we hold that oil the evidence here, there is nothing to show that the plaintiff was in law excluded within the meaning of the Article. As, however, the defendants have been allowed to occupy this site for so long and as the relations of the parties do not appear to be very good, we think it will be best to direct that in the final decree the whole site should be allotted to the defendants and that, as now agreed, Rs. 388 should be paid by the defendants to the plaintiff in lieu of the plaintiff's share of the house and site.
5. With regard to costs, we think that as there was dispute about this house site the plaintiff was obliged to bring his suit and as he was obliged to bring his suit, he was obliged to include the whole of the joint family properties, and that each party should bear his own costs in the Court below. Both parties should pay and receive proportionate costs of this appeal.
6. Tyabji, J.--I agree.