B.K. Mukherjea, J.
1. This is an appeal on behalf of the plaintiffs and it arises out of a suit for partition. The plaintiffs' case is that the properties in suit with the exception of plots 13 and 14 in village Warup belonged to one Kadir Sarkar who was the common ancestor of the plaintiffs and defendants 1 to 4. The two plots 13 and 14 were acquired with the profits of those properties after the death of Kadir. Kadir died in the year 1892 leaving a wife. Pearjan, three sons and three daughters born of her and another son named Jaha Bux, born of a predeceased wife. Plaintiffs 1 to 10 claimed their title through these three daughters of Kadir and plaintiffs 11 to 15 are the descendants and heirs of one of the son of Kadir, named Aserabali, whereas plaintiffs 16 to 18 are the heirs of Jaha Bux, the son of Kadir by his first wife. Defendant 1 is Elim Ali, the only son of Kadir who is still living, and defendants 2 to 4 are the heirs and successor of Abbas. Ail, the remaining son. Defendants 5 to 7 purported to have acquired the interest in the suit properties by reason of their purchase at a sale in execution of a money decree obtained against defendants 1 to 4. The plaintiffs' case is that they were in posses, sion of this property jointly with defendants 1 to 4 and joint possession being found inconvenient they now claim their shares according to Mahomedan law.
2. The suit was contested primarily by defendant 7 and his case was that with the exception of plots 8 and 9 of Schedule 2, the rest of the properties did not belong to Kadir but were acquired by his three sons, Elim, Abbes and Aserab, either jointly or severally. It is said that Aserabali made a gift of his shares in the properties to his two daughters and the daughters in their turn sold them to their uncles Elim and Abbes. The interest of these persons were put up to sale in execution of a mortgage decree and was purchased by defendants 5 to 7. The trial Court on a consideration of the evidence came to the conclusion that plots Nos. 1 to 12 of village Warup and plot No. 1 of village Shibpur were the properties left by Kadir. With regard to the rest, the finding was that the plaintiffs failed to show that they had any interest in them. The trial Court gave the plaintiffs a preliminary decree in respect of these thirteen items of property and directed that a commissioner should be appointed to make the partition in accordance with the shares set out in the plaint.
3. Against this decision there was an appeal taken to the lower Appellate Court and the lower Appellate Court has reversed the decision of the trial Judge and has dismissed the plaintiffs' suit. The learned District Judge did not dispute the finding of the Subordinate Judge that the thirteen items of property with regard to which a decree was given by the latter were the properties of Kadir. He held however that Kadir's interest in these properties was sold in execution of a money decree in the year 1886 and it was purchased by one Wajuddi. did not take possession of those properties and Kadir remained in occupation of these lands till his death in the year 1892. The learned Judge was of opinion that as Kadir's possession was merely of a wrong-doer and he had not acquired any title to these properties by adverse possession continued for a period of twelve years, he had no interest in the property which could devolve upon his heirs on his death and although after his death the possession was continued by his three sons, their possession was on their account as independent trespassers and they themselves acquired a good title to the property to the exclusion of the other heirs of Kadir. In this view of the case the Court was of opinion that neither the daughters nor Jaha Bux acquired any title to the properties in suit. It is against this decision that the present second appeal has been preferred.
4. It seems to me that in coming to his decision the learned Judge misdirected [himself on a question of law. The possession of a wrongdoer held for a term less than the period of limitation is a good title against the whole world with the exception of the true owner. This possessory right even though it has not ripened into ownership by lapse of the statutory period, is a right in immovable property which is heritable and transmissible according to law vide Asher v. white lock (1866) 1 Q.B. 1 Gosswain Dass Chunder v. lssur Chunder Nath (1878) 3 Cal. 224 Mt. Ram piari v. Budh Sen (1921) 8 A.I.R. All. 389. On the death of Kadir therefore whatever right he had in the property did devolve upon all his heirs, and the possession that was continued by some of his heirs would be regarded as possession on behalf of the whole unless and until it was shown that there was an exclusion or ouster of the other cosharers. In this case the trial Judge came to the conclusion that the possession of the three sons of Kadir was not in any way adverse to his other heirs. The question of ouster has not been considered by the District Judge, who was of opinion that the possession of the three brothers was that of independent trespassers and consequently on their own account. It is true that the lower Appellate Court has referred to certain acts of possession which were exercised by these three sons of Kadir and they might show that they were enjoying the properties exclusively but nevertheless mere exclusive possession by a cosharer is not sufficient to extinguish the rights of the other cosharers unless and until definite ouster is found. I think that the lower Appellate Court has not considered the case from that aspect at all. In these circumstances the decree of the lower Appellate Court should be set aside and case should be sent back to that Court in order that the appeal should be reheard in the light of the observations made above.
5. The Court below will proceed on the footing that all the heirs of Kadir succeeded to his possessory right after the death of the latter, and it will decide on evidence as to whether the three sons were possessing the property to the exclusion of other cosharers on assertion of a hostile title. If such adverse possession is proved, the order of dismissal passed by the lower Appellate Court will stand except with regard to plots 8 and 9 of Schedule 2, which are not claimed by defendants 5 to 7. The plaintiffs in that case would have a decree in respect of these plots only. If, on the other hand, no ouster or exclusion is found, the plaintiffs would be entitled to a decree as passed by the trial Court. The appeal is thus allowed and the case is remanded. There will be no order as to costs in this appeal. Future costs will abide the result.
Latifur Rahman, J.
6. I agree.