1. This appeal arises out of a unit for the establishment of the plaintiff's purchased jamai right to 1/7th share of 28 bighas of land and for recovery of possession of the same. The land originally belonged to one Nizamuddi Gazi, who left three sons and one daughter Nidra Bibi. The plaintiff purchased the l/7th share of Nidra Bibi from her heirs on the 5th Agrahayan 1320 B.S. Defendants Nos. 3 to 14 are the heirs of the three sons of Nizamuddi, who were entitled to 6/7th share of the land. Defendants Nos. 1 and 2 appear to have purchased all the lands at a sale held in execution of a mortgage decree against the sons of Nizamuddi or their representatives-in-interest, so far back as 1287. and it is found by the Court of first instance that the heirs of Nizamuddi took settlement of 18 1/2 bighas of land from defendants Nos. 1 and 2 and the latter are in possession of the 18 1/2 bighas of land through them as tenants from 1287. The remaining lands are alleged to be in the possession of defendants Nos. 15 to 29 under defendants Nos. 1 and 2.
2. The Court of first instance held that although the vendors of the plaintiff had title to the l/7th share, his claim was barred by limitation by reason of the adverse possession on the part of the defendants.
3. On appeal the learned Subordinate Judge same to a different conclusion. He was of opinion that it was a case between co-sharers, that in order to constitute adverse possession against a co-sharer, such possession must be openly asserted to the knowledge of the co-sharer and that there was no satisfactory evidence on the record to show that Nidra Bibi or her sons had such knowledge. He accordingly found that the suit was not barred by limitation, the possession of the defendants not being adverse. Evidently the learned Subordinate Judge was dealing with the case as if it was one between the plaintiff and defendants Nos. 3 to 14 only, and entirely ignored the fact that the property was claimed by defendants Nos. 1 and 2 who asserted a hostile title not only against Nidra Bibi and her sons but also against her co-sharers, that is, against all the co-owners. The principle of adverse possession in such cases has been pointed out in the case of Biseswar Gangooly v. Bhagabati Charan Banerjee 35 Ind. Cas. 26 : 24 C.L.J. 38. It was held in that case that where the possession of both co-owners of a property was terminated by a hostile third party who claimed the property adversely to both of them and one of the co-owners subsequently came into possession of the property under a lease granted by the adverse possessor and continued to do so for more than twelve years, the title of the other co-owner to the property was extinguished, inasmuch as the possession of the property most be referred to the title which the co-owner acquired under the lease and not to his title as a to owner of the property.
4. It is clear that the case has not been decided by the lower Appellate Court from the right point of view. It ought to have considered not only the question whether the possession of defendants NOS. 3 to 14 was adverse to that of Nidra Bibi, but also whether the possession of defendants Nos. 1 and 2 through defendants Nos. 3 to 14 in respect of the 18 1/2 bighas of land and also the possession of defendants Nos. 1 and 2 through the other defendants (Nos. 15 to 29) in respect of the remaining land was adverse to her (Nidra Bibi) and her successor-in-interest.
5. It is contended by the learned Vakil on behalf of the respondent that in the present case the l/7th share of Nidra Bibi was in the possession of her brothers sons, and although the defendants Nos. 1 and 2 professed to have acquired title not only to their shares, but also to the share of Nidra Bibi under the sale in execution of the mortgage decree, there was no change in actual possession, because the sons of Nizam continued to be in possession though under a lease taken from the purchasers, defendants Nos. 1 and 2, and it was not shown that Nidra Bibi had knowledge of their possession under such lease. This will be considered by the Court below.
6. The decree of the lower Appellate Court is accordingly set aside and the case sent back to that Court in order that the, question of adverse possession any be decided on the entire evidence and circumstances of the case as indicated in the judgment. Costs will abide the result.