Skip to content


Biseswar Gangooly and anr. Vs. Bhagabati Charan Banerjee and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.26
AppellantBiseswar Gangooly and anr.
RespondentBhagabati Charan Banerjee and anr.
Cases ReferredLokenath Singh v. Dhwakeshwar Prosad Narayan Singh
Excerpt:
adverse possession - co-owner's possession, when adverse--ouster. - 1. this is an appeal by the plaintiffs in a suit for declaration of title to land and for recovery of joint possession thereof along with the defendants. the land in dispute is included in an estate owned jointly by the plaintiffs and the defendants. both the plaintiffs and the defendants were dispossessed by the proprietor of a neighbouring estate, who took possession of the land on the assertion that it formed part of his estate. subsequently, the defendants took a lease of this land from the adverse possessor. the plaintiffs, assert that as the defendants are their co-sharers, their possession cannot be treated as adverse to them. the courts below have concurrently overruled this contention, which appears to us to be wholly unfounded.2. reliance has been placed by the plaintiffs on the.....
Judgment:

1. This is an appeal by the plaintiffs in a suit for declaration of title to land and for recovery of joint possession thereof along with the defendants. The land in dispute is included in an estate owned jointly by the plaintiffs and the defendants. Both the plaintiffs and the defendants were dispossessed by the proprietor of a neighbouring estate, who took possession of the land on the assertion that it formed part of his estate. Subsequently, the defendants took a lease of this land from the adverse possessor. The plaintiffs, assert that as the defendants are their co-sharers, their possession cannot be treated as adverse to them. The Courts below have concurrently overruled this contention, which appears to us to be wholly unfounded.

2. Reliance has been placed by the plaintiffs on the decision of the Judicial Committee in the case of Corea v. Appuhamy (1912) A.C. 230 : 81 L.J. P.C. 151 : 105 L.T. 836 where Lord Macnaghten stated, with regard to the possession of a co-owner, that his possession is in law the possession of his co-owner, and it is not possible for him to put an end to that possession by any secret intention in his mind; nothing short of ouster or something equivalent to ouster can bring about that result. That doctrine has no application to the circumstances of the present case. Here the possession of the plaintiffs was not terminated by the defendants. The possession of both of them was terminated by a hostile claimant. The defendants subsequently came into possession under a lease granted by the claimant. Their possession mast be referred to the title which they acquired under the lease, and not to their title as co-owners of the property held by them and the plaintiffs jointly. No doubt, as observed by Wood, V.C. in Thomas v. Thomas (1855) 2 K. & J. 79 : 110 R.R. 107 : 25 L.J. Ch. 159 : 1 Jur. : (N.S.) 1160 : 4 W.R. 135 : 69 E.R. 701 possession is never considered adverse, if it can be referred to a lawful title. Here, however, the possession of the defendants is referable only to their title as lessees under a person who claims to hold adversely both to the plaintiffs and the defendants. We must, consequently, hold, on the principles explained in Lokenath Singh v. Dhwakeshwar Prosad Narayan Singh 27 Ind. Cas. 465 : 21 C.L.J. 253. : 20 C.W.N. 51 that there was an ouster of the plaintiffs by the defendants, and as that ouster has continued for more than 12 years, the title of the plaintiffs has been extinguished.

3. The result is that the decree of the Sub-ordinate Judge is affirmed and this appeal dismissed with, costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //