1. This is an appeal by the plaintiffs for declaration of title to a share in two tanks and for recovery of joint possession thereof. The case for the plaintiffs was that the disputed tanks originally belonged to one Nityanand Kamila, and after his death, were held in equal halves by his two sons. The plaintiffs claimed to have purchased one-thirtieth share in the tanks from Nirupama Dasi, wife of Dinanath Kamila, who was a great-grandson of the original proprietor by one of the five sons of his second son. The defendants are the representatives of the first son of the original proprietor. Their defence was twofold; namely, first, that they had acquired title to this share by purchase; and, secondly, that the claim was barred by limitation. Upon the question of limitation, the Courts below have concurrently held against the plaintiffs. Upon the question of title, the Subordinate Judge has held that the defendants have failed to prove the alleged sale by Dinanath to his uncle Kishore. But he has not decided the question, whether the purchase by the plaintiffs from Nirupama is or is not bona fide, although he is of opinion that there are circumstances which throw great suspicion upon the transaction. On behalf of the plaintiffs, the decree of the Subordinate Judge has been assailed on two grounds; namely, first, that the question of the bona fides of their purchase from Nirupama does not arise in these proceedings; and, secondly, that the findings of the lower Appellate Court do not show that the title of their vendor was extinguished by adverse possession on the part of her co-sharers. In our opinion, both these contentions are well founded.
2. In so far as the first ground is concerned, the vendor of the plaintiffs is a party to this litigation. In her written statement she acknowledged the validity of her conveyance. She was examined in the lower Court; not only did she not repudiate the transaction, she explicitly supported the case of the plaintiffs. Under these circumstances, it is obvious upon the decision of their Lordships of the Judicial Committee in Achal Ram v. Kazim Husain Khan 32 I.A. 113 ; 27 A. 271 ; 9 C.W.N. 477 (P.C.) ; 8 O.C. 155 ; 15 M.L.J. 197 ; 8 Sar. P.C.J. 772 that the question of the validity of the sale cannot be raised by the other defendants. This position is in no way affected by the late decision in Basant Singh v. Mahabir Pershad 19 Ind. Cas. 340 ; 40 I.A. 86 (P.C.) ; 35 A. 273 ; 17 C.L.J. 566 ; 17 C.W.N. 669 ; (1913) ; M.W.N. 481 ; 11 A.L.J. 469 ; 15 Bom. L.R. 525 ; 16 O.C. 136 ; 14 M.L.T. 64 ; 25 M.L.J. 301.
3. In so far as the second ground is concerned, it has been argued on behalf of the respondents that Article 136 of the Second Schedule of the Limitation Act is applicable to this case. That Article provides that a suit by a purchaser at a private sale for possession of immoveable property sold, when the vendor was out of possession at the date of sale, must be commenced within 12 years from the time when the vendor is entitled to possession. It has been argued that the vendor of the plaintiff was not in possession at the date of the sale, because the Subordinate Judge has found that she did not enjoy the profits of the disputed property. The contention of the respondents in substance is that it is necessary for the plaintiffs to establish that their vendor was in actual occupation of the disputed property at the date of the sale. In our opinion, there is no foundation for this contention. The expression out of possession' as used in Article 136 implies that some person is in possession adversely to the vendors--some person holding in a character incompatible with the idea that the ownership remained vested in the vendor: Taylor v. Harde (1757) 2 Sm. L.C. 575 at p. 635 ; (12th Ed. p. 592) ; 1 Burr. 60 ; 97 E.R. 190 in the case before us, Nirupama was prima facie in possession of the tanks through her co-sharers; in other words, the possession of the joint owners was her possession in law. It is clearly incumbent upon the defendants to establish that the co-owners had set up a hostile title and had excluded her from possession. Of this there is no evidence. It has been found that on two occasions within the last 12 years, the defendants caught fish from the tanks and appropriated the same entirely for themselves. This does not constitute exclusion of the plaintiffs or their vendor, nor does this amount to adverse possession on the part of the defendants. It is not proved that the vendor of the plaintiffs claimed a share in the fish and that her title was repudiated. It is not shown that she over attempted to catch fish and was successfuly prevented. Stress is laid by the defendants-respondents on the circumstance that within 12 years before the commencement of the suit, they had exclusively received rent from a tenant on the bank of the tanks. This also does not in law amount to exclusion of the vendor of the plaintiff. The case before us is very similar to that of Bhogavalli Venkayya v. Bhogavalli Ramakrishnamma 9 Ind. Cas. 495 ; 9 M.L.T. 397 ; (1911) 2 M.W.N. 175. There the plaintiffs sued on the basis of a purchase from a co-sharer in the joint property, who, it was found, had left the village more than 40 years before suit. It was contended on behalf of the defendants that Article 136 was applicable, and that it was obligatory upon the plaintiffs to establish that their vendor had been in actual occupation within 12 years of the institution of the suit. This contention was negatived. It was held that the possession contemplated in Article 136 includes not merely actual possession but also such possession as a member of a joint family is presumed to have in the family property, until excluded therefrom. The learned Judges thereupon directed an inquiry into the question--Whether the vendor of the plaintiffs was ever excluded from the joint family property, and, if so, for what period before the suit. The Subordinate Court found upon the evidence that such exclusion had not been established and the result was that the plaintiffs succeeded. In the case before us, as already explained, there is no evidence on the record to show that the vendor of the plaintiffs had ever been excluded or that her title had been denied. We may add that it has been argued by the learned Vakil for the respondents that the question at issue is one of fact, and, that consequently it is not competent to this Court to interfere in second appeal. This contention is opposed to the decision of their Lordships of the Judicial Committee in the cases of Lachmeswar Singh v. Manowar Hossein 19 I.A. 48 (P.C.) ; 19 C. 253 ; 6 Sar. P.C.J. 133 ; 9 Ind. Dec. (N.S.) 614; Ramgopal v. Shamskhaton 19 I.A. 228 ; 20 C. 93 (P.C.) ; 6 Sar. P.C.J. 247 ; 17 Ind. Jur. 38 ; 10 Ind. Dec. (N.S.) 63. The question whether there has been such adverse possession on the part of the defendants as would extinguish the title of the vendor of the plaintiffs is a mixed question of fact and law. Whether the defendants did act in a particular manner is a question of fact, but when the Court is called upon to decide the true legal effect of that act upon the title of the plaintiffs, the Court has plainly to determine a question of law. As already stated, upon the facts found, it is plain that the title of the vendor of the plaintiffs was not extinguished by adverse possession on the part of the defendants or their predecessors-in-interest.
4.The result is that this appeal is allowed, the decrees of the Courts below discharged and the suit decreed with costs in all the Courts.