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Mahammed Wasel Ali and anr. Vs. NainuddIn Mandal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in91Ind.Cas.614
AppellantMahammed Wasel Ali and anr.
RespondentNainuddIn Mandal and ors.
Excerpt:
co-sharers - adverse possession--ouster--rent, receipt of, absence of, effect of. - .....second appeal no. 1213. they were the plaintiffs in the trial court and the defendants were, the heirs of ajim who are the respondents in both the appeals. both the courts have found the question of title in favour of the plaintiffs. the trial court made a decree in their favour and ordered joint possession according to their share of the lands with the defendants. on appeal by the defendants, the learned subordinate judge has dismissed both the suits on the ground that the plaintiffs failed to show possession of a permissive character of the defendants or their own possession within 12 years of, the date of the suit. he applied article 142 of the limitation act and dismissed the suit on the ground of limitation. the plain tiffs' allegation was that torap and kolom used to work away.....
Judgment:

B.B. Ghose, J.

1. These two appeals arise out of two suits for possession of certain shares of a tenancy. The original-owner of the lands was one Jamal lie left three sons, Torap, Kolom and Ajim. The appellants in Second Appeal No. 1212 are the heirs of Torap and the heirs of Kolom are the appellants in Second Appeal No. 1213. They were the plaintiffs in the Trial Court and the defendants were, the heirs of Ajim who are the respondents in both the appeals. Both the Courts have found the question of title in favour of the plaintiffs. The Trial Court made a decree in their favour and ordered joint possession according to their share of the lands with the defendants. On appeal by the defendants, the learned Subordinate Judge has dismissed both the suits on the ground that the plaintiffs failed to show possession of a permissive character of the defendants or their own possession within 12 years of, the date of the suit. He applied Article 142 of the Limitation Act and dismissed the suit on the ground of limitation. The plain tiffs' allegation was that Torap and Kolom used to work away from home and they had settled their shares in Barga with their brother Ajim and were in enjoyment of their shares by receipt of Barga rent. This they failed to establish. The defendants case was that there was a partition between the brothers during the lifetime of their father and the disputed lands were in the sole possession of Ajinx as falling to his shaire. That case was also found by the Courts below to be not true. The position, therefore, is this, that ail the three brothers had title in the property in suit as co-sharers and in order to bar the title of any of the co-sharers by reason of the exclusive possession of one of them it must be found that there was an ouster. There is no such finding in this case and the only case that was made by the defendants as regards their separate title has been found against them. The fact that the plaintiffs had not been able to prove their actual possession by receipt of Barga rent cannot operate to extinguish their title on the ground of adverse possession by their co-sharers. In the absence of any finding that there was an ouster of any allegation which would amount to an ouster of their co-sharers by the defendants the plaintiffs are entitled to succeed.

2. The judgment and decree, therefore, of the learned Subordinate Judge must be set aside and those of the learned Munsif restored with costs against the contending defendants in this Court and in the Court below.

Greaves, J.

3. I agree.


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