1. A preliminary objection has been taken to the hearing of this appeal on the ground that respondent No. 3 died on the 18th December 1905, that an application was made to substitute his legal representatives on the 3rd May 1906, that the substituted respondent died on the 16th May 1906, and that his legal representative was not brought on the record till the 3rd December 1906. The Court below has, however, found that the appellants did not become aware of the death of the substituted respondent within six months from the time of his death. We must consequently overrule the objection that the representative of respondent No. 3 has not been brought on the record within time. It has next been argued that respondent No. 2 died on the 20th December 1906, that on the 11th June 1907 an application for substitution was made in which it was stated that his infant son was his legal representative, that subsequently another application was made in which it was stated that child born was not a boy but a daughter and that, therefore, the legal representative of the deceased was the widow who was thus not brought on the record till the 10th August 1907. Under the circumstances, we are satisfied that the delay was due to bona fide mistake, and that the legal representative of respondent No. 2 must be treated as brought on the record within time. The preliminary objection fails and the appeal, therefore, must be heard on the merits.
2. The subject matter of the litigation consists of five parcels of land. Of these the first is homestead land, the second, waste land, the third and fourth, tanks, and the fifth, a silted up bed of a tank which is apparently of no use. The plaintiffs claimed exclusive title to the first parcel and a third share in the other parcels. The defendants denied their title and alleged that even if they had at any time any title to the parcels, their right had been extinguished by limitation. The Court of First Instance found, upon the question of title in favour of the plaintiffs, and held upon the question of limitation, that the plaintiffs were in possession of all the plots within twelve years of the suit alleged by them. In this view of the matter, the Munsiff gave the plaintiffs a decree in full as prayed. Upon appeal by the defendants, the Subordinate Judge has held that the claim of the plaintiffs as regards the first plot is barred by limitation. As regards the other four plots, ho has found that inasmuch as the parties were co-owners and the alleged acts of possession of the defendants were of a character which would not enable the plaintiffs to infer that they had set up a hostile right in disclaimer of their title and ownership, the plaintiffs were entitled to succeed. He accordingly allowed the appeal in part, and dismissed the claim as regards the first plot and affirmed the decree of the first Court as regards the remainder.
3. The defendants have now appealed to this Court on the ground that the view taken by the Subordinate Judge is erroneous and that as the plaintiffs came to Court upon the allegation of previous possession and dispossession, the case is governed by Article 142, Schedule II of the Limitation Act. In our opinion there is no foundation for this contention. As regards the second and fifth plots it is quite clear upon the facts found, that whether Article 142 or Article 144 be held to apply, the plaintiffs are in time. These plots have been found to be waste and unfit for use; the presumption of law, therefore, is that possession is with the rightful owner and upon the authority of one of the cases upon which reliance was placed by the learned Vakil for the appellants, namely, the decision of a Full Bench of this Court in the case of Mohamed Ali Khan v. Khoja Abdul Gunny 9 C.744, the plaintiffs would clearly be entitled to succeed as regards these two parcels of waste land. As regards the remaining two parcels, namely, the two tanks, we are of opinion, that the view taken by the Subordinate Judge is correct. The learned Vakil for the appellant contended that if there was no dispossession there was at least discontinuance of possession on the part of the plaintiffs. This argument is obviously fallacious. The plaintiffs and defendants are co-owners and prima facie, the possession of one co-owner is on behalf of all. The mere fact, therefore, that the plaintiffs are unable to show that they exercised any overt act of ownership over these two parcels within 12 years before suit does not justify the inference that there has been a discontinuance of their possession. They are entitled to rely upon the possession of their co-owners as their possession, till such, time as the possession of the co-owners became hostile to them. The principle applicable to cases of this description was fully explained in the decision of this Court in Jogendra Nath Rai v. Baladeo Das 35 C. 961. As was observed in that case the law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession lawful, the commencement and continuance of which is not proved to be wrongful, and this upon the plain principle that every man shall be presumed to act in obedience to his, duty until the contrary appears. Consequently whereas the possession of a stranger is prima facie hostile, the possession of a co-owner is not necessarily an act of disseisin. The learned Vakil for the appellants, however, argued that the act of possession in this particular case ought, to be construed as hostile to the plaintiffs. He pointed out that his clients had taken exclusive possession of the first parcel which was homestead land and contended that that circumstance alone ought to have been treated as sufficient notice to the plaintiffs, that possession, of the defendants in respect of the other parcels which were joint property was assumed under a similar hostile intention. In our opinion, this contention also is fallacious. There is nothing to show that all the parcels formed one property; the mere fact, therefore, that the defendants dispossessed the plaintiffs of the first parcel would not justify the inference that the acts of possession which they exercised over the parcels ought to be attributed to their character, not of co-owners but of trespassers. There is besides an important circumstance which shows that there was no discontinuance of possession on the part of the plaintiffs. The learned Munsiff has found that the plaintiffs had 4 bighas of land in the village of which they have continued in possession. This finding has not been expressly confirmed by the Subordinate Judge but at the same time there is nothing to show that the finding was challenged on behalf of the present appellants before the lower Appellate Court. Now this fact shows that there was no intention on the part of the plaintiffs to abandon the village as was suggested by the learned Vakil for the appellants and if they continued to be residents of the village, the inference does not by any means follow that they intended to abandon the four parcels which they held jointly with the defendants.
4. For these reasons we must hold that the view taken by the Subordinate Judge is correct and cannot be successfully challenged in second appeal. The appeal fails and must be dismissed with costs.