1. The plaintiff appeals against the dismissal of his suit for partition by the Subordinate Judge, The suit relates to a family of which the common ancestor, as is now not disputed, was Kanchiraju. He was great grandfather of the plaintiff and great-great-grandfather of defendant No. 1. At the trial it was denied by defendant No. 1, or rather by defendant No. 2 as defendant No. 1, his father, died a few days after the suit was instituted, that the plaintiff and his two brothers defendants Nos. 5 and 6 belonged to the family at all. The plaintiffs case is that his father, Suryanarayana, was adopted by Krishnayya I, the son of Kanchiraju I. The Sub-ordinate Judge has found in favour of the ] adoption, and that is not now disputed: 'before us. '.
2. It is denied in defendant No. 1's written statement that the property concerned is joint family property at all, and it is alleged that it was acquired by defendant No. 1's grandfather Kanchiraju II. But it appears from Ex. A a statement by defendant No. 1's father, Venkayya, at an inam enquiry in 1854, that the family was joint at that time. If that statement is read with the genealogy attached to it, I do not think it is possible to accept Mr. Venkataramana Rao's contention for defendant No. 2 in regard to it that it does not show that the family was joint at that time and had as its joint family property the land to which the statement relates. So I think we must start with the fact that this was a joint family in 1864. It is suggested for defendant No. 2 that Ex. II an extract from the Inam Register in 1869 shows that at least by that time the family had become divided. But, when Ex. II is examined, it is seen that it does not refer to the same property as that to which Ex. A relates but that it refers to a separate inam granted to defendant No. 1's great-grandfather, Venkayya, the brother of Krishnayya I. The fact that that branch of the family had a separate inam does not show that the whole family was not joint. In 1904 we find that defendant No. 1 made a statement to the Tahsildar Ex. 0-2 in regard to the house which stands upon the site in Bapatla town with which this suit is concerned. He then said that the roof of that house had been in the enjoyment of his forefathers from time immemorial, ever since the village came into existence. The 70 or 80 years which he mentions, it will be seen, would go much further back than the date of Ex. A. Now this family has as its family name 'Bapatla'. which indicates that that family house was in Bapatla. There is no evidence whatever that there is any other house in Bapatla which was ever occupied by them as their family house. When the existence of the family as a joint family in 1864 is taken with defendant No, l's statement about the house in 1904, I think the only reasonable inference is that the house with which we are concerned was the family house of the joint family. It has been suggested that the house mentioned in Ex.. C-2 has not been identified by clear evidence with the house with which we are concerned, But it does not appear that the identity of the house was ever disputed before the Subordinate Judge.
3. There is no definite evidence that this joint family was divided at any particular time, and that would be very curious if there had been a definite partition, because after all 1864 is not so very long ago. But does not follow that, because the house and its site were joint family property, the plaintiff has still a right to ask for a share in them. It is contended as part of the defendant No. 2's case that there is enough to show that there has been such an ouster of the plaintiff's branch as precludes him from recovering any share in the property now. The site is one in the Bazar Street of Bapatla. It is admittedly very valuable now and must have been valuable for many years. On this site it appears that there were originally two houses and a thatched shed. The evidence is that one of these houses and the thatched shed were pulled down by defendant No. 1, and in the compound and on their sites he constructed 15 to 20 years ago or longer 13 godowns, the rental value of which appears from Ex. D to be Rs. 150 a year each, and that he also built an upper storey on the remaining house at a cost of Rs. 4,000 or Rs. 5,000. All this represents a large outlay. There is nothing to suggest that the joint family could have provided the funds or even a small fraction of the funds necessary for these operations. The evidence of a few witnesses for the plaintiff, who say that they advanced rent in recent years in comparatively small sums, does not show that anything more was got in that way than might have been required for repairing the godowns and their evidence relates mainly to 1918, It appears, therefore, that defendant No. 1 who admittedly had these buildings constructed raised the funds quite apart from the joint family. It is not disputed that defendant No. 1 and his branch of the family have been living in this house from the time of Kanchiraju I, but it is clear from the evidence that for very many years the plaintiff's branch has never occupied the house regularly The plaintiff's grandfather, Krishnayya I was in the service of the Vizianagaram estate; so was the plaintiff's father Suryanarayan; so also was Ramayya, a nephew of Krishuayya II, the father of defendant No. 3. All these members of the family appear to have lived mainly at Vizianagaram, corning to Bapatla only on occasions until they retired from service. Now the mere fact that they did not occupy the family house while they were employed in the Vizianagaram service certainly does not show that they were ousted from the family property in any effective way. But there is a good deal more than that Krishnayya I, it appears, died at Vizianagaram. Suryanarayana, the plaintiff's father retired from service with a very modest pension in 1911. Curiously enough though he came back to Bapatla he did not come to live in the family house in spite of the fact that he was in very reduced circumstances and had sons to educate. He went first it appears and lived in the village of Yajali, a few miles away. Then a few years later he came into Bapatla for the purpose of educating his third son defendant No. 6, But, instead of coming to the family house or even demanding that his son should be kept in the family house while he was attending school in Bapatla, Sanganarayana took a house in the agraharam on rent in spite of his very small means. That was a very odd thing to do if he still had a right which he wished to maintain, in the family house. It is suggested for the plaintiff that Suryanarayana was a man not of very strong will or intelligence. But at any rate he served for some years in Vizianagaram estate, and there is no evidence that he was in any way out of his mind when he retired. Moreover, in 1911, when he finally returned from Vizianagaram to Bapatla his eldest son, defendant No. 5 appears to have been 18 or 19 years of age. It is very surprising that Suryanarayana and his sons did not insist upon their rights of living in the family house and being supported by the joint family, if they were not being indefinitely excluded from the property. Before the Subordinate Judge defendant No. 3 and his son defendant No. 4, who are son and grandson of Krishnayya II, maintained like the plaintiff, that they had a right to a share in this property; but they have not appealed against the Subordinate Judge's decision. The behaviour of Krishnayya II is even more marked than the behaviour of Suryanarayana in relation to this property. And, although plaintiff cannot be affected directly by any evidence that Krishnayya II was excluded from this property, what happened to Krishnayya II has some bearing as showing the attitude taken up by defendant No. 1 and his branch towards the rest of the members of the family in regard to this property. This Krishnayya came back from Vizianagaram, it appears, about 1895 or 1896, blind and almost penniless. There is no evidence that he went about Bapatla begging his bread. He did not go back to the family house, or at any rate he was kept out of it. It might be said perhaps that he was not in a position to insist upon his rights or to file a suit; but it appears that in 1895 his wife, Bavamma, did file a suit against defendant No. 1 in regard to a mortgage she had obtained over her brother's property; defendant No. 1 being the guardian of that brother's sons. But in spite of the fact that Krishnayya's wife!could bring a suit like that and carry it to a successful termination no suit was brought by Krishnayya to assert his rights in this family house; rights which he was in the utmost need of exercising if he had the opportunity of doing so. It is also to be remarked that defendant No. 3 himself in 1914 wrote a letter Ex, III to defendant No. 1 asking for his assistance in getting him carried and mentioned incidentally that one of his difficulties was that he had no 'land.' If it might be thought that by that reference to 'land' he did not mean to include the house site and buildings in Bapatla, that suggestion is rebutted by the fact that in his own evidence he says that, when he referred to 'land' in that letter, he meant immoveable property.
4. Now all this shows that the branches of the family other than the 1st defendant's branch appear to have been kept out of this house and property for a very long period going back altogether for more than 50 years. When he asked what he could point to in the way of incidents showing that any member of the joint family other than defendant No. 1's branch lived in this house during the last 50 years, Mr. Raghava Rao for plaintiff is only able to point to evidence that Suryanarayana's grahapravesam ceremony was performed in this house, as it might have been, if he was only a relation but not treated as member of a joint family, and that members of the family who were in service at Vizianagaram, when they came back on leave or otherwise or were passing through Bapatla, according to the evidence of some of the witnesses, stayed occasionally in this house. Well, that they might do as relations, even if they had no right to the house. On the other hand, we find that defendant No. 1's father Venkayya appears to have asserted his right to deal with the property very soon after the date of Ex. A. Exhibit IX shows that in 1867 he mortgaged the property as if it were his own; and Ex. VII, which is dated 1870 shows that he had by that time sold a part of the property. Exhibit VII, I may mention is attested by Krishnayya II. It must be noticed that at the time, that is in 1867 and 1870 defendant No. 1's father was the senior member of the family. But it does not appear that either of those transactions was done in his capacity as manager of the family. In Ex, IX he describes the property as his own. Besides all this there is some evidence that Suryanarayana and Krishnayya II were definitely told on occasions by defendant No l that they had no share in this property. In regard to Satyanarayana the evidence is that of P.W. No. 12, who says that on one occasion about 24 years before the suit Suryanarayana objected to defendant No. 1 putting brick walls on the land in connection with the construction of godowns, and that defendant No. 1 replied to him 'I do not know who you are. If you have a share, file a suit. You have no share.' That evidence is not corroborated apart from the general corroboration of Suryanarayana's conduct; but the Subordinate Judge has accepted it as trustworthy. In regard to Krishnayya II there is the evidence of D. Ws. Nos. 1 and 8 that about the year 1896 he demanded a site from defendant No. 1 and defendant No. 1 refused to give him a site. Those two witnesses appear to be speaking to the same incident; but they do not mention each other's presence on the occasion. However, the Subordinate Judge accepts the evidence of D.W. No. 1 who is a man of education and some position, in regard to that incident as trustworthy. It will be seen that the incident is supposed to have taken place about the same time as the suit of 1895 brought by Krishnayya II's wife against defendant No. 1.
5. Now, if we put all these things together, do they not show an ouster of the plaintiff's branch and incidentally Krishnayya II's branch by defendant No. 1? Defendant No. 1 and his father appear to have treated the property as their own from 1867; and defendant No. 1 spent a very large sum in raising the main house by another storey and building godown on the site taking the income from those godowns entirely for himself. Members of the two other branches, Suryanarayana and Krishnayya II, when they were in great need, were not taken into the house and do not appear to have attempted to enforce their rights. All this goes back a long way and appears to indicate a regular course of conduct. In a case like this, even when there is no evidence of ouster at a particular time, it is not unreasonable that we should infer an ouster as an explanation of the facts as we find them. That that may be done was laid down in Gangadhar v. Parashram Bhalchandra 29 B. 300 : 7 Bom. L.R. 252. It is based upon a very old authority relating to tenants-in-common, which may be applied in a case like this, namely Doe v. Prosser (1774) 1 Cowp. 217 : 98 E.R. 1052 a case heard by Lord Mansfield in 1774; and that principle has also been recognised in Ahamuddin Tamijuddin v. Amiruddin 44 Ind. Cas. 216 a case of the Calcutta High Court, and Rama Pande v. Ram Sarup Pande 58 Ind. Cas. 731 a case of the Patna High Court. Viewing the case in that way, I do not think we should be justified in differing from the decision of the Subordinate Judge in regard to adverse possession by ouster.
6. In my opinion, therefore, this appeal should be dismissed. But, as defendant No. 2 has failed in one important aspect of his case, namely his contention that this was not a joint family and the property was ever joint family property, I think the proper order will be that each party should bear his own costs in this Court.
7. The memorandum of objections should be dismissed with costs.
Kumaraswami Sastri, J.
8. I agree.