1. This is an appeal by the plaintiffs in a suit for declaration of their title to the lands in suit as tenure-holders, in respect of 8as 2gds 2ks share of the same, and for partition of the lands by metes and bounds. The plaintiffs' claim in suit was resisted, by defendant 1 whose tenancy right under the zemindars concerned in respect of the remaining share of the lands in suit was not disputed, and it was not also disputed that the zemindars under whom defendant 1 held his tenancy were the cosharers of the zemindars under whom the plaintiffs held. The question in controversy in the case as between the plaintiffs and defendant 1, so far as the appeal to this Court is concerned, was whether the plaintiffs' title was extinguished by adverse possession on the part of defendant 1; whether the defendant has acquired a title to the 8as 2gds 2ks share of the lands in suit by adverse possession.
2. The Court of first instance came to be of the opinion that
people who derive title, from cosharers and exercise possession on the strength of such title, stand on the same footing as the cosharers themselves, as they step into their shoes. Hence people who are entitled to possess undivided share in the land, whether they claim to do so on the strength of co-ordinate interest of the same grade or not, are in the same position as cosharers or co-tenants or co-proprietors.
3. The trial Court then proceeded to hold that there was no hostile possession by defendant 1 before 1326 B.S. and that the defendant's possession became adverse to the plaintiffs less than twelve years before the institution of the suit, and the suit was not barred by limitation. On appeal by defendant 1 the learned Subordinate Judge in the Court of appeal below agreed with the trial Court in view that the plaintiffs and defendant 1 stood in the relation of co-owners. It was held on the facts and in the circumstances of the case, that the plaintiffs could not be said to have been in constructive possession of the lands through the defendant; the defendant's possession was held to be adverse to the plaintiffs:
circumstances of the case were such as to charge the plaintiffs with knowledge of the assertion of a hostile title by defendant.
4. The appeal by defendant 1 was accordingly allowed by the lower appellate Court, and the plaintiffs' suit was dismissed. The first point that arises for consideration is, whether the view taken by the Court below that the plaintiffs and defendant 1 in the suit stand in the relation of co-owners is correct so-far as the holders of the superior interests are concerned, the zemindara under whom the plaintiffs and defendant 1 hold the lands in question in respect of different undivided shares, they are undoubtedly co owners; each in possession of the whole and of the different shares, which means that each co-owner has control or defacto possession of the whole; he exercises such control partly on behalf of himself and partly on behalf of his co-owner. In a case of joint tenancy the joint tenants have both single possession and a single joint right to possess: (see Littleton's Tenures, Sections. 288, 311, 314, and 315 Markby's Elements of Law, Sectin 399). As has been stated at p. 1034 of the very exhaustive and valuable commentary on the Law of Limitation in British India, by Dr. Radha Binode Pal, recently published, the meaning of the above rule adopted by English lawyers is that whereas each co-owner has access to and control over every part of the property, and so may be said to have possession in the sense-of detention of the whole, yet he exercises that control not on behalf of himself alone, but partly on behalf of himself in respect of his own share and partly as representative of his co-owner. A co owner in sole possession for a length of time can in this view of the matter maintain his exclusive possession even against his other co-owners till partition. Applying the above proposition to the facts and circumstances of the case before us, it cannot be said that; the plaintiffs and defendant 1 deriving, the interest of tenants in the lands in suit under superior holders who are co-owners of a zemindari in respect of different shares leased out to the plaintiffs and defendant 1 separately by them, are persons who stand in the category of co-owners; and that the interests of the two different sets of tenants, the plaintiffs on the one hand and defendant 1 on the other, was coordinate. The fact that they were holders of separate and distinct interests as tenants in respect of two different shares of a joint property, prevent them from claiming that they stand in the relation of co-owners. The plaintiffs and defendant 1 as between themselves cannot be considered to be persons who are in legal possession of the entire shares of the tenants' interest in the lands in question, and there is no such equal right to the possession of every part and parcel of the subject matter of the separate tenancies, created in favour of the plaintiffs on the one hand, and defendant 1 on the other: there was no unity of right of possession to constitute a tenancy in common: see in this connexion the case of Biswanath Chakraburty v. Rabija Khatun : AIR1929Cal250 . In our judgment, the plaintiff and defendant 1 in the suit out of which this appeal has arisen, could not under the law be considered to be co-owners in respect of the lands in suit and the adverse possession asserted by defendant 1 could not therefore be adverse possession of a co-owner in regard to a property.
5. On the findings arrived at by the Courts below, defendant 1 had been in possession of the lands in suit for more than twelve years before the date of the institution of the present suit by the plaintiffs. The trial Court came to the decision that the plaintiffs and defendant 1 being co owners, the possession of defendant 1 could not be treated as adverse possession extinguishing the title of the plaintiffs. The Court of appeal below, however, as has been mentioned already, held that the defendant's possession was in the assertion of a hostile title, and inasmuch as the plaintiff's could be charged with the knowledge of the same, the plaintiffs title to the lands in suit was extinguished. In view of the conclusions arrived at by us in disagreement with the view expressed by the Courts below that the plaintiffs and defendant 1 were co-owners, the question arises, what was the quantity of estate acquired by the possession proved by defendant 1, Defendant 1 has by his possession gained an indefeasible title as against those who had an estate in possession, and against whom the possession by the defendant was asserted; and the title gained is no longer than the interest which the rightful owners, the plaintiff who claimed title to the lands in suit as tenure-holders in regard to a specified undivided share of the lands in suit have lost by the operation of law. The title gained by defendant 1 by his possession, must: therefore have the same legal character, and be tenure-holders' interest accord-ingly: (see Walter v. Yalden (1902) 2 KB 304.) Defendant 1, respondent in this appeal, had by his adverse possession, as proved in the case was in a position to defeat the claim of the plaintiffs in the suit as tenure-holders in respect of an 8as 2gds 2ks share of the lands in suit, and the suit has to be dismissed on that ground.
6. In the result the appeal is dismissed with costs, and the decree of the Court of appeal below, dismissing the plaintiff's suit, is affirmed.