Dada Sahib and Others vs Azi Mohideen Saheb

Devadoss, J.—The first point argued in this second appeal is that the Subordinate Judge made a mis-statement of facts in his judgment. It

was urged that the statement "" that the plaintiff had no knowledge of the recitals of even one of them"" was not correct. On going through the

evidence of the plaintiff, it is quite clear that though he says he was aware of the transactions, yet he was not aware of the recitals in the various

documents. No other mis-statement of fact has been relied upon and I find this point against the appellants.

The second point, urged on behalf of the appellants, is that the defendant has been able to keep out the plaintiff for the statutory period and

thereby has acquired a right by adverse possession. The plaintiff and the 1st defendant are brothers belonging to a Muhammadan family. They are

tenanfcs-in-cornmon unless the defendant is able to show that the plaintiff was kept out of possession of the properties to his knowledge ha cannot

claim to have been in adverse possession as against the plaintiff. The Subordinate Judge has considered the evidence carefully and has come to the

conclusion that there is no evidence that the plaintiff was kept out of possession of the properties to his knowledge for more then 12 years. The

plaintiff was a trader in Bangoon and he was there before his father''s death and made periodical visits to his place and stayed with the second

defendant. Taking, all these circumstances into consideration the Subordinate Judge was perfectly justified in coming to the conclusion that there

was no exclusion of the plaintiff from the possession of the properties.

Then, a third point was sought to be urged, that the Subordinate Judge had applied the presumption of law applicable to Hindu families, in

stating that the defendant had to make out a title to the acquisition. The Subordinate Judge relies upon no such presumption. It is clear from the

evidence that the first defendant had no independent means of his own.

The acquisitions could have come only from the income of the property belonging to him and his brother in common, and upon that evidence the

Subordinate Judge was justified in drawing the inference that the acquisitions were made from the income of the joint property. Unless there be

something to show that one tenant-in-comtnon was excluded from enjoyment to his knowledge, for more then 12 years, he would be entitled to a

share in them. He very rightly relied upon the leading case of Corea v. Appuhamy (1912) A.C. 230 and came to the conclusion that there was no

such ex-elusion of the plaintiff, as would bar his right either, in regard to the properties, which were acquired by the first defendant after his father''s

death. The second appeal fails and is dismiss ed with costs.

The Memorandum of Objections is dismissed, but without costs.