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Jogendra Nath Mukherjee Vs. Rajendra Nath Bhattacharjee - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in68Ind.Cas.200a
AppellantJogendra Nath Mukherjee
RespondentRajendra Nath Bhattacharjee
Cases Referred and Joynarain Sen v. Suchitra Debya
Excerpt:
co-sharers - suit for partition-limitation--possession of one co-sharer, when adverse to the others--exclusion and ouster--knowledge--adverse possession a mixed question of law and fact--appeal, second. - .....in 19(sic)7, and the defendant pleaded that the claim was barred by limitation by reason of adverse possession on his part for 12 years.4. the court of first instance was of opinion that the possession of the defendant was not adverse to haridhan and that the claim of the plaintiff, therefore, was not barred by limitation.5. on appeal, the learned subordinate judge held that the possession was adverse and that his claim was barred by limitation.6. the plaintiff has appealed to this court.7. it is contended that the facts found do not amount to an ouster by a co-sharer.8. on behalf of the respondent it is contended that the question of adverse possession is a question of fact and that the finding of the lower appellate court on the point cannot be considered by this court in second.....
Judgment:

1. This appeal arises out of a suit for partition of a house described as the salarbari which originally belonged to one Haridhan and his co-sharer.

2. The plaintiff purchased the 4 annas share, which belonged to Haridhan, on the 26th April 1916, the defendant having purchased the remaining shares so far bask as 19th November 1901 from the other co-sharers. After his purchase, the defendant blocked up the sadar door of the sadarbari.

3. The plaintiff brought the suit for partition in 19(sic)7, and the defendant pleaded that the claim was barred by limitation by reason of adverse possession on his part for 12 years.

4. The Court of first instance was of opinion that the possession of the defendant was not adverse to Haridhan and that the claim of the plaintiff, therefore, was not barred by limitation.

5. On appeal, the learned Subordinate Judge held that the possession was adverse and that his claim was barred by limitation.

6. The plaintiff has appealed to this Court.

7. It is contended that the facts found do not amount to an ouster by a co-sharer.

8. On behalf of the respondent it is contended that the question of adverse possession is a question of fact and that the finding of the lower Appellate Court on the point cannot be considered by this Court in second appeal.

9. The question of adverse possession, however, is a mixed question of fact and law. The fasts found by the Judge mast, of course, be accepted, but the conclusion drawn from them, namely, whether the possession was ad versa or not, is a question of law and can be considered by this Court see the cases of Lachmeswar Singh v. Manowar Ho(sic)sain 19 C. 253 at p. 262 : 19 I. A. 48 : 6 Sar. P. C. J. 133 : 10 Ind. Dec. (N. S.) 614 (P. C);. Ramgopal v. Shamskhatun 20 C. 98 at p 89. 19 I. A. 228 : 6 Sar. P. C. J. 247 : 17 Ind. Jur. 88 : 10 Ind. Dec. (N. S.) 64 (P. C.).; Chintamoni Pramanik v. Hriday Nath 50 Ind. Cas. 123 : 29 C. L. J. 241 at p 245. and Balaram Guria v. Syama Charan Mondal 60 Ind. Cas. 298 : 38 C. L. J. 314 at p. 348 : 24 C. W. N. (sic)

10. With regard to the question of limitation, the learned Subordinate Judge, as stated above, found that the defendant was in adverse possession since he blocked the entrance to the sadarbari. There is no doubt that Haridhan was a co-sharer and in order to prove dispossession of one co-sharer by another, it must be shown that there was exclusion or ouster to the knowledge of the former.

11. It is contended by the learned Pleader for the respondent that the principle cannot apply to a stranger who is not a member of the family and we are referred to the case of Ram Lakhi v. Durga Gharan Sen 11 C. 680 : 5 Ind. Dec. (N. S.) 1212.

12. The question there was whether a person who had purchased a property from a member of a joint Hindu family was entitled to the benefit of Article 127 of the Limitation Act, and it was answered in the negative. One of the Judges, Garth, C. J., held that Article. 136 would apply to the case, while the other Judge, Ghose, J., held that Article 144 was the Article applicable.

13. The question of adverse possession as between so sharers, however, does not appear to have been considered in that case.

14. We have also been referred to the case of Varada Pill(sic) i v. Jeevarathnammal 53 Ind. Cas. 901 : 46 L. A. 285 : (1919) M. W. N. 721 : 10 L. W. 679 : 24 C. W. N. 346 : 38 M. L. J. 313 : 18 A. L. J. 274 : 2 U. P. L. Rule (P. C.) 64 : 22 Bom. L. Rule 445 : 43 M. 244 (P. C.), where the Judicial Committee, referring to the rule that the possession of one of several joint tenants or tenants-in-common is not adverse to the others so as to prevent the Statutes of Limitation from affecting them, 'observed: 'Whether the rule is applicable to sharers in an unpartitioned agricultural village in India not holding their shares as members of a joint family, it is unnecessary for the purpose of the present case to decide.' There is no expression of opinion by their Lordships that the principle was not applicable and when their Lordships expressly stated that it was unnecessary for the purpose of that case to decide the question, it cannot be contended that the principle is inapplicable.

15. It is true that in the case of Corea v. Appuhamy (1912) A. C. 230 : 81 L. P. C. 151 : 105 L. T. 836. and in some other cases, the question arose as between persons who had at one time formed members of a family. But the principle is not confined to such canes only. The principle does not depend up in whether the parties are members of a joint family but rests upon the ground that they are co-owners, and is applicable to all cases of co-owners. In the case of Balaram Guria v. Syama Charan Mondal 60 Ind. Cas 298 : 38 C. L. J. 314 at p. 348 : 24 C. W. N. (sic), both the plaintiff and the defendants were strangers who purchased from the members of a joint family and the plaintiff's vendor was not fn possession for 50 years, The principle is, that the possession of one co-owner is the possession of all for the purpose of limitation. No doubt, the sole possession of one co-owner for a very long period may, having regard to other circumstances, show exclusion or ouster. The Judicial Committee in the owe of Varada Pillai v. Jeevrathnammal 53 Ind. Cas. 901 : 46 L. A. 285 : (1919) M. W. N. 721 : 10 L. W. 679 : 24 C. W. N. 346 : 38 M. L. J. 313 : 18 A. L. J. 274 : 2 U. P. L. Rule (P. C.) 64 : 22 Bom. L. Rule 445 : 43 M. 244 (P. C.) observed: 'The limits of the rule were defined in Culley v. Doe d. Taylerson (1810) 11 A. & E. 1008 : 3 P. & D. 539 : 9 L. J. (N. S.) Q. B. 288 : 52 Rule R. 566 : 113 E. Rule 697. as follows: 'Generally speaking, one tenant-in-common can net maintain an ejectment against another tenant in common because the possession of one tenant in common is the possession of the other, and to enabla 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 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.

16. The question was also considered in Doe d, Fisher v. Prosser (1774) 1 Cowp. 217 at pp. 219, 220 : 98 E. Rule 1052; Bandacharya v. Shriniwasacharya 5 Bom L. Rule 742. Gungadhar v. Parashram 29 B. 300 : 7 Bom. L. Rule 252. and in our Court, The circumstances which should be taken into consideration were pointed out in the case of Aysnnessa Bibi v. Sheikh Luf 14 Ind. Cas. 722 : 16 C. W. N. 819 at p. 859. See also Jagannath Marwari v. Chandni Bibi 67 Ind. Cas. 31 : 26 C. W. N. 65 at p. 70 : 34 C. L. J. 432.

17. It is contended en behalf of the respondent that, having regard to the length of time which has elapsed since the defendant blocked up the entrance to the sadarbari and to the notoriety attending on the closing of the door to the entrance, the Court below was justified in coming to the conclusion that the possession of the defendant was adverse. But the learned Subordinate Judge has not considered the question whether Ha(sic)rithan had direst knowledge of the blocking of the sadar door or that there were circumstances, from which one could impute knowledge to him.

18. There can be no dispossession by one joint tenant in the absence of an assertion of a hostile title by him to the knowledge of the other joint tenants sought to be excluded from the joint tenancy: and if no notice is given to the co- sharer of the denial of his right, the occupant must make his possession go visibly hostile and notorious and so apparently exclusive and adverse as to justify the inference of knowledge on the part of the co-owner sought to be ousted and of laches if he fails to discover and assert his rights: see Jagannath Marwari v. Chandni Bibi 67 Ind. Cas. 31 : 26 C. W. N. 65 at p. 70 : 34 C. L. J. 432. and Joynarain Sen v. Suchitra Debya, 65 Ind. Cas. 8 : 26 C. W. N. 206 : 33 C. L. J. 592. where the question is fully discussed.

19. The learned Pleader for the respondent lays much stress upon the fast that the defendant blocked the entrance in 1901 and that the suit was not brought until 1917, But Haridhan was a minor for a greater part of this period and did not attain majority until 1911. It is also found that he did not go to Andul where the property is situated ever since the defendant purchased the property.

20. We think that the Court must consider whether, having regard to all the circumstances, knowledge of Haridhan of the exclusion can be inferred.

21. The case must accordingly go back to the lower Appellate Court in order that the question may be considered and the case disposed of according to law. It will be in the discretion of that Court to take farther evidence on the question of knowledge.

22. Costs to abide the result.


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