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Judgment
Viswanatha Sastri, J.—Defendant is the Appellant. The suit was for partition of 1759/2880 share of a house in Kurnool which originally belonged to one Hassu Bhai. There was a prior suit for partition, O. S. No. 565 of 1931, among the heirs of Hassu Bhai, which resulted in a preliminary decree dated 15-12-1931 declaring the shares of the Plaintiff and the several Defendants in that suit. No further steps were taken to work out the rights of the parties as declared by the preliminary decree.
The Plaintiffs claim title to a fractional share of the house under two sale deeds, Ex.A-1 dated 23-9-1938 and Ex.A-3 dated 20-11-1948,- from Defendants 2, 3, in O. S. No. 565/1931. The Defendant purchased the share of the Plaintiff and 5 to 9 in O. S. No. 565 of 1931 under Ex.B-1 dated 23-2-1934 and the share of Defendant 4 in that suit under Ex.B-5 dated 22-7-1945.
Under Ex.B-2 dated 25-6-1937 there was a transfer of the municipal registry in the name of the Defendant. Subsequently on 11-7-1950 the municipal registry came to be made in the joint names of the Plaintiffs and the Defendant:
The defence to the Plaintiff''s suit for partition was two fold: (1) that the suit was not maintainable in view of the prior decree for partition in O. S. No. 565 of 1931, and (2) that the title of the Plaintiffs had been extinguished by the adverse possession of the Defendant for over 12 years from 25-6-1937 when his name was entered in the municipal registers. It might be mentioned that the present suit was instituted on 20-9-1949.
There is no substance in the contentions of the Appellant. The decree in O, S. No. 565 of 1931 merely declared the shares to which the heirs of Hassu Bhai who were parties to that suit, were entitled. The vendors of the Plaintiffs were some of the Defendants to that suit. An application made in a partition suit after the passing of a preliminary decree by which the shares of the parties were defined in order that the proceedings may be continued for the purpose of actually effecting a partition and that a final decree for partition by metes and bounds may be passed, is not governed by Article 181, Limitation Act.
A partition suit in which a preliminary decree has been passed is still pending suit and the rights of the parties have to be adjusted at the time of the final decree. If it were necessary, I would treat this suit as an application for the passing of a final decree in O. S. No. 565 of 1931.
At the same time, it cannot be doubted that when a preliminary decree declaring a right to partition or the shares of the parties has not been given effect to by the parties proceeding to partition in accordance with it and the property continues to be jointly held by the co-sharers, their right to partition continues. So long'' as they continue to be interested in the joint property as co-sharers, it is competent for them to bring a suit for declaration of their right and for partition in case their right to partition is denied or challenged.
In the present case, even though the Plaintiff in O.S. No. 56S of 1931 obtained a preliminary decree declaring his share in the common property the co sharers, who were the heirs of Hassu Bhai were content to remain as co-sharers without effecting partition of the house, in these circumstances, it is open to Plaintiffs as purchasers of the interest of some of the co-sharers, who were Defendants in O. S. No. 565 of 1931, to institute the present suit for partition against the Defendant, the purchaser of the interest of the remaining co-sharers.
The preliminary decree in the prior suit for partition was in form and substance, merely a declaratory decree pronouncing that the then Plaintiff was entitled to a particular share of the house on a general partition being made. Such a decree did not change the character of the property which continued to be a joint estate till an actual partition by metes and bounds. The parties continued to hold the house as before unaffected by the passing of the decree and in the shares to which they were entitled under the Mohammadan law.
I am therefore of opinion that the present, suit is not barred by res judicata. The fact that a Defendant in a partition suit is for some purposes considered to be in the position of a Plaintiff does not mean that even if the Defendant does not want a partition he should at his peril get a separate allotment of his share in the partition suit on pain of losing his rights as a co-sharer if he does not choose to do so.
It might be that a Defendant in a partition suit has the liberty given to him to seek a partition and separate allotment of his share but the law does not oblige him to do so. If there had been a final decree in the prior partition suit allotting certain property for the share of the Plaintiffs or their vendors and directing them to be put in possession of the property so allotted then Section 47. CPC might bar a separate suit and the remedy of the Plaintiffs would be to execute the decree for partition. That is not the position in the present case. See Kizhakkiniyakath Kunhi Koyamutty Naha Haji Vs. Veeran and Others, .
The further contention of the Appellant that the Defendant had acquired an exclusive title to the house by reason of his adverse possession from 1937 is also untenable. In 1934 the Defendant purchased the fractional share of the Plaintiff in O. S. No. 565 of 1931. On 25-6-1937 he got his name entered in the municipal registry. By his purchase the Defendant acquired the undivided share of his vendor and no more.
under Section 44, Transfer of Property Act, where one co-owner transfers his share of immovable property the transferee acquires as to such share and so far as it is necessary to give effect to the transfer the transferor''s right to joint possession or other common enjoyment of the property and to enforce partition of the same. The possession of the Defendant was traceable to a lawful title derived from his vendor, who was himself a co-sharer.
It is well-settled that the possession of one co-sharer is in law the possession of his co-owners and unless there is an ouster that is to say denial of the rights of the other co-owners over the property to their knowledge the co-owner in possession cannot plead that this possession was adverse to the other co-owners. Mere non-participation in profits of the common property by one co-sharer or exclusive occupation of the property by the other, is not, by itself, sufficient to constitute an adverse possession.
It must be proved that such exclusive possession was in denial of the title of the other crowners arid the latter had notice thereof, either direct or inferable from notorious acts and circumstances. The mere occupation of common property without more would be referable to the lawful title possessed by the co-owner to use the common property and would not be regarded as an assertion of a hostile title or of a right to hold It as his own separate property.
The authorities on this subject are numerous and I need only refer to three of them. Ittappan v. Mana Vikrarna ILR 21 Mad 153 (B); Godavari Lakshminarasamma Vs. Godavari Rama Brahman and Others, . This principle was applied to the case of Mobtunmadan co-sharers in Mubarak-un-nisa v. Mohammad Razakhan ILR 46 All 377: (AIR 1024 All 3) (D).
In the present case the Defendant himself regarded his possession as not being hostile or adverse to the co-sharers of his vendors as might be seen from Ex.B-5 dated 22-7-1945 under which he took a sale of the share of the co-sharer one of the heirs who was a Defendant to O. S. No. 565 of 1931. The inclusion of the name of the Defendant in the Municipal Registry in 1937 did not amount to a ouster of the other sharers.
For these reasons. I am of the opinion that the second appeal fails and nvusi, be dismissed with costs. No leave.