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Biswanath Chakravarti Vs. Rabija Khatun and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1929Cal250,117Ind.Cas.593
AppellantBiswanath Chakravarti
RespondentRabija Khatun and ors.
Cases ReferredBhivrao v. Rukhmin
Excerpt:
- .....this view reoeives indirect support from the casa of bhivrao v. rukmin [1899] 23 bom. 137 (f.b.). adverse possession depends open the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested whether in a single parson or in many jointly. adverse possession is possession by a person holding the land on his own behalf or on behalf of some person other than the true owner. see the observations of markby, j., in the case of bejoy chunder bannerjee v. kali prosonna mukherji [1879] 4 cal. 327. although the possession of the defendant was not adverse to that of khadim ali it became advsrse to the plaintiff for it was possession on behalf of some person other than the true owner.3. the ownership had passed on the date of.....
Judgment:

Mitter, J.

1. The only question argued in this appeal is the question of limitation. The plaintiff, now appellant, purchased in execution of a money decree against Khadim Ali the laud in suit on 8th December 1909. The sale was made absolute on 14th January 1910 and symbolical possession was taken on 2nd March 1913. The defendants, now respondents were cosharers with Khadim Ali in the disputed land. They contend that the present suit is barred by limitation as it was not instituted within 12 years from the date of sale. The Munsif held that there was no allegation in the plaint that Khadim Ali was in possession of the disputed land jointly with the defendants and found the iasue of limitation against the plaintiff and dismissed his suit. On appeal the learned District Judge of Chittagong held that time should begin to run from the date of the sale and not from the date of delivery of symbolical possession as was conttended for by the plaintiff. The learned District Judge dismissed the appeal. Article 138, Schedule 1 to the Limitati on Act cannot govern the present case as the article applies only against judgment-debtors and persons claiming through them. The defendants in the present case do not claim through the judgment debtor Khadem Ali, so Article 138 does not apply. Article 144 which is the residuary article applies and the question arises as to when the possession of the defendants became adverse to that of the plaintiff. It is argued by the learned vakil for the appellant that as the possession of the defendants was possession on behalf of their cosharer Khadim Ali at its inception it did not become adverse till the plaintiff who had stepped into the shoes of Khadim Ali was resisted in obtaining actual possession. In other words it is said that the possession became adverse from the date of the delivery of symbolical possession.

2. In my opinion this contention is not sound for the same rights and privileges which a cosharer has as against his other cosharers are not enjoyed by his assignee. It is true that in the case of a cosharer the possession of one cosharer is the possession of all and that if one of them sets. up a prescriptive title against the others he must prove that his possession was openly hostile but it is diffieult to understand how an assignee can by mere fact of assignment become a cosharer if his rights are denied by the other cosharers. It is beyond controversy that if the assignor has not transferred possession of the property assigned to his assignee the latter in order to succeed in a suit for possession must sue within 12 years from the date of his assignment and that a suit against his assignor would ba barred if ha comes into Court after that period. It would seem logieally to follow from this position that the claim which would be barred against the assignor would also be barred against the other cosharer for otherwise an absurd position would be created. It would indeed be absurd to hold that a claim which would obviously be barred against the assignor would not be barred if brought against the other cosharers who do not even recognize the right of the assignor to assign in favour of a third party. This view reoeives indirect support from the casa of Bhivrao v. Rukmin [1899] 23 Bom. 137 (F.B.). Adverse possession depends open the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested whether in a single parson or in many jointly. Adverse possession is possession by a person holding the land on his own behalf or on behalf of some person other than the true owner. See the observations of Markby, J., in the case of Bejoy Chunder Bannerjee v. Kali Prosonna Mukherji [1879] 4 Cal. 327. Although the possession of the defendant was not adverse to that of Khadim Ali it became advsrse to the plaintiff for it was possession on behalf of some person other than the true owner.

3. The ownership had passed on the date of the sale from Khadim Ali to the plaintiff and defendants' possession was adverse possession to that of the plaintiff from the date of the sale, for even if he was holding possession for Khadim Ali, ha was holding possession on behalf of some person other than the true owner for Khadim Ali's right had been extinguished by the sala either from the date of the sale or from the date when the sale became absolute both of which happened more than 12 years before suit.

4. No doubt it is true that cosharers in possession do not exclude each other and that possession of oosharers is not adverse to the other cosharers. But an alienee of a cosharer is not a cosharer. He is a stranger and he does exclude the others and his possession is adverse : see Lakshman v. Moru [1892] 16 Bom. 722. Although the present ease is the converse of the Bombay case, just referred to, the same principle applies for the reasons which I have already given. For the reasons given above the appeal fails and must be dismissed with costs.

5. Leave has been asked for and is granted, I consider that it is a fit case for appeal.

Mukerji, J.

6. The suit out of which this appeal has arisen relates to seven plots of land. The plaintiff's allegation was that out of these seven plots, plot 1 belonged to one Neamat Ali and defendaut 1 in equal shares and plots 2 to 7 belonged to one Khadem Ali and defendant 1 also in equal shares. His case further was that he had purchased the shares of Neamat Ali and Khadem Ali in execution of a decree for money against them on 8th December 1909, and took delivery of possession against those persons through Court on 2nd March 1913, and when he went to take actual possession Neamat Ali and Khadem Ali went away, but defendant 1 in collusion with some other persons including the defendants 2 to 4 opposed him. He alleged further that the defendants had made certain excavations in and were about to do further damage to the lands. The suit was instituted on 27th February 1923 with prayers for declaration of title, joint possession with defendant 1 and injunction.

7. The defendants denied the plaintiffs title and raised some dispute as to the extent of their own title as amongst themselves.

8. The Munsif held that the plaintiff had failed to make out that Neamat Ali had any title to plot 1, or that Khadem Ali had any title to plot 7 He held that Khadem Ali and defendant 1 were cosharers in respect of plots 2 to 6. He was able to find the extent of Khadem Ali's share in only two out of these five plots, that is to say, in plots 2 and 6, and he found that share as 1/7th. As regards plots 3, 4 and 5 he was unable to find the extent of Khadem Ali's share. He held that the plaintiff had made out his title to plots 2 to 6 and to the shares mentioned above. He, however, dismissed the suit as in his opinion Article 138, Schedule 1, Lim. Act applied and the suit had not been instituted within 12 years from. 14th January 1910, the date of confirmation of the sale at which the plaintiff had made his purchase. He did not arrive at any finding as regards the extent of the shares, if any, of the different defendants. The plaintiff appealed to the District Judge who affirmed the Munsif's view on the question of limitation and held further that even if Article 144 applied the same result would follow.

9. The plaintiff then appealed to this-Court. My learned brother Mitior, J.,. held that Article 144 applies to the case. Applying that article he held that, as by the sale the title of Khadem Ali was extinguished, the possession of the cosharers of Khadem Ali became from that point of time adverse to the plaintiff who had by the said sale become the true owner, and such adverse possession having continued for over twelve years the suit was barred under Article 144. The suit, it may be said, was instituted beyond twelve years from 8th December 1909 which was the date of the sale and also beyond the like period from 14th January 1910, which was the date of its confirmation. Mitter, J., accordingly dismissed the appeal and from his deeision the plaintiff has preferred this appeal under Letters Patent.

10. I have examined the evidence in the case and I may state here that if it is to be determined as a question of fact when the defendants' possession became adverse to the plaintiff the question has to be decided in only one way, namely, by holding that such adverse possession commenced only after the plaintiff went upon the land after obtaining posseseion against the judgment-debtor Khadem Ali through Court on 2nd March 1913. It will have to be seen, however, whether 'upon any principle of law the possession of Khadem Ali's cosharers became adverse to the plaintiff from and by reason of the sale itself.

11. Now, to constitute a tenancy-in-common, there must be an equal right to the possession of every part and parcel of the subject matter of the tenancy ; joint possession is not necessary, unity of right of possession being all that is required. 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 the acts of one co-tenant as being in subordination of the title of all the cotenants, 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. In Freeman on Co-tenancy and Partition, 2nd Edition, Section 167, the following illustration appears:

It A and B together own (personal) property of which A is in actual possession, and B sells his moiety to C, the possession of A (immediately becomes the possession of C also.

12. My learned brother Mitter, J., has referred to certain cases to which it is necessary to advert in order to see whether they in any way militate against the aforementioned view. In one of these cases, Bejoy Chunder Bannerjee v. Kally Prosonna Mukherji [1879] 4 Cal. 327, Markby, J., said:

By adverse possession I understand to be meant possession by a person holding the land on his behalf or of some person other than the true owner, the true owner having the right to immediate possession.

But with the extinguishment of the right to possess the unity of the right to possession ceases, and as soon as the title passes to the purchaser, it is the latter in whom vests the right to possession, and the purchaser becomes a tenant-in-common with the vendor's co-tenants. It would be a fundamental misconception to think that one co-tenant in the absence of any thing to the contrary is, in any sense, in control or possession of the share of his co-tenants. The case of Lahshman v. Moru [1892] 16 Bom. 722, explains what is meant by 'adverse possession,' but does not profess to touch the present question. The case of Bhivrao v. Rukhmin [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 plots of lands 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 co-sharer, and being in such possession for over twelve years was able to defeat under Article 144 the title of the coparceners of the vendors or mortgagors.

13. With all deference, I am of opinion that the view taken by my learned brother Mitter, J., is not correct. I would accordingly allow the appeal and setting aside the decisions of all the Courts below direct a decree to be entered in plaintiff's favour declaring his right by purchase and awarding him joint possession with the defendants in plots 2 to 6 mentioned in the plaint, the share of the plaintiff being 1/7th in plots 2 and 6, and the extent of his share in plots 3, 4 and 5 not being determined. The other reliefs asked for by the plaintiffs in respect of these plots should, be refused as there are no materials on which they may be granted. The suit in respect of plots 1 and 7 should be dismissed in toto. The plaintiff will get half his costs in all the Courts.

Rankin, C.J.

14. I agree.


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