Ramlakhan Singh vs Bhaia Chathu Sahi and Another

Das, J.—This was a suit for partition of mauza Goalkhar. The suit was resisted by the defendants both on the question of title as also on the question of possession. The Court of first instance answered both the questions in favour of the plaintiff and gave him a decree substantially as claimed by him. The learned Judicial Commissioner of Chota Nagpur finds the question of title in favour of the plaintiff; but has come to the decision that the defendants have been in possession of the entire mauza for over twelve years; and in that view has dismissed the plaintiff''s suit. The plaintiff appeals to this Court.

Shortly stated the facts are these. One Tarunpal was the owner of the mauza in question. On 7th May 1908 he gave a mokarrari of an eight annas interest in the mauza to the defendants. On 10th July 1913, he gave a mokararri of the other eight annas interest in the mauza to Hari Baksh. On 17th March 1924 one Hari Baksh conveyed his interest to the plaintiff. The plaintiff contends that in the events which have happened he is entitled to have his eight annas interest partitioned by metes and bounds.

The defendants contended that Tarunpal intended to give them a mokarrari of the 16 annas interest in the mauia, but that in any event they have been in adverse possession of the remaining eight annas sufficiently long to" enable them to rely upon the statute of limitation as an answer to the plaintiff''s suit. We are not concerned with the question of title, for the Courts have concurrently found that the title was in Tarunpal. There is, however, no doubt that the defendants have been in possession for over 12 years but the plaintiff''s case is found upon the English rule of law, which was abrogated by the Statutes 3 and 4 Wm. 4, c. 27 Section 12, that the possession of one of several coparceners, joint tenants or tenants-in-common is the possession of the others so as to prevent the statute of limitation from affecting them. Recently some doubt has been thrown on the application of this rule to unpartitioned agricultural villages in India, see Varada Pillai v. Jeevarathnammal AIR 1919 P.C. 44 and Sailaja Nath Ray Choudhury and Others Vs. Raja Reshee Case Law and Others, , but it seems to me that the rule is too well established to admit of any doubt.

But the question still remains whether upon the facts the rule has any application at all in this case. Now the learned Judicial Commissioner found that Tarunpal granted rent receipts to the defendant in 1908 and 1909 in respect of the entire 16 annas interest in the mauza. The learned Judicial Commissioner also found that in May 1909 Tarunpal conveyed to one Hasman his right to receive the mokarrari rent in respect of the entire mauza Goalkhar. From these documents the learned Judicial Commissioner came to the conclusion that the possession of the defendants was adverse to that of Tarunpal and therefore, to that of the plaintiff.

The first argument to be noticed is that the Court of first instance found these rent receipts to be a forgery and that the learned Judicial Commissioner has not dealt with this question. It seems to me that the learned Judicial Commissioner relying as he has on the rent receipts must impliedly have overruled the objection that these rent receipts were not genuine. I think we must proceed on the hypothesis that these rent receipts were actually granted by the landlord to the defendants.

Now upon these facts does the rule upon which the plaintiff relies at all apply? For this purpose it will be useful to refer to the recent decision of the Judicial Committee in Varada Pillai v. Jeevarathnammal AIR 1919 P.C. 44. The facts were these. The disputed property belonged to two brothers G and P.G died in 1879 leaving a widow B and a daughter D. In 1867 P had died leaving a will by which he divised his eight annas interest in the disputed property to his widow A. A question was raised as to whether A took an absolute-interest in the disputed property. It was found by the Judicial Committee that the interest of A was an absolute interest. A died in 1912 and the plaintiffs claimed to succeed to the property as the heirs of A. The defendant in the suit was the daughter of D and the only substantial question raised on behalf was one of limitation. A question of title was indeed raised on her behalf and it was founded on a petition which the two widows had presented in 1895 to the Collector stating that they had made a gift of the entire property to D and asking the Collector to record D as the absolute owner of the property. D was accordingly recorded on 8th May 1896.

The question of title raised on behalf of the defendant failed because it was conceded that the transaction of 1895 could not be relied upon by the defendant as there was no registered document evidencing the gift in question; but the defendant relied upon the possession of D from 8th May 1896. R, however, died in 1901 and it was contended on behalf of the plaintiff that on the death of B, the possession of D was that of a joint tenant and that, therefore, the rule of common law applied with force to the case before the Judicial Committee. In dealing with this question, Lord Cave pointed out the limits of the rule as defined in Culley v. Doe [1840] 11 Ad. & E. 1008 which was as follows:

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:...and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share, will be decided exactly in the same way as if he had brought his ejectment for entirety.

Proceeding Lord Cave said as follows:

In the present case, it is plain that during the life of Rajammal the possession of Duraisani was adverse as against both co-owners, and this being so, there is no reason for holding that when on the death of Rajammal she became legally entitled to a moiety of the property, the character of her possession of the other moiety as against Alangarammal was changed. There having been an ouster of Alangarammal before the death of Rajammal, this ouster continued after her death, and the possession of Duraisani was adverse to Alangarammal throughout.

It seems to me that the present case must fail on the actual passage in the decision of the Judicial Committee which I have just cited. The possession of the defendants was undoubtedly adverse to Tarunpal from 7th May 1908 up to 10th July 1913. There was, therefore, an ouster of Tarunpal before he actually conveyed the eight annas interest in the property to Hari Baksh on 10th July 1913. If this be so, then it follows that the ouster continued after the transaction of 10th July 1913 and the possession of the defendants was adverse to the rightful owner throughout.

It was contended by Mr. S.M. Mullick that the possession of the defendants could not be regarded as adverse to that of Tarunpal. Now Tarunpal was the proprietor. The defendants were tenants under Tarunpal and it seems to me that the doctrine that possession of one co-owner is possession of all co-owners cannot apply to a case between the landlord and the tenant.

It was lastly contended that the learned Subordinate Judge dealt with the question as to the waste lands and that at any rate in regard to the waste lands the defendants cannot be regarded as having acquired a title by adverse possession. I know of no rule to the effect that adverse possession cannot be acquired in respect of the waste lands. As early as 1908 the defendants openly asserted a title to the entire mauza Goalkhar. They have remained in possession on the assertion of that title from 1908, up to the date of the institution of the suit and I must accordingly hold that the defendants have acquired a title to the entire mauza by adverse possession.

The appeal fails and must be dismissed with costs.

James, J.

I agree.