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Joytun Bibi Vs. SolimuddIn Choukidar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1924Cal356
AppellantJoytun Bibi
RespondentSolimuddIn Choukidar and ors.
Excerpt:
- .....dismissed entirely.2. the findings are that the plaintiff has been out of actual possession of the land in suit since a few years after the plaintiff's father's death which took place about 40 years ago and that the second defendant has been in possession of the land for over 12 years.3. the appeal turns on the question whether the principle that possession by a co-sharer is not ordinarily adverse applies to the facts of the present case. though, as the learned subordinate judge points out defendant no. 1, the husband, is no co-sharer with the plaintiff, before he could the treated as a stranger it must be shown that he was possessing the land asserting this own right. the finding of the munsif was that he must be held to have possessed the land as a manager for the whole of the family......
Judgment:

Newbould, J.

1. The plaintiff and the second defendant in this suit are the daughters of one Kalamaddi. The first defendant is the husband of the second defendant. The plaintiff brought the suit for declaration of her title to 1/3rd share in four plots of land and for recovery of, possession thereof claiming as one of the heirs of Kalamaddi. In the First Court the plaintiff got a decree declaring her title to 1/3rd share of plots Nos. 1 and 4 and her suit was dismissed as regards plots Nos. 2 and 3. On appeal by the defendants her suit has been dismissed entirely.

2. The findings are that the plaintiff has been out of actual possession of the land in suit since a few years after the plaintiff's father's death which took place about 40 years ago and that the second defendant has been in possession of the land for over 12 years.

3. The appeal turns on the question whether the principle that possession by a co-sharer is not ordinarily adverse applies to the facts of the present case. Though, as the learned Subordinate Judge points out defendant No. 1, the husband, is no co-sharer with the plaintiff, before he could the treated as a stranger it must be shown that he was possessing the land asserting This own right. The finding of the Munsif was that he must be held to have possessed the land as a manager for the whole of the family. The finding has been reversed on appeal, and I must accept that finding that he was not the manager on behalf of the plaintiff as well as his wife. But the fact that he was looking after the land would not be adverse to the plaintiff unless it is found that he was possessing the land asserting his own right and not as a manager of his wife's property. If defendant No. 1 was in possession openly asserting his own right and not that of his wife for a period of 12 years in such a manner as to amount to what is called notorious exclusion, then the plaintiff's case would fail. But if this defendant possessed the land without any such assertion of title in himself, and the facts were such that the plaintiff could not be expected to know that he was not possessing it on behalf of the plaintiff's sister, then the plaintiff's suit would not be barred. The findings of the learned Subordinate Judge are not sufficiently clear to ascertain whether his decision on the question of limitation is right or not.

4. The appeal is accordingly decreed and it will be remanded to the lower Appellate Court for a fresh decision having regard to the above remarks.

5. Costs will abide the result.


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