Nasim Ali, J.
1. This appeal arises out of a suit for joint possession of certain lands after declaration of title. The plaintiffs' case, as stated in the plaint is as follows: The disputed lands comprising a Bastu and a small tank formerly belonged to the two brothers Kailash Nath Adhikari and Bhairab Nath Adhikari in equal shares. Kailash used to possess exclusively the northern halt portion of the Bastu land, the southern half portion of the western bank of the tank and five palm trees on the western bank and another one on the south-western corner. Bhairab used to possess the southern half of Bastu land, the northern half of the western bank of the tank and six palm trees to the south of the tank. The tank was in joint possession of both the brothers. Kailash made a gift of his moiety in favour of defendant 2 and his brother Ananda Gopal Das by a deed of gift, dated 9th Saraban 1289 B.S. Ananda left home about 25 years ago relinquishing his interest in favour of defendant 2. Defendant 2 left the village Singedda in which the disputed lands are situated for Mandunia after the death of his mother entrusting the care of his properties to the sons of Bhairab and was in Ijmali possession by enjoying the usufruct of his share of the property. On 3rd Ashar 331 B.S. defendant 2 sold away his eight annas interest in the disputed lands to plaintiffs 1 and 2 and the husband of plaintiff 3 by a registered Kobala Defendant 1 claimed to have purchased the entire 16 annas interest of the suit lands and dispossessed the plaintiffs. There was a proceeding under Section 145, Criminal P. C, in which defendant 1 succeeded. On these allegations the plaintiffs brought the present suit for declaration of their title to and for recovery of joint possession of the eight annas share of the disputed lands with defendant 1.
2. The defence of defendant 1 is that the disputed lands originally belonged to Kailash and Bhairab in equal shares, that Kailash died without any issue and after his death Bhairab became entitled to this eight annas share by right of inheritance from Kailash and after his death his sons possessed the entire 16 annas share of the suit lands and that defendant 1 subsequently purchased the entire 16 annas interest of the said lands from the sons of Bhairab by registered Kobalas, the last of which was executed on 23rd Kartic 1322 B.S. The defence further was that the title of the plaintiffs' vendor and of the plaintiff, if any, was extinguished by adverse possession of Bhairab and his successors-in-interest for more than 12 years. The trial Court on a consideration of the evidence in the case came to the following findings:
3. (1) That defendant 1 was in exclusive possession of the suit lands for about 18 years; (2) that defendant 1 planted various trees On the eastern bank of the tank and converted it into a garden; (3) that defendant 1 re-excavated the tank; (4) that neither the plaintiffs nor their vendor had ever any possession in any part of the suit lands within 12 years from the date of the institution of the suit; (5) that the title of the plaintiffs' vendor, if any, was extinguished by adverse possession of Bhairab's sons and of defendant 1; (6) that neither the plaintiffs nor their vendor were ever recognized as cosharers by defendant 1 or Bhairab's sons; (7) that Bhairab's sons or defendant 1 did not know even that the plaintiffs' vendor was a cosharer. On these findings the learned Munsiff dismissed the plaintiffs' suit holding that the title of the plaintiffs' vendor and of the plaintiff's was extinguished by adverse possession. On appeal by the Plaintiffs the learned Subordinate Judge his not reversed the above findings of fact arrived at by the trial Court. He has however dismissed the plaintiffs' claim so far as the Bastu portion of the plaint land is concerned. As regards the remaining portion of the disputed land, the lower appellate Court has decreed the plaintiffs' claim. Hence the present appeal by defendant 1.
4. The only point urged in support of the appeal is that on the findings of fact arrived at by the trial Court which have not been reversed by the lowar appellate Court, the lower appellate Court should have dismissed the plaintiffs' claim in toto. As has bean already stated the learned Subordinate Judge who heard the appeal has dismissed the plaintiffs' claim so far as the Bastu portion of the disputed land is concerned, on the ground that the plaintiffs' title to that portion of the disputed land was extinguished by adverse possession. As regards the remaining portion of the disputed land, the learned Judge was of opinion that the plaintiffs' vendor being a cosharer was in constructive possession through the other cosharers, namely, defendant 1 and his vendors. Now as regards the plaintiffs' claim with regard to the western and southern bank and all the trees on those banks, it is very difficult to understand how the learned Judge could distinguish this part of the plaintiffs' claim from the claim as regards the Bastu portion of the disputed land. The plaintiffs' specific case in the plaint was that so far as these banks and all the palm trees are concerned, the plaintiffs' vendor was in exclusive possession and not in joint possession with defendant 1 or his vendors. The learned Judge no doubt has observed that this exclusive possession as stated in para. 2 of the plaint with regard to these banks and the palm trees on those banks has not been proved. But the plaintiffs having failed to prove the specific case they made in the plaint, they cannot fall back upon theory of constructive possession. So far as the tank is concerned, the plaintiffs' case was that their vendor was in joint possession with defendant 1 and his vendors. But in my opinion the facts which have been found in the present case go to show that there had been ouster of the plaintiff and his vendor more than 12 years ago and that the plaintiff's title was extinguished by adverse possession for more than 12 years long before the institution of the suit.
5. It appears that after the death of Kailash, Bhairab entered into possession of the eight annas share of Kailash in his own right as an heir of Kailash. Bhairab never racognized the plaintiff's vendor or the plaintiff as his cosharers. In fact he asserted his own right to the remaining eight annas share of the property by inheritance to the exclusion of the persons claiming under gift from Kailash. Bhairab's sons after the death of Bhairab never recognized the title of the plaintiffs' vendor, as their cosharer. In fact, as the learned Judge has pointed out for the last 30 years the plaintiffs' vendor was never in possession of any portion of the suit land or of any share thereof. The learned Subordinate Judge appears to have relied on a decision of this Court in Biswa Nath v. Rabija Khatun 1929 Cal 250 for the view which he has taken in this matter. In that case Mukerji, J., observed as follows:
As a general proposition the entry of one co-tenant in the absence of clear proof to the contrary, enures for the benefit of all. The law makes a presumption that the relation between co-tenants is amicable rather than hostile and regards acts of one co-tenant as being in subordination of the title of all the co-tenants, for by so regarding they may be made to promote the interest of all. This rule prevails not merely on behalf of those who are co-tenants when the entry was made, but extends to all who afterwards acquire undivided interests in the property:
6. The learned Judge referring to the case of Bhavrao v. Rakhmin (1899) 23 Bom 137 (F B). also observed as follows:
The case of Bhavrao v. Rakhmin (1899) 23 Bom 137 (F B). has also little bearing upon this question as it was a case where certain members of a joint Hindu family alienated by sale and mortgage specified plot of land, 'out of their share' giving boundaries of the plots and covenanting for title, and what was really decided was that the purchaser entered as owner and not as a cosharer and being in such possession for over 12 years was able to defeat under Article 144 the title of the co-parceners of the vendors or mortgagors.
7. From these observations it is clear that where a cosharer enters into possession of the share of the other cosharer not in his right as a co-tenant but in denial of such right of the co-tenant, it cannot be said that his possession would enure for the benefit of the other cosharers whom he has excluded from the enjoyment of the property. It is true that the principle of possession between the co-owners is that every co-owner is a tenant-in-common and that the possession of a tenant-in-common is not adverse to that of his co-tenants, but a person cannot be a tenant-in-common with a person whom he never recognized as a co-tenant. So far as Bhairab is concerned it is clear that when he entered into possession of Kailash's share he repudiated the title of the donees from Kailash as he entered into possession of that share by right of inheritance by setting up his own right of inheritance from Kailash. It does not appear also whether Kailash was even aware of this deed of gift in favour of these donees. It was not disputed before me that in the absence of such a gift Bhairab would be the heir of Kailash. It does not appear also that these donees ever possessed any portion of the disputed land at any time on the basis of the deed of gift or that they asserted their right on the basis of the gift. In these circumstances it cannot be said that Bhairab or his heirs were in possession of Kailash's share as cosharers, because they never recognized the plaintiffs' vendor as a cosharer. The sons of Bhairab had no knowledge even of the existence of these donees: see the case of Mahendra Nath Biswas v. Charu Chandra Bose 1928 Cal 396. In this case another peculiar fact is that defendant 1 purchased the 16 annas share of the property from the heirs of Bhairab more than 12 years ago. He is in possession of the entire property on the basis of his purchase for more than the statutory period. He is not the transferees of an undivided share. Bhairab's sons transferred the 16 annas share in the property setting up their exclusive possession to the property more than 12 years ago. Defendant 1 cannot therefore be said to have entered into the possession of the 16 annas share of the property as a co-sharer but in his own right as 16 annas owner of the property by purchase from the heirs of Bhairab who had already set up an exclusive title to this property.
sole possession by one tenant-in-common continuously for a long period without any claim or demand by any person claiming under the other tenant-in-common is evidence from which an actual ouster of the other tenant-in-common may be presumed see the case of Chandbhai Mahomadbhai Vohra v. Hasanbhai Rahimtolla 1922 Bom 150.
9. Under these circumstances I am of opinion that the learned Munsif was justified from the facts found by him and which have not been reversed by the lower appellate Court, in coming to the conclusion that the title of the plaintiffs or of his vendor was extinguished by adverse possession. The result therefore is that this appeal is allowed and the judgment and decree of the lower appellate Court are set aside and those of the trial Court restored with costs throughout.