Asutosh Mookerjee, Actg. C.J.
1. This is an appeal by the plaintiffs in a suit for recovery of possession of land on declaration of title. The land belonged to one Bhagirath Majhi, who left four sons, Gangadhar, Baikuntha, Lakhan and Jharu, Baikuntha and Jharu left the ancestral home and went to reside in a different village. The plaintiffs claim title by purchase from the representatives of Baikuntha and Jharu. The defendant' claim title by purchase from the representatives of the other two brothers. The substantial question in controversy between the parties is, whether the title of Baikuntha and Jharu was extinguished by adverse possession on behalf of their brothers. The Court of first instance found that adverse possession had not been established, and decreed the suit. The Subordinate Judge has taken a different view, and has dismissed the suit. The Subordinate Judge has found that Baikuntha and Jharu removed to another village; that the predecessors-in-interest of the plaintiffs were not in possession for 50 years; that during this period the property was possessed by the co-owners; that the predecessors-in-interest of the defendants have alone paid rent to the superior landlord, and have dealt with the property as their own since at least 1878. The appellants have contended that, assuming that these facts have been correctly found, they do not show that the title of the predecessor of the plaintiffs was extinguished by adverse possession on the part of their co-owners.
2. It is plain from the judgment of the Subordinate Judge that he has not kept in view the principles applicable to cases of this character, which must now be deemed to be well settled and beyond controversy. The question has been considered by the Judicial Committee in three recent cases, namely, Corea v. Appuhamy (1912) A.C. 230 at p. 236 : 81 L.J.P.C. 151 : 105 L.T. 836. Muttunayagam v. Brito (1918) A.C. 865 : 87 L.J.P.C. 146 and Hardit Singh v. Gurmukh Singh (1). In the first of these cases Corea v. Appuhamy (1912) A.C. 230 at p. 236 : 81 L.J.P.C. 151 : 105 L.T. 836. Lord Macnaghten cited with approval the dictum of Vice-Chancellor Page Wood in Thomas v. Thomas (1855) 2 K. & J. 70 at p. 83 : 25 L.J. Ch. 159 : 1 Jur. (N.S.) 1160 : 4 W.R. 136 : 69 E.R. 701 : 110 R.R. 107, namely, that possession is never considered adverse if it can be referred to a lawful title, and held that possession of one so parcener could not be held prima facie as. adverse to other co-parcners. Lord Macnaghten, however, added that in former times, before the Statute of William IV when the justice of the case seemed to require it, Juries were sometimes directed that they might presume an ouster. This is borne out by the judgment of Lord Denman, C.J., in Culley v. Doe d. Taylerson (1840) 11 A. & E. 1008 at p. 1014 : 3 P. & D. 539 : 9 L.J. (N.S.) Q.B. 288 : 52 R.R. 566 : 113 E.R. 697 where we find the following observations: 'Generally speaking, one tenant-in-common cannot maintain an ejectment against another tenant-in-common, because the possession of one tenant-in-common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant-in-common, has not been in the participation of the rents and profits for a considerable length of time and other circumstances concur, the Judge will direct the Jury to take into consideration whether they will presume that there has been an ouster; as to which seethe cases of Deo d. Fisher v. Plotter (1774) 1 Cowper 217 : 98 E.R. 1052, Deo d. Hellings v. Bird (1809) 11 East 49 : 103 E.R. 922 and Doe d. White v. Cuff (1808) 1 Camp. 173.' The same view was taken by Lord Dunedin in Muttunayagam v. Brito (1918) A.C. 865 : 87 L.J.P.C. 146 and by Lord Buckmaster in Hardit Singh v. Gurmukh Singh 47 Ind. Cas. 626 : 28 C.L.J. 437 : 58 P.W.R. 1918 : 64 P.R. 1918 : 24 M.L.T. 389 : 20 Bom. L.R. 1064 : (1919) M.W.N. 1 : 9 L.W. 123 : 1 U.P.L.R. (P.C.) 8 (P.C.). Among the cases in this Court, reference may be made to the decisions in Jogendra Nath Dey v. Baladeo Das 35 C. 961 : 12 C.W.N. 127 : 6 C.L.J. 735. Ayennessa Bibi v. Sheikh Isuf 14 Ind. Cas. 722 : 16 C.W.N. 849, Lokenath Singh v. Dhwakeshwar Prosad Narayan Singh 27 Ind. Cas. 465 : 20 C.W.N. 51 : 21 C.L.J. 253 and Jatendra Nath Roy v. Sabidannessa Khatun Narendra Bhusan Roy v. Jogendra Nath Roy 35 Ind. Cas. 36 : 20 C.W.N. 125 : 24 C.L.J. 165. In the words of the judgment in the first of these case, the principle may be stated in the following terms. The fundamental rule is that the entry and possession of land under the common title of one co-owner will not no presumed to be adverse to the others, but will ordinarily be held to be for the benefit of all The obvious reason for this rule is that the possession of one co owner is, in itself, rightful and does not a imply hostility, as would the possession at of a mere stranger. The law will ever construe a possession tortious, unless from rd necessity on the other hand, it will consider every possession lawful, the commencement and continuance of which is not to proved to be wrongful; and this upon the plain principle, that every man shall be is presumed to act in obedience to his duty, until the contrary appears. In other words the only difference between the possession of a co owner and other cases, is, that acts, which if done by a stranger, would per se be a disseisin, are, in the case of tenancies-in-common, succeptible of explanation consistently with the real title; acts of ownership are not, in tenancies in common acts of disseisin; it depends upon the intent with which they are done and their notoriety: the law will not presume that one tenant in common intends to oust another the facts must be notorious and the intent must be established in proof. Now, if we apply these principles to the case before us, what is the position stress is laid on the fact that the predecessors of the plaintiffs left the village fifty years ago, and that the property was thereafter in the occupation of their brothers. There is, however, nothing to indicate that their possession of the entire property was in its inception unlawful. On the other hand, the presumption is that the co-owners possessed the entire property in their character as co-owners as they were entitled to do, when the co-tenants were in another pi ace. It is next urged that these co-owners who were in enjoyment of the entire profits alone, paid rent to the superior landlord. The obvious answer is that the rent to the superior landlord would have to be paid in any event, as otherwise the tenancy would be sold; and, it may be presumed that, when the entire rent was paid by the persons who tools the whole profits, they only did what might be expected from them in the circumstances. It is then said that the absent co-tenants did not put forward any special claim when succession took place by reason of death in the family, But this is conduct which admits of an obvious explanation; the persons who were in possession as co-owners would be entitled to continue in possession as co-owners, notwithstanding the death of one or ciber of the co-tenants. Finally, it is contended that one of the co-owners has dealt with the land as his own since 1878. This statement is of a somewhat sweeping character. On examination, it appears that on the 18th March 1873 this no-owner transferred the entire lands or only a portion thereof (this is a point upon which the two parties are not here agreed) to his infant nephew. Whether this was a real transaction, or not, may be a matter of doubt; the Court of first instance was inclined to the view that this was a fictitious transaction. The infant, on attainment of age, on the 23rd December 1902, transferred the property to one Kunja Biswas (the second defendant), who, on the 23rd March 1908, transferred it to the first defendant, Shyama Charan Mondal. The Trial Court expressed the opinion that these frequent transfers were calculated to create considerable suspicion about the reality of possession of the successive transferees. The question thus arises, whether the conveyance of the 18th March 1878 can be treated as an act of ouster of the predecessor of the plaintiffs. We are not prepared to hold that the mere execution of the conveyance was an act of such notoriety as to impress on the predecessors of the plaintiffs that their co- sharers who lived in the village and occupied the joint property intended to set up a hostile title against them, in our opinion, it is impossible to hold, on the facts found, that the title of the predecessors of the plaintiffs was extinguished by adverse possession, on the part of their co-owners.
3. It has been contended on behalf of the respondents, as a last resort, that this a matter with which we are not competent to deal in second appeal. It is plain, however, from the decision of the Judicial Committee in the case of Lachmeswar Singh v. Manowar Hossin 19 I.A. 48 : 19 C. 253 : 6 Sar. P.C.J. 133 : 19 Ind. Dec. (N.S.) 614 that the question of adverse possession which we have to determine is a mixed question of fact and law. In respect of the facts found by the lower Appellate Court, which is the final Court competent to deal with facts, we are bound to accept them as conclusive. But when we are called upon to consider whether, from the facts found, an inference can fairly be drawn that the possession was adverse, it is a question of law which we are entitled to investigate. The facts found need not be questioned; it is the soundness of the conclusion from them that is in question, and this is a matter of law see also Ramgopal v. Shamskhaton 19 I.A. 228 : 20 C. 93 : 6 Sar. P.C.J. 247 : 17 Ind. Jur. 38 : 10 Ind. Dec. (N.S.) 63 Satgur Prasad v. Raj Kishore Lal 55 Ind. Cas. 486 : 42 A. 152 : 11 L.W. 384 : (1920) M.W.N. 3 : 24 C.W.N. 394 : 38 M.L.J. 259 : 18 A.L.J. 235 : 2 U.P.L.R. (P.C.) 55 : 22 Bom. L.R. 45 : 46 I.A. 197 : 27 M.L.T. 200 (P.C.), Ishan Chunder v. Bishu Sirdar 24 C. 825 : 1 C.W.N. 665 : 12 Ind. Dec. (N.S.) 1217, Rajaram v. Ganesh Sahu 21 B. 91 : 11 Ind. Dec. (N.S.) 63, Rajah Makund Deb v. Gopi Nath Sahu 25 Ind Cas. 286 : 21 C.L.J. 45, Maruti v. Banubai 4 Bom. L.R. 891 at p. 808, Venkatesh v. Bhavanishankar 5 Bom. L.R. 174 Rajaram Tuharam v. Nanchand Tuljaram 5 Bom. L.R. 225, Pandurang v. Anant 5 Bom. L.R. 956 at p. 963, Ganapati Ambadas v. Raghunath Anant 4 Ind. Cas. 244 : 11 Bom. L.R. 1087 : 33 B. 712.
4. The result is, that this appeal is allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored with costs in all the Courts.
5. I agree.