Ibramsa Rowther and Others vs Sheik Meerasa Rowther and Others

K.S. Ramamurti, J.—This appeal arises out of a suit for partition, O.S. No. 90 of 1960, Sub-Court, Trichy, and defendants 3, 4, 7 to 11

and 13 are the appellants, defendants 7 to 13 claiming under an alienation from the grandmother of the third defendant. Defendants 14 to 16 are

the alienees through the plaintiff. The District Board of Madura, who was impleaded as the sixth defendant and subsequently exonerated is not

concerned in this litigation. The plaintiff, Sheik Meerasa Rowther, filed the suit for partition claiming to be entitled to 287/720ths share in the estate

left behind by his father, Sahib Sangheer Khan who died in 1931. The third defendant, who is the grand son (daughter''s son) of one Appavoo

Rowther, another son of Sangheer Khan, is the main contesting defendant, his defence being that, immediately after Sangheer Khan''s death in

1931, there was a family arrangement, in pursuance of which there has been a complete partition by metes and bounds, in which the properties

situate in Thamarapadi Village in Dindigul taluk have been allotted to the share of Appavoo Rowther aforesaid and the suit for partition as though

the estate of Sahib Sangheer Khan remained undivided, was incompetent and misconceived. The trial Court negatived the contentions raised by

the defendant and decreed the suit for partition, allotting 287/720ths share to the plaintiff in the suit properties. It is against this judgment that

Appeal No. 273 of 1964 has been preferred. The following genealogical tree shows the relationship between the parties. The ranks of the parties

in the present suit are also mentioned as against their names. As frequent reference will have to be made to an earlier litigation between the parties,

O.S.No. 29 of 1952, District Munsif''s Court, Kulithalai, their ranks in the earlier litigation also are mentioned in the tree.

GENEALOGICAL TREE

Sahib Sangheer Khan (diedin 1931)

Vellaithayammal (died in 1953)

_____________________________________________________________________________________________

| | | | | |

Sheik Rowther | Amino Bibi | | |

(pre-deceased | (predeceased | | |

his father) | her father) Sheik Avvammal |

| Pillaiamtnal | (Meerasa Rowther Bibi |

Sheik Mohamed (pre-deceased Sheik D-l in O.S. 29/52) (D-5 in |

Rowther her father) Meerammal present Plaintiff) O.S. 29/52) |

(D-3 in O.S. 29/52) | Bibi & (present D-1 |

& (present D-5) Meerammal (D-4 in | |

married to Bibi O.S. 29/52) Ponnayya |

Jamila Bibi Rowther |

(present D-2). (D-6 in |

O.S. 29/52) |

Jamila Bibi Appavoo

(present D-2) Rowther

married to (died in 1936)

Sheik married to

Mohammad Rahima Bibi

Rowther (D-7 in

(present D-5) O.S. 29/52)

(died in 1954)

| |

________________________

| |

Rafia Bibi Syed Meeram

(died in 1939) Bibi

(D-8 in O.S. 29/1952)

(died in 1957)

married to

Appavoo Rowther

(present D-4 & D.W. 3)

Minor Ibramsa Rowther

(present 3rd deft. &

1st appellant).

The facts of the case are briefly as follows: - The ancestor of the parties, Sahib Sangheer Khan belonged to Ilanka-kurichi village, Kulithalai

taluk and died in the year 1931. His estate mainly consisted of dry lands in Chettiapatti village, Kulithalai taluk, house and shops in the native village

of Ilankakurichi, nanja and punja lands situate in Thamarapadi village, Dindigul Taluk and some outstandings, i.e., mortgage debts and promissory

note debts, in favour of the deceased. His widow was Vellaithayammal who died in the year 1953. Sangheer Khan''s eldest son, Sheik Rowther,

and two daughters, Pillai Ammal and Amina Bibi pre-deceased their father. The grandsons of Sangheer Khan through his predeceased son Sheik

Rowther is Sheik Mohamed Rowther, the fifth defendant in the suit. Awammal Bibi, the surviving daughter of Sangheer Khan, is the first defendant.

Awammal''s daughter, Jamila Bibi is the second defendant. She has married her maternal uncle''s son, Sheik Mohamed Rowther aforesaid, the 5th

defendant in the action. The last son of Sangheer Khan was Appavoo Rowther who died in the year 1936, leaving behind, him his widow Rahim

Bibi. They had two daughters, Rafia Bibi who died in 1939 and Syed Meerammal Bibi who died in 1957. The third defendant, minor Ibramsa

Rowther is the son of Syed Meerammal Bibi aforesaid i.e., the grandson of Appavoo Rowther and Rahima Bibi, through their daughter Syed

Meerammal Bibi aforesaid. The other defendants are alienees. Vellaithayammal conveyed her i/8th share, to which she was entitled in her

husband''s estate, to the second defendant, her daughter''s daughter, under a sale deed dated 21st February, 1953. The plaintiff''s case is that the

remaining 7/8ths shares were taken by the plaintiff, his sister Awammal Bibi (first defendant) and his other brother Appavoo Rowther, the maternal

grandfather of the minor third defendant. The plaintiff claims Troths share as the heir of his father and 14/i6oths share in the estate of his deceased

brother Appavoo, i.e., in all 7o/i6oth share.

Defendants 1, 2, 5 and 12 remained ex parte. The seventh defendant is an alienee of certain items of lands in Thamarapadi village (set out in

Schedule B to the plaint) under the sale deed, Exhibit B-5 dated 31st May, 1952, executed by Syed Meerammal Bibi, the daughter of Appavoo

Rowther and granddaughter of Sangheer Khan. Certain other items in the B Schedule in Thamarapadi village were sold by Rahima Bibi under

Exhibit B-4 dated 13th March, 1939 in favour of one Velankanni Servai, the husband of the eighth defendant and father of defendants 9 to 12.

Defendants 14 to 16 are alienees, from the plaintiff, of the shops in the village under a sale deed dated 14th August, 1951. The case of defendants

3 and 4 and the alienees claiming title under them is that, after the death of Sangheer Khan in 1931, there was afamily arrangement and a partition

by metes and bounds, at which the lands in Chettiapatti village and the shops and the house in the native village were allotted to the plaintiff

towards his share, that the entire lands in Thamarapadi village were allotted to the plaintiff''s brother, Appavoo Rowther, that some mortgage debts

and promissory note debts due to Sangheer Khan were given to his widow, Vellaithayammal that Awammal, the first defendant was given some

lands in another village, variously called Chakkarnam or Chakkalam, that there has been an outright partition by metes and bounds between the

two sons, the surviving daughter and the widow of Sangheer Khan and that ever since that partition arrangement, the parties were in separate

possession and enjoyment of the properties allotted to them and that Appavoo Rowther and after his death in 1936 his wife Rahima Bibi have

been in separate and exclusive possession and enjoyment of the properties and that after Rahima Bibi''s death in 1954, her daughter Syed

Meerammal and her minor son, the third defendant, have been in separate and exclusive possession of the lands in Thamarapadi village allotted to

the share of Appavoo Rowther aforesaid. Defendants 3 and 4 also contested the suit on the ground that the title of the other members of the family

to Thamarapadi lands had been extinguished by adverse possession and enjoyment by Appavoo Rowther and the members of his branch and by

ouster for nearly three decades, and the members of the other branches will have no right in respect of Thamarapadi lands. The present defendants

14 to 16 filed the earlier suit, O.S.No. 29 of 1952, District Munsif''s Court, Kulithalai, to enforce their right under the sale deed dated 14th

August, 1951 executed by the plaintiff in respect of the shops (item 7 in the A Schedule) and in that litigation, it was held that defendants 14 to 16

herein, i.e., the plaintiffs in that suit, were only entitled to a partition of 287/720111 share in the house and also a decree against the present plaintiff

for damages for breach of covenant of title. Defendants 14 to 16 relied upon that judgment in O.S.No. 29 of 1952. Even though several points

were raised in the trial Court, the main point that was stressed by counsel on both sides related to the question whether Appavoo Rowther and the

members of his branch had become solely entitled to the lands in Thamarapadi village either in pursuance of the partition arrangement immediately

after the death of Sangheer Khan or by separate and exclusive possession and ouster for nearly three decades, with the result that the right and

title, if any, of the other members of the family of Sangheer Khan had become extinguished.

A perusal of the judgment of the learned Subordinate Judge shows that on the crucial factual portion of the case he has accepted the case of the

defendants, separate and exclusive possession of the Thamarapadi lands with Appavoo Rowther and his wife from Will alienating portions of

Thamarapadi lands and the alienees being in possession of the properties since 1939. The Subordinate Judge also finds that for nearly three

decades the plaintiff had no possession whatever of the lands in Thamarapadi village. Equally, the Subordinate Judge finds that the plaintiff and his

alienees alone have been in sole and exclusive possession of the lands in Chettiapatti village. The learned Judge has also found that in the prior

litigation, O.S. No. 29 of 1952, the plaintiff has filed a written statement and also given evidence (which have been marked respectively as Exhibits

B-1 and B-2) completely supporting the case of the defendants 3 and 4 about the family arrangement and the partition at which Thamarapadi lands

were allotted exclusively to Appavoo Rowther. The Judge has also found that in respect of Thamarapadi lands, the plaintiff''s name is not found in

the concerned patta. In other words, the learned Judge has found that, in the matter of separate and exclusive possession and enjoyment of the

lands in Thamarapadi village, Appavoo Rowther and the members of his family alone have been in sole and exclusive possession ever since

Sangheer Khan''s death in 1931 and the plaintiff and the members of the other branch had no possession whatever. Even so, the learned Judge has

negatived the defence in the view that there is no partition deed. As regards the exclusive possession of the land in Thamarapadi village with

Appavoo Rowther and the members of his branch, the learned Judge referred to some judicial decisions and took the view that such exclusive

possession by one co-owner, however long the period may be, would not constitute ouster. On a careful scrutiny of the oral and documentary

evidence, we are unable to agree with the ultimate conclusion and findings of the learned Subordinate Judge. In the first place, We are satisfied that

the plaintiff has not been able to explain his prior admissions in the written statement (Exhibit B-1) in O.S No.29 of 1952 and his prior deposition

(Exhibit B-2) therein. Secondly, the plaintiff''s conduct in altogether suppressing the fact that for over two and half decades the plaintiff was in sole

exclusive possession of Chettiapatti lands and the shops and the house in the village and that Appavoo and his branch had been in sole and

exclusive possession of the Thamarapadi lands, betrays the consciousness in the mind of the plaintiff that such separate posses sion was in

pursuance of the prior family arrangement and partition. In paragraph (6) of the plaint the plaintiff has made a dubious bald and cryptic statement

that the heirs of Sangheer Khan, are in joint enjoyment of the properties and that the plaintiff has filed the suit for partition because it is not possible

for him to continue jointly hereafter. There is also the important fact that the second defendant, to whom the widow Vellaithayammal has purported

to convey her 1/8th share, remained ex parte. D.W. 1, the scribe of the two sale deeds,, Exhibits B-4 and B-5, and D.W. 2 who is a. resident of a

village two miles from Thamarapadi and who is also the brother of Rahima Bibi, have given evidence. Besides this evidence, the admissions of the

plaintiff and his prevaricating answers lend considerable support to the defence of the defendants. The plaintiff has instituted the suit about thirty

years after the death of his father, when as a result of the inordinate delay, other persons who were parties to the arrangement and who could have

given evidence are dead, Even if there should be any gap or defect in the evidence, the adverse inference will have to be drawn against the plaintiff

in view of the inordinate delay in his asserting his rights and the plaintiff must 1 take the responsibility for the same.; Vide the statement of the law in

Sarkar on Evidence (Twelfth Edition), page ion, to the effect, that if the plaintiff was in a position to sue before and the long delay in bringing the

suit has prejudiced the defendant and has occasioned loss of evidence by death or otherwise, a strong presumption may arise against the plaintiff.

* * * *

We have no hesitation, on a survey of the evidence, particularly in view of the uniform course of conduct and actings of the parties for over 2 J

decades, in holding that Thamarapadi lands had been allotted to Appavoo''s branch at the family partition and that branch alone had been in

separate and exclusive possession of those lands. When once the theory of separate enjoyment for the purposes of convenient management is

ruled out altogether, the version of the defendant has to be accepted as highly probable and true. The evidence adduced on the-side of the

defendants amply supports their version. It is clear that in view of the change and the drift in the fortunes of this ancient family and in view of the

recent rise in the value of the property, the plaintiff has indulged in this speculative litigation, to reopen a partition arrangement which took place

over 25 years ago and which has been given effect to and acted upon by all the parties during the entire period of about three decades.

Even if the evidence adduced on the side of the defendants to establish a partition is insufficient, the question still arises whether the plaintiff''s

title has been extinguished and the defendants have acquired title by ouster as a result of the hostile, exclusivs possession and enjoyment of the

Thamarapadi lands for over twelve years, in the instant case, for over three decades. Learned Counsel, Mr. Ahmed Meeran for the plaintiff, urged

that the mere fact that the patta for the lands stood in the name of one co-owner or the other co-owner''s non-participation in the income of the

properties or his mere inaction for any length of time would not amount to ouster and that there should be further clear proof that acts of enjoyment

were such as to constitute ouster to the knowledge of the co-owner, in the sense that there was an open denial and repudiation of the title of the

plaintiff, by Appavoo Rowther and the members of his branch. Learned Counsel urged that in this case, there is no such evidence of open assertion

and open repudiation of the right and title of the plaintiff to his knowledge and all that is proved is mere exclusive possession for over thirty years

and that, under those circumstances, possession of Tnamarapadi lands by Appavoo Rowther and his branch for any length of time, even if it be for

three decades, will avail nothing as against the plaintiff. Mr. Meeran invited our attention to some of the decisions in support of his contention, for

instance, the observations of Veeraswami, J. (as he then was) sitting With Ganapatia Pillai, J., in Muhammad Kaliba Rowther Vs. Muhammad

Abdullah Rowther, where the learned Judge has observed:

It is well settled law, and we think that no citation of authority is necessary that possession in the hands of a co-sharer of a property owned in

common is possession on behalf of all the co-sharers. Implicit in this proposition is the further position in law that mere non-participation in the

receipts from such Immovable property or mere inaction in respect of it for any length of time on the part of one or more of the co-sharers is not

regarded as amounting to ouster or as investing the possession in the hands of one of the co-sharers with an. adverse character so as to enable

him. to prescribe against the other co-sharers. It is only when acts are clearly proved on the part of the co-sharer in possession which would be

inconsistent with any other co-sharer being entitled to any possession or interest in any part of the. property, it can be said that any question of

ouster of the co-sharers not in possession can arise. In the absence of such ouster there will be no room for adverse possession or prescription in

favour of the co-sharers in possession.

Learned Counsel also placed reliance upon a recent decision of the Supreme Court reported in Maharajadhiraj of Burdwan, Udaychand Mahatab

Chand Vs. Subodh Gopal and Others, , where too, it was observed at page 378, that '' once it is held that a co-owner is a co-owner of the lands

in question, his possession, however long it might be, unless it is adverse to the other co-owners, cannot confer on him any right''. Learned Counsel

urged that, to constitute ouster, there must be clear proof that the exclusive possession started with open repudiation and denial of the title of the

plaintiff to his knowledge or that, at some point of time, the character of possession changed from mere exclusive possession to hostile possession

in open repudiation and denial of the title of the plaintiff to his knowledge and continued. as such for over twelve years. We are not inclined to

accept this argument presented in this form as it is not a full and complete statement of the doctrine of ouster, and it will not be a correct statement

in the abstract to say that exclusive possession for any length of time (regardless altogether of the time factor) is of no consequence. The decisions

relied upon by Mr. Meeran do not lend support to this extreme contention. In a recent Bench decision of this Court of one of us sitting with

Venkataraman, J., reported in Abdul Kadir v. Umma ILR (1970) Mad. 636, the doctrine of ouster as between co-owners has been elaborately

reviewed with special reference to the time factor of sole and exclusive possession of one co-owner in the background of the other co-owner''s

continuous and complete inaction and non-participation in the income for a considerable length of time. Vide : the discussion of Venkataraman, J.

at pages 700 to 710 and discussion of the other learned Judge (Ramamurti, J.) at pages 725 to 743. As this Bench decision has elaborately

reviewed the entire case-law, both in England and in India, it may not be necessary to refer in detail and at length to the wealth of case-law. In the

Bench decision in Abdul Kadir v. Umma ILR (1970) Mad. 636, referred to above, the same argument was advanced that exclusive possession for

any length of time would not constitute ouster, that time factor is not of much significance and, in that connection, reliance was placed upon the

(observations in Md. Kaliba v. Md. Abdullah (1963) 1 M.L.J. 41 : ILR (1963) Mad. 101 extracted above) of Veeraswami, J. (as he then was)

and the latter Bench had pointed out that the decision in Md. Kaliba v. Md. Abdullah (1963) 1 M.L.J. 41 : ILR (1963) Mad. 101, turned on the

peculiar facts of the case, that, in that case, the question arose within a short period of 14 years and that the attention of the Bench was also not

drawn to the uniform trend of judicial opinion, both in England and India, where the theory ,of lost grant was applied and ouster was presumed

from long lapse of years, other circumstances concurring.

We shall briefly summarise the legal position. There is a basic distinction between adverse possession as between strangers and ouster and

exclusion of co-owners. In the case of adverse possession as against strangers, it is sufficient that adverse possession is overt and without any

attempt at concealment so that the person, against whom time is running, ought, with the exercise of due vigilance, to be aware of what is

happening. It is not necessary that adverse possession should be brought home to the knowledge of the owner. If his rights have been openly

usurped (not secretly), he cannot be heard to complain that the fact of adverse possession was not brought to his knowledge. If the adverse

possses-sion is open, visible and notorious, even if the owner remains ignorant and indifferent, it is his own fault. Tne observations in som; of the

cases, in general, that, in the case of adverse possession between strangers, knowledge of adverse possession on the part of the owner is an

essential element of adverse possession, are too widely expressed and do not represent the correct legal position. Vide: the following observations

of Lord Macmillan in Secretary of State for India in Council v. Debendralal Khan ILR (1934) Cal. 262:

The classical requirement is that the possession should be nee vi nee clam nee precario. Mr. Dunne for the Grown appeared to desiderate that the

adverse possession should be shown to have been brought to the knowledge of the Grown, but in their Lordship''s opinion, there is no authority for

this requirement.

It is sufficient that the possession be overt and without any attempt at concealment so that the person, against whom time is running, ought, if he

exercises due vigilance, to be aware of what is happening.

In a case of ouster of a co-owner, the position is entirely different. The possession of one co-owner is presumed to be on behalf of all the co-

owners in view of the unity of title and possession. Because of this presumption of joint ownership in the case of co-owners, the law requires to

constitute ouster, proof of sometning more than mere exclusive possession and exclusive receipt of income. Along with exclusive possession there

must be an ouster, a hostile, open denial and an open repudiation of the other co-owner''s right to the latter''s knowledge. The co-owner in

exclusive possession cannot render his possession adverse to the other co-owner merely by any secret, hostile animus on his own part in

derogation of the other co-owner''s title, yide the observations in Dr. J.N. Banavalikar Vs. Municipal Corporation of Delhi and another, , Sinnaraj

Pillai and Others Vs. Ramayee Ammal and Another, and Sinnaraj Pillai and Others Vs. Ramayee Ammal and Another, and Shambhu Prasad Singh

Vs. Mst. Phool Kumari and Others, this does not mean that the co-owner who has been ousted or excluded should ibe expressly informed as such

by the other co-owner. If other circumstances concur, the Courts, in proper cases, may legitimately infer, from exclusive possession for a

considerable length of time, that the other co-owner has been excluded to his knowledge and that title has been denied and repudiated by the

hostile assertion of the co-owner in possession. The theory of lost grant is applicable to support long continued possession for a considerable

length of time and the most important element inpresuming ouster is the time factor or the length of time of sole and exclusive possession by one

co-owner. If a co-owner does not assert his rights for a considerable length of time with the result that the other side is handicapped, by lapse of

time and disappearance of evidence, from proving that his exclusive possession was coupled with open denial and open repudiation of the title of

the other co-owner either at the inception or subsequently, the co-owner who has been inactive must take the consequence for the long delay in

bringing the suit which has prejudiced the other side and occasioned the loss of evidence by lapse of time. As observed in Broom''s Legal Maxims

(Tenth Edition), page 645, ""No greater obligation lies upon a Court of justice than that of supporting long continued enjoyment by every legal

means, and by every reasonable presumption; this ''doctrine of presumption goes on the footing of validity, and upholds validity by supposing that

everything was present which that validity required'' ; omnia proesumuntur rite juisse acta is the principle to be observed"". Courts may presume

ous-terfrom exclusive possession for a considerable length of time. We may, in this context, extract the following observations in Abdtd Kadir v.

Umma ILR (1970) Mad. 636

In evolving the aforesaid principles, the Indian Courts and the Privy Council have, from very early times, followed and applied the principles laid

down in the decisions in England that to constitute ouster, there should be proof of assertion of an exclusive hostile title and a denial or repudiation

of the other co-owner''s right brought home to the latter''s knowledge and that mere exclusive possession would be insufficient. While the English

Courts insisted upon this essential test of an actual ouster, they had, at the same time, to deal with the situation of exclusive possession, for a

considerable length of time, taking back to a, time, beyond living memory, when it was impossible to prove by direct evidence, as to when the

adverse possession started and when knowledge of assertion of hostile title was brought home to the other co-owner. The other principle of law

and justice equally well established, that no greater obligation lies upon a Court of justice than that of supporting long-continued enjoyment by

every means and by every legal presumption and the great reluctance of Courts to interfere with long established possession, had also to be taken

note of. It is in this context of these two theories that eminent Judges in England held, that ouster can well be presumed from exclusive possession

of one co-owner and non-participation in the profits of the property by the other co-owner for a considerable length of time, for several decades

or several generations,, as, after such a length of time, hostile assertion and repudiation to the knowledge of the co-owner concerned cannot be

proved but can only be inferred. English decisions, side by side, while insisting upon knowledge of ouster, have laid down, that an English jury can

properly be directed to presume or infer an outser from long-continued possession without any claim or demand by the other co-owner. A

presumption analogous to the theory of a lost grant, was invoked in such cases and knowledge and ouster presumed, in the view that, it would be

dangerous to disturb or defeat the party''s long undisturbed possession for several decades. Courts in India have also uniformly applied the same

principle, and presumed ouster, taking into account the attendant circumstances of the case, and the long exclusive possession for a considerable

length of time.

A reference to the decision of Justice T.L. Venkatarama Ayyar (as he then was) reported in Maddela Krishnayya Vs. Maddela

Udayalakshmamma and Others, will show that that the time factor of exclusive possession is an important element in inferring ouster. The learned

Judge has referred to the relevant decisions in England and India, in which ouster was presumed on account of exclusive possession on the part of

one co-owner for a considerable length of time, though, on the facts of that particular case, the learned Judge held that ouster was not established,

nor could be presumed, as exclusive possession was not for a considerable length of time. We may also refer to the Bench decision of the Andhra

Pradesh High Court in Peeran Sahib v. Jamaluddin Sahib ILR (1957) A.P. 686 : AIR 1958 A.P. 48 , in which Subba Rao, C.J., delivering the

judgment on behalf of the Bench, has invoked the doctrine of lost grant and presumed ouster where the exclusive possession of one co-owner was

for a considerable length of time. This is what the learned Chief Justice has observed at page 53:

It is not necessary to multiply cases as the law is well settled. The possession of one co-owner is the possession of all co-owners. A co-owner

who pleads ouster must establish that there was a denial of the other co-owner''s right to his knowledge and that he continued to enjoy the

property exclusively for the statutory period after such unambiguous denial. Ouster in suitable cases can be presumed from non-participation in the

profits of the land for a long period of time affecting different generations under such circumstances that denial could not be proved but could only

be inferred.

Again, in Ramlakhan Singh Vs. Bhaia Chathu Sahi and Another, , a Bench of the Patna. High Court has observed that, if the claimant co-owner

has not been in participation of rents and profits for a considerable length of time, it will be a good presumption to draw that it was in pursuance of

ouster. The leading Indian decision in which it was laid down that it will be legitimate to presume ouster from, sole continuous possession by a co-

owner for a considerable length of time, is reported in Gangadhar v. Parashram ILR (1905) Bom. 300, Jenkins, C.J. laid down the law that sole

possession by one tenant-in-common continuously for a long period without any claim or demand by any person claiming under the othet tenant-in

common is evidence from which an actual ouster of the other tenants-in-common may be presumed. The learned Chief Justice followed the

principle of law enunciated by Justice Ashhurst in the leading English decision in Deo v. Prosser 11 A. & E. 100 : 113 E.R. 697, as well as in

Gulley v. Deo 1 Cow 217 : 98 E.R. 1052. This decision of the Bombay High Court, which was rendered in the year 1905, has been uniformly

followed in all the decisions of the High Courts for over 65 years. Indeed there has been no dissent. The same view was taken by the Rangoon

High Court in Mhung Hla v. Manika AIR 1940 Rang. 141, in which it was observed that mere non-participation in rents and profits would not, by

itself, amount to ouster, but such non-participation may, in the circumstances of a particular case, amount to ouster and that the most important

element is the. length of time of such exclusive possession. In that case, it was held that ouster may rightly and legitimately be presumed from the

co-owner''s sole and exclusive possession for a period between 30 and 40 years, during which time one co-owner alone was in exclusive;

possession and enjoyment of the rents and profits wnile the other co-owner was inactive. In taking this view, the Rangoon High Court has followed

the uniform trend of opinion of the Calcutta High Court which was to the effect that the important element in inferring ouster is the considerable

length of time of exclusive possession by one co-owner. In Abdul Kadir v. Umma ILR (1970) Mad. 636, (already referred to) there is a detailed

reference to all the cases of all the High Courts, in which presumption of ouster was drawn from the length of exclusive possession and other

circumstances concurring. We may also refer to the decision of the Privy Council in Varada Pillai v. Jeevarathnammat ILR (1920) Mad. 244 : 46

I.A. 285 : 38 M.L.J. 313 : AIR 1919 P.C. 44, (observations of Viscount Cave, J., at page 252) in which the Privy Council has quoted with

approval the statement of the law in the leading and oftquoted English decision in Gulley v. Doe 1 A. & E. 1008 : 113 E.R. 697, that if a co-owner

has been in exclusive possession and in receipt of the rents and income from the property for a considerable length of time and the other co-owner

was, throughout, inactive, it will be legitimate for the Court to raise the presumption of ouster and that the length of time is a relevant and important

factor in coming to a conclusion one way or other on the question of ouster.

It only remains to refer to the two English decisions which have held the field for about two centuries, in which the importance of the time factor

has been stressed as giving rise to the presumption of ouster. The first is the decision in Doe v. Prosser 1 Cowper 217 : 98 E.R. 1052 . In that

case, a co-tenant was not in possession of the property, nor in reception of the rents and profits, for nearly forty years and, on his behalf, it was

urged that mere exclusive reception of rents and profits by the other co-owner for any length of time would not constitute ouster. But it was held

that the jury may presume an actual ouster from such sole and uninterrupted possession by one co-tenant to the exclusion of the other for 36 years.

Lord Mansfield observed:

It is very true that I told the jury, that they were warranted by the length of time in this case, to presume an adverse possession and ouster by one

of the tenants-in-common, of his companion; and I continue still of the same opinion. Some ambiguity seems to have arisen from the term '' actual

ouster'', as if it meant some act accompanied byreal force, and as if a turning out by the shoulders were necessary. But that is; not so. A man may

come in by a. rightful possession, and yet hold over adversely without a title. If he does,, such holding over, under circumstances, will be equivalent

to an actual ouster.

* * * *

Therefore, I am clearly of opinion, as; I was at the trial that an undisturbed, and quiet possession for such a length, of time is a sufficient ground for

the. jury to presume an actual ouster,, and that they did right in so doing.

Asten, J., explained the legal position) thus:

With respect to the second, if no actual ouster is proved, yet it may be inferred from circumstances, which circumstances are matter of evidence to

be left to a jury. Now in this case, there has been a sole and quiet possession for 40 years, by one tenant-in-common only, without any demand or

claim of any account by the other, and without any payment to him during that time. What is adverse possession or ouster, if the uninterrupted

receipt of the rents and profits without account, for near 40 years is not?

Willies, J., while stressing the necessity for actual ouster, made the following observations as to the significance of long continuous possession for a

considerable length of time:

However strict the notion of actual ouster may formerly have been, I think adverse possession is now evidence of actual ouster; and therefore,

entirely agree that under the circumstances, which appeared at the trial, it was. very properly left to the jury to presume an actual ouster in this

case.

At page 1053, Justice Ashhurst put the matter thus:

I am entirely of the same opinion. Here is a possession of near 40 years, without any claim by the lessors of the plaintiff to a share of the rents and

profits, and without any acknowledgment of his right, by the other tenant-in-common.

After so long an acquiescence I think the jury were well Warranted to presume anything in support of the defendant''s title and'' they might

presume, either an actual ouster or a conveyance.

* * * *

But here it was left to the jury, and the jury have presumed an actual ouster; and I think that after a quiet uninterrupted and undisturbed possession

of 40 years they were warranted in so doing.

The same rule of presumption of ouster was followed in the case in Gulley v. Doe 1 A. & E. 1008 : 113 E.R 697. In that case, the plaintiff-co-

tenant was out of possession for over 35 years and Lord Denman, G.J., while referring to Doe v. Prosser 1 Cow 217 : 98 E.R. 1052, with

approval, stated the law thus:

Generally speaking, one tenant-in-common cannot maintain an ejectment against the other 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-cpmmon, has not been in 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 ouster: as to which see the cases of Doe v. Prosser 1

Cow 217 : 98 E.R. 1052 , Doe Dent Hellings v. Bird 11 East 49 and Doe Dew. White v. Guff 1 Campbell 173.

It is unnecessary to multiply authorities.

As already observed, the principle enunciated by the two leading English decisions has been applied in India from very early times by all the

Courts, and in every one of those cases, it is to be noticed that ouster was presumed from the length of time and other circumstances concurring.

Indeed, in Dr. J.N. Banavalikar Vs. Municipal Corporation of Delhi and another, , (already referred to) the Supreme Court, in the portions already

referred to, has referred to with approval the cases in which the view has been taken that ouster can be inferred when one co-heir is in notorious

exclusive possession and continues in such possession for a very considerable time, and the excluded heir takes no steps to indicate his title. We

have also adverted to the fact that in Varada Pillai v. Jeevarathnanmal ILR (1920) Mad. 244 : 38 M.L.J. 313, the Privy Council referred to with

approval the statement of the law in Muhammad Kaliba Rowther Vs. Muhammad Abdullah Rowther, . We are, therefore, not inclined to take the

view that either the earlier Bench decision of this Court in Md. Kaliba v. Md. Abdullah (1963), or the recent decision of the Supreme Court in

Udaychand v. Sobodh Gopal, had laid down any new principle contrary to the well-settled rule of law as emerging from the uniform course of

decisions in England and of all the Courts in India particularly its own view in Dr. J.N. Banavalikar Vs. Municipal Corporation of Delhi and

another, . It is thus clear that it is not correct to take the mere use of the words ""co-owner''s exclusive possession for any length of time"", divorced

from their context and develop an argument that length of time is an irrelevant factor. In the instant case, besides length of time, there are abundant

circumstances concurring, to support the theory of ouster. The plaintiff himself has admitted that Appavoo and his branch was in possession of the

Thamarapady lands in pursuance of the partition arrangement. The plaintiff is the seniormost member of the family and he would not have allowed

Appavoo to be in sole possession of the property. Appavoo died in 1936, but even thereafter, the plaintiff, the seniormost surviving male member

of the family, did not take steps to obtain possession of the Thamarapadi lands. But Appavoo''s widow, Rahima Bibi alone took possession and

the patta was transferred in her name in the place of Appavoo Rowther. Rahima Bibi herself was of unsound mind for a considerable period and

even then, the plaintiff did not take any interest in resuming possession of Thamarapadi lands. Rahima Bibi''s daughter, Syed Meerammal, died in

1957 and even then, the plaintiff was inactive. In the meanwhile the plaintiff''s mother, Vellaithayammal, died in 1953. As early as 1939 Rahima

Bibi, the widow of Appavoo Rowther, sold a portion of Thamarapadi lands under Exhibit B-4. The plaintiff was aware of this sale as well as the

sale by Syed Meerammal under Exhibit B-5 dated 31st May, 1952 of some other portion of Thamarapadi lands. Even then the plaintiff has been

indifferent and inactive. There are undoubtedly other circumstances which support the presumption of ouster, taken along with exclusive possession

for a considerable length of time. In such a situation, as observed by Venkataraman, J. in Abdul Kadir v. Umma ILR (1970) Mad. 636, it is

obvious good sense and justice that Courts should be reluctant to unsettle quiet and undisturbed possession for ever three decades and, in order to

maintain the person in such possession, the law presumes a lawful origin of possession which, in the context, must originate from ouster and

continue to be such for the statutory period. For all these reasons, we have no hesitation in holding that, independently of the truth of the partition

arrangement, the plaintiff''s rights have been extinguished by ouster. For the same reasons, we hold that the plaintiff is not entitled to claim any share

as an heir to his brother Appavoo who died in 1936. For twenty-four long years, the plaintiff slept over, though, in the interim, there was a litigation

and the parties were fighting. It cannot be pretended that the plaintiff was ignorant of his rights as an heir to the estate of his deceased brother

Appavoo. If the plaintiff kept quiet for over two decades, it must be because he was quite content that his brother''s widow and daughter might

take Thamarapadi lands for themselves to the exclusion of the plaintiff. Every presumption has to be made to support the long possession in favour

of the contesting defendants. If one can speculate, it may be that the plaintiff got a very much larger share in the properties of his father and

therefore, was quite willing that Thamarapadi lands were to be taken by Appavoo, his widow and daughter, for themselves. It is unnecessary to

pursue the matter. We are satisfied that the plaintiff''s rights, if any, have been extinguished by ouster. For all these reasons, the appeal is allowed

and the plaintiff''s suit is dismissed with the costs of the contesting defendants Nos. 3, 4, 7 to 11 and 13, in both the Courts.