1. These two appeals arise out of two suits, Nos. 17 and 18, for declaration of title and confirmation of possession of two different homesteads. In Suit No. 17 the plaintiff's case was that the disputed homestead formerly belonged to their father who left behind him his three sons, the two plaintiffs and the pro forma defendant, as his heirs; that the two plaintiffs thus acquired two-thirds share and the pro forma defendant one-third share, all being in joint possession of the homestead though in separate occupation of the different huts therein : that they held the same under the Maharajah of Hill Tipperah; that in 1906 the Maharajah obtained a decree for ejectment against the three brothers but the decree was never, executed and the three brothers remained in possession as before; that subsequently one of the brothers, namely, the pro forma defendant, executed a kabuliyat in favour of the Maharajah for a term of five years from 1318 to 1322; that on the expiry of the said term the Maharajah obtained another ejectment decree against the pro forma defendant and attempted to pull down the huts in execution of the decree. The two plaintiffs then instituted the suit for declaration of their niskar title to a two-thirds share in the homestead for confirmation of possession therein and for an injunction restraining the Maharajah from interfering with the plaintiff's possession. In Suit No. 18 the facts were somewhat similar except that the plaintiff therein claims a one-half share in the homestead concerned in that suit.
2. The Munsif decreed Suit No. 17 declaring the plaintiff's title, to a two-thirds share and confirming their possession therein and granting the injunction prayed for; the plaintiffs' niskar title not being proved, he dismissed Suit No. 18.
3. There were appeals from both the decisions by the plaintiffs in Suit No. 18 and the Maharajah in Suit No. 17. There were some cross-objections as regards the order for costs, but with these we are not concerned. The Subordinate Judge upheld the Munsif's decision in Suit No. 17 and reversed his decision in Suit No. 18 and gave the plaintiff a decree therein. The Maharajah has appealed.
4. The view upon which the Subordinate Judge has proceeded is that the Maharajah's case, that the plaintiffs vacated their respective homesteads after the ejectment decrees obtained against them and the pro forma defendant, has not been made out, that they remained in possession after the said decrees as before, that they were not affected by any arrangement which may have been entered into by the pro forma defendant in favour of the Maharajah, and that their possession since they, were treated as trespassers in the said ejectment suits was adverse to the Maharajah.
5. The main contention that has been urged in support of the appeals is that if during the continuance of a trespasser's possession which is adverse to that of a true owner some acts of possession, though slight, are performed by the true owner, a title by adverse possession cannot accrue in favour of the trespasser, his possession having, in the eye of the law, ceased during the time that the true owner has performed those acts. As a proposition of law the argument, no doubt, is sound, but the principle in my opinion has hardly any scope for application in the present case. The possession of the two plaintiffs to the extent of two-thirds in the homestead concerned in Suit No 17, and that to the extent of one-half belonging to the plaintiff of Suit No. 18 in the homestead concerned therein, has continued all along upon the findings of the Subordinate Judge. The pro forma defendant could not by entering into arrangements with the Maharajah put him in constructive possession of anything, in excess of the shares of which they themselves were in possession. Whatever may have been the nature of the possession of the Maharajah, that is to say, by realization of rent or anything of that sort such possession could only extend to the share which legitimately belonged to the said pro forma defendant. There was no obstacle to the plaintiffs having acquired a title by adverse possession in respect of the shares to the extent of which they were in possession for the statutory period. The plaintiffs, therefore, are clearly entitled to have a declaration of their right to the shares which they claimed and also the consequential reliefs that they-prayed for.
6. There was a further contention put forward in Appeal No. 1788 of 1925 which arises out of Suit No. 18. The contention is that the decree of the Subordinate Judge, in so far as it purports to decree the plaintiff's suit, must involve a declaration in his favour of the niskar right which he set up, but there is no finding in the judgment of the Subordinate Judge that that right has been established. On looking into the materials which the plaintiff has produced before the Court it seems to me that no serious attempt was made by the plaintiff to prove such right. The result is that this contention will succeed.
7. Second Appeal No. 1787 of 1925 will be dismissed with costs. Second Appeal No. 1788 of 1925 will be allowed with costs, the decree of the Subordinate Judge to which it relates being modified 'by the addition of the words' and the plaintiff's prayer for a declaration that he has a niskar right in the property in suit is dismissed.'