1. The suit oat of which this second appeal arises was instituted by the plaintiffs as shebaits of a certain Thakur to have it declared that the lands in suit appertain to and are comprised within the Mouzah Ghattauri owned and held by the plaintiffs in durpatni right and that the defendants were not entitled to collect a 9-annas share of the rent, of the tenants on the said lands and the plaintiffs are entitled to recover 16 annas rent from the pro forma tenant defendants. They also prayed for possession and that the kabuliat which the defendants have accepted from the tenants in respect of the said land was inoperative and they should recover Rs. 99 as rents wrongfully collected by the defendants by way of mesne profits.
2. The Subordinate Judge gave the plaintiffs a decree for 15 bighas odd out of the 32 bighas claimed on a finding of fact based on the measurements and report of a Commissioner that 15 bighas 16 cottahs of the land was actually within the ambit of Ghattauri. He found as a fact that the lands had been included by mistake in a settlement made in 1301 between plaintiffs and defendants to hold the lands in the proportion of 9 to 7 as appertaining to the village of Bhalas in which plaintiffs and defendants were co-sharers in that proportion.
3. It was admitted that the arable lands of Mouzah Bhalas had been partitioned among the two co-sharers many years ago, the waste lands, in which the lands in suit are included, being left joint.
4. By the settlement, the tenants, who in 1300 had taken these lands into cultivation as part of Bhalas, gave separate kabuliats to each co-sharer, one for 7 annas in favour of plaintiffs and one for 9 annas in favour of defendants.
5. The defendants denied that the lands belonged to Ghattauri and pleaded limitation and estoppel.
6. The learned Subordinate Judge held that there was no limitation either by discontinuance of possession or by adverse possession.
7. He also held that there could be no estoppel.
8. He construed the kabuliats to mean that there had been no partition of the lands in suit and no severance of the joint ownership though the shares had been defined. This finding has not been set aside by the learned District Judge in appeal and the documents have not been printed and we cannot, therefore, go into any question of their construction in second appeal. He finds that from the beginning of the year 1301, both the plaintiffs and the 9-annas zemindar of Bhalas were in possession of the disputed land by separately realising rents of their respective 7-annas and 9-annas share. The 9-annas zemindar granted a patni to the defendants and he holds that Nilambini the zemindar and her patnidars after her had been in possession of that share and realising rents of it as her own property.
9. He then goes on to say: It was no longer adverse possession, it was possession as of right and adverse.' The precise meaning of this I confess I am unable to appreciate.
10. But his ultimate finding is that the suit is clearly barred by limitation. He also thinks that the argument on estoppel is not without force, but is not inclined to base his decision on it.
11. The plaintiffs have appealed and contend that there has been no dispossession of or discontinuance of possession by the plaintiffs and no adverse possession as between co-sharers and, therefore, neither Article 142 nor Article 144 apply.
12. Both parties were holding the lands jointly under a mistake and the possession of neither party could become adverse till the mistake was discovered. I think this contention must succeed.
13. If the parties agreed to hold possession jointly, there can have been no discontinuance of possession by either and no adverse possession.
14. Adverse possession must be exclusive and to the knowledge of the true owner.
15. That this is so is perfectly clear from the mass of authorities cited by Mookerjee, J., in the case of Jogendra Nath Roy v. Baladeo Das Marwari 35 C. 961; 12 C.W.N. 127; 6 C.L.J. 735 and appears to be concluded by the observations of their Lordships of the Judicial Committee in the case of Radhamoni Debi v. The Collector of Khulna 27 C. 943; 27 L.A. 136; 4 C.W.N. 597.
16. That was also a case of waste land brought into cultivation by tenants under parties having conflicting claims and the present case is much stronger, the land having been brought into cultivation under parties who in ignorance of their real title agreed to hold the land jointly and, therefore, as trustees for each other.
17. The possession required must be adequate in continuity, in publicity and in extent and in this case all that is found is continuity; publicity is negatived by the fact that the parties were in ignorance of their rights and extent fails by reason of the fact that the defendants were never in exclusive possession of the entire land in dispute.
18. Speaking for myself, I should be freely prepared to base my decision on the simple and well known principle that possession by a co-sharer can never be adverse, but accepting the position that possession before the settlement must be held to have been constructively with the owners (the plaintiffs) and that their title under the agreement of 1301 was a different and inconsistent title, even then I fail to see how the defendants possession ever became adverse by reason of their accepting a joint title with the plaintiffs in ignorance of the plaintiffs' rights. This could only raise a question of estoppel, not one of limitation.
19. The point as regards limitation is very clearly put by Neville, J., in the case of Beale v. Kyte (1907) 1 Ch. 564; 76 L.J. Ch. 294; 96 L.T. 390: 'in all cases of mistake in order that laches or acquiescence may be a defence, there must be notice of the error and time runs from the date of the notice and not from the time when the error is committed: 'and as regards separate possession, the learned Judge goes on to say: 'The principal reason why plaintiff's attention was not called to it was because defendant did not take possession of the land in a practical sense, that is, had the land been measured or fenced, he could not have failed to ascertain the difference between himself and his vendors at once. Even if there were laches, time would begin to run only from the time when plaintiff's attention was called to the mistake.'
20. The decision in Purushottam v. Sagaji 28 B. 87; 5 Bom. L.R. 674 together with the dicta, of Lord Eldon in Cholmondeley v. Clinton (1821) 4 Blig. N.S. 1 at p. 109; 22 R.R. 83; 4 Eng. Rep. 721; 2 Mer. 171; 2 Jac. & W.(SIC) on which it was based, is clearly distinguishable, as in both cases the claim to the equity of redemption under a mortgage had become time-barred by acquiescence in the exclusive title of the mortgagor. After the mortgage in that case, the husband of the claimant of the equity of redemption held the property as plaintiff's mortgagee and his possession must be attributed to a right derived from them, his wife being aware of what was being done and having acquiesced in it.
21. It cannot be said in the case before us that plaintiff was holding the property as transferee for the defendants or that he was aware of his rights and acquiesced in the adverse possession of the defendants.
22. In fact in the case cited, the possession of the plaintiff was adequate not only in continuity but in publicity and extent. He had claimed to hold the property as heir to the lady's father and her husband who clearly held a mortgage of the property from her father accepted with her acquiescence a mortgage from the plaintiff. She allowed her right of redemption in this mortgage to become time-barred and there can be no doubt that the plaintiff's admitted possession of the whole inheritance as acknowledged heir of her father was adverse to her rights to her knowledge.
23. In order to plead adverse possession in this case, the learned Vakil for the respondents had to contend that there had been a severance of joint possession by the agreement of 1301. But it is clear that there was no separate possession by the defendants adverse to the plaintiffs inasmuch as there was no notice or knowledge or circumstance that could have given notice or knowledge to the plaintiffs that the defendants' possession was in displacement of their rights. See Tarabai v. Venkat Rao 27, 43; 4 Bom. L.R. 721.
24. In fact, so weak did the case of adverse possession appear that the learned Vakil fell back upon Article 142 and sought to argue that the plaintiffs voluntarily discontinued possession of 9 annas of the property in 1301. The answer to this clearly is that as long as there was no partition by metes and bounds and no holding of the 9-annas parcel and the 7-annas parcel in severalty, there was no discontinuance of plaintiffs' possession. The separate collection of rent from every tenant for every parcel of land clearly kept up the plaintiffs' possession on the whole. As regards any question of estoppel, it is practically conceded that such a question cannot arise in this case for the plaintiffs did not intentionally, by declaration, act or omission, cause or permit the defendants to believe that the land was in the ambit of Mouzah Bhalas.
25. No doubt, they joined with the 9-annas proprietor in granting a patni to the defendants and a question might arise whether the plaintiffs, on recovery of these lands as part of their Mouzah Ghattauri, are not bound to give a patni of them to the defendants. But they cannot be estopped from pleading that they were included in the patni by mistake and the principles laid down in Beale v. Kyte (1907) 1 Ch. 564; 76 L.J. Ch. 294; 96 L.T. 390 above referred to, clearly contemplate the rectification of an instrument of transfer entered into by mistake.
26. They cannot be asked to release the lands to the defendants in this suit by a fresh deed of patni lease, nor do the defendants ask them to do so.
27. I am unable to see that the case of Secretary of State v. Krishna Mani Gupta 29 C. 5 18; 6 C.W.N. 617; 4 Bom. L.R. 537; 29 I.A. 104 which was cited to us by the respondent, has any bearing on the question of either limitation or estoppel in this case.
28. The effect of that decision would be that the defendants would be estopped from denying plaintiff's title as 7-annas landlords of Mouzah Bhalas and plaintiffs would be estopped from denying that defendants were patnidars under them in the 7-annas share, but there could be neither estoppel nor limitation in regard to rights in Mouzah Ghattauri which were neither known to or claimed by either party. As regards the question of title, I agree with my learned brother that the title of the plaintiff in Mouzah Ghattauri is fully admitted and that the parties went to trial from the first on the basis of its recognition. It was faintly suggested in argument that Article 96 might have some application by analogy but in a question of limitation, an Article which applies to an equitable relief cannot be made to apply to a suit for recovery of immoveable property. Besides, it is unnecessary for the appellant to put forward any period unless he is barred otherwise and the respondent does not raise any such question.
29. The result is that, in my opinion, the plaintiffs' suit for declaration of title and recovery of possession through the tenants of 15 bighas 16 cottahs of land in Mouzah Ghattauri as decreed by the Subordinate Judge must be decreed and the judgment and decree of the lower Appellate Court set aside.
30. As regards mesne profits, I think the plaintiffs are not entitled to any prior to the date of suit, for the defendants were holding the land as part of their patni under the plaintiff and the plaintiff is estopped from denying their right to collect rents as long as the patni lease was not rectified by excluding lands which did not fall within the ambit of the patni.
31. What they are entitled to from the date of institution of the suit when defendants had notice of the mistake to the date of recovery of possession must be decided in execution.
32. I would allow the appeal and decree the plaintiffs' suit in the above terms.
33. (February 22, 1913.)--The facts found by the learned District Judge were as follows. There are two villages, Ghattauri and Bhalas, which adjoin. The plaintiffs are landlords of the entire village of Ghattauri and of a seven-annas share of Bhalas. The defendants are landlords of the remaining nine-annas share of Bhalas. At some time prior to the year 1894, the then culturable lands of Bhalas had been partitioned between the plaintiffs and the defendants. The waste lands were not, however, then partitioned. They remained joint. In the year 1894, certain waste lands adjoining the boundary between Ghattauri and Bhalas became culturable and were settled with tenants by both plaintiffs and defendants, on the understanding that the lands belonged to Bhalas. The plaintiffs as 7-annas share-holders of Bhalas took kabuliats from the tenants for their share and the defendants for their 9-annas share of the rent. The plaintiffs' case was that in the year 1905, they made a fresh settlement of the adjoining village Ghattauri of which they were sixteen-anna landlords. On the village of Ghattauri being surveyed for the purpose, the plaintiffs discovered that 32 bighas of the lands which had been settled in 1894 as belonging to the village of Bhalas really belonged to their village of Ghattauri. The plaintiffs sued for recovery from the defendants of the nine-annas share possessed by them in these 32 bighas. The learned District Judge has, in appeal, dismissed the plaintiffs' suit on two grounds: firstly, on the ground that they did not prove their title to the village of Ghattauri and secondly, on the ground that the plaintiffs' suit was barred by limitation.
34. As regards the first ground, I am of opinion that the learned District Judge's judgment ought not to be sustained. The plaintiffs' title to Ghattauri was never really in issue.
35. I am, however, of opinion that the suit was rightly dismissed on the ground of limitation. The suit was instituted in April 1908. From the year 1894, that is more than 12 years before the suit, the defendants had been in possession of the 9-annas share of the lands. Their possession was in their capacity of co-sharer landlords of the village of Bhalas. This possession was incompatible with the plaintiffs' present claim that the lands belong to the plaintiffs' village of Ghattauri. The possession of the defendants being incompatible with the plaintiffs' claim must be held to have been adverse. Adverse possession having continued for more than 12 years, the plaintiffs' title to the lands as proprietor of Ghattauri was extinguished. This follows from Section 28 of the Limitation Act read with Article 144 of the second Schedule of that Act.
36. This argument appears to me to he conclusive: but it may he well to deal with the contentions by which attempt has been made to meet it.
37. It is first contended that the Court should apply the principle under which the possession of one co-sharer of a portion of the joint property is in many cases held not to be adverse to the other co-sharers. The principle, as I conceive it, may be best illustrated by an example. A.B. and C.D. are joint owners of an Estate Whiteacre. C.D. takes exclusive possession of certain lands belonging to Whiteacre. C.D.'s possession of these lands is presumed to be on behalf of his co-sharer, A.B., as well as on his own behalf and in order to make out a case of adverse possession, it is for C.D. to prove expressly that his exclusive possession of the lands was of such a kind as to give his co-sharer A.B., distinct notice that he was setting up an adverse title. I know of no case which goes beyond the principle thus indicated. I am not satisfied that the principle is applicable to the present case. The plaintiffs do not claim as co-sharers. They do not claim the lands as part of a property, to which they are entitled jointly with the defendants. They claim that they are the entire owners and that the property is in fact not joint property at all. Then again the defendants' joint possession of a nine-annas share of the lands in dispute cannot be held to have been on behalf of the plaintiffs who simultaneously took possession of the remaining seven-annas share. The persona of the plaintiffs, if I may use the expression, was exhausted by the possession of their own seven-annas shares. Nothing remained which the defendants could be in possession on behalf of. Much less can the defendants, when they asserted that the lands belonged to Bhalas, be said to have been acting on behalf of the plaintiffs in their character of proprietors of the other village Ghattauri, the character in which the plaintiffs sue in the present suit. The possession of the defendants was in express denial of the plaintiffs' present claim. The contention cannot, in my opinion, prevail. The doctrine of the unity of possession as between co-sharers cannot, in my opinion, be pressed so far.
38. It is next contended that the plaintiffs were, owing: to a definite mistake, prevented from asserting their rights and that this being so and the mistake being common to both plaintiffs and defendants, the possession of the defendants cannot rightly be held to have been adverse to the plaintiffs. Both plaintiffs and defendants were in active belief in 1894 that the lands belonged to Bhalas and not to Ghattauri. It is contended, therefore, that the possession of the defendants was not adverse until the plaintiffs became aware what their rights were. The point involved is of great importance. I asked the appellant to produce authority for the contention that where there is a mistake shared in by both A. and B. as to the rights of B., the possession of A. cannot be adverse to B. The appellant has not been able to produce any authority. In the case of Purshottam v. Sagaji 28 B. 87; 5 Bom. L.R. 674 there is a statement by Jenkins, C.J., to the contrary based on Lord Eldon's dictum in the case of Cholmondeley v. Clinton (1821) 4 Blig. N.S. 1 at p. 109; 22 R.R. 83; 4 Eng. Rep. 721; 2 Mer. 171; 2 Jac. & W.(SIC). It is true that in both these cases the mistake contemplated seems to have been one of law, but where the question is merely as to the meaning of the word adverse, it does not appear to make any difference whether the mistake is one of law or of fact. The word 'adverse' in the expression adverse possession does not mean more than incompatible with the plaintiff's title.' No doubt, the possession must have been such as to have given the plaintiff notice, actual or constructive, of the title which the defendants in possession have claimed, but the word adverse does not connote any knowledge by the plaintiff of his own rights.
39. The case of Tarabai v. Venkat Rao 27, 43; 4 Bom. L.R. 721 does not help. In that case, the defendant's possession had not been in its inception in any way adverse to the plaintiff. By reason of a subsequent transaction, the possession became hostile to the plaintiff's title. It was held that as the plaintiff had no notice of this subsequent transaction and that as there was nothing to put the plaintiff on his guard, the possession did not, in fact, become adverse in law. In the present case, however, the possession of the defendants has been adverse from its inception. From the first and to the knowledge of the plaintiff, the defendants have asserted that these lands belong not to Ghattauri as the plaintiffs claim but to Bhalas.
40. It is last contended that the Article of the Limitation Act applicable is Article 96 and not Article 144. Article 96 applies to suits for relief on the 'ground of mistake' and provides for a limitation of three years from the date when the mistake becomes known to the plaintiff. The Article was intended to apply to a well-known class of actions, I mean, actions for rectification of deeds and rescission of contracts. The present suit is not an action of that kind. Nothing has occurred between the plaintiffs and defendants to rescind or rectify. Further, the suit was not on the ground of mistake. Mistake is merely an incident in the explanation why the suit was delayed. Except for the purpose of avoiding limitation, it is quite unnecessary for the plaintiff to prove any mistake. All he need prove is his title. There was no issue as to mistake, no evidence was offered about it, the equities that arise in such a case were not pleaded or considered. The case was not presented as one grounded on mistake. Article 96 does not, in my opinion, apply.
41. I need only add two observations. The first is that the plaintiffs did not prove that their mistake was induced by any representation by the defendants. The second observation is that the mistake is said to have been discovered merely by a re-laying of the boundary according to the Revenue Survey map. This map was in existence in 1894 when the plaintiff acquiesced in the defendants' adverse possession and it is not too much to say that if the plaintiff had been diligent, no mistake would have been made.
42. I have applied Article 144 of the Limitation Act as being more favourable than Article 142 to the plaintiffs case. The plaintiffs having asserted in paragraph 4 of their plaint that they were in possession within 12 years and having failed to prove that, their suit was, strictly speaking, barred under Article 142.
43. I would dismiss the appeal with costs.
Order under Section 98, Civil Procedure Code.
44. As there is a difference of opinion between my learned brother and myself on a point of law which governs the decree, the point of law slated below is to be laid before the Hon'ble the Chief Justice in order that the appeal may be heard upon that point of law before one or more of the other Judges,
Point of law.
45. Whether in the case where A. is the owner of an estate in which the disputed land is situated and A. and B. are joint owners of an adjoining estate and the land in dispute has been held by A. and B. by mutual consent as part of their joint estate for a period of more than 12 years before suit in ignorance of their rights, any limitation by discontinuance of possession by A. under Article 142 or by adverse possession of B. under Article 144 arises.
46. [The appeal was heard under Section 98, Civil Procedure Code, by the Chief Justice on that point only],
47. (March 10, 1913).--In my opinion, the point of law formulated is covered by the decision of the Privy Council, in Vasudev Padi Khadanga Garu v. Magum Devan Bakshi Mahapatrulu Garu 24 M. 387, 5 C.W.N. 545 : 3 Bom. L.R. 303 : 28 I.A. 81 where their Lordships, in circumstances undistinguishable in any essential feature from the present, held that there was adverse possession with the result that separate property became joint property. The possession of the lands in suit as joint property was adverse to any claim to them as separate property, for the appellants were dispossessed or discontinued their possession of their separate property, in favour of the joint estate so that the case comes within Article 142 in the second Schedule to the Limitation Act but if that be not so, then the possession of the joint family was adverse to the separate estate and thus comes within Article 144.
48. It is suggested that it makes a difference that there was an agreement in this case. I fail to see how that distinguishes the case, for the possession with which the Privy Council had to deal was equally the result of an arrangement. Nor can it make any distinction in favour of the plaintiff if there was consent. The mere fact of consent does not prevent possession being adverse. The test is whether the person who sets up adverse possession is able to show that he held for himself, and if he did so, the mere fact that there was acquiescence or consent on the part of the other persons concerned can, in circumstances like the present, make no difference Purshottam v. Sagaji 28 B. 87; 5 Bom. L.R. 674.
49. I, therefore, answer the question propounded by saying that in the circumstances assumed, limitation either by discontinuance of possession by A. under Article 142 or by adverse possession of B. does arise. The appeal must be decided accordingly.
Holmwood and Chapman, JJ.
50. (March 13, 1913).--In accordance with the judgment of the learned Chief Justice, this appeal is dismissed with costs.