Alijan Mian vs Jatan Thakur and Others

Wort, J.—This appeal arises out of a partition suit brought by the purchaser of the undivided share of defendant second party, who was defendant 5 in the action and is the son of one Adya. There was no question in this suit that the share purchased was the interest of Adya as both the Courts below have found that Adya''s interest was sold more than 30 years ago. The share which has been purchased by the plaintiff is that share in the family property which at one time belonged to Bir who, it will be seen from the genealogical table at the head of the trial Court''s judgment, is the brother of Adya. Now the case has been dismissed substantially on one point that Adya and his son, after his interest in the family property had been sold, went away and lived in another place and took no further interest in the family concerns particularly in the family property. That is what I understand from the judgment of the learned Judge in the Court below in his statement that the story of the defendants that there had been an abandonment was correct.

The defendants had relied however upon the contention that the vendor of the plaintiff had been ousted from his interest in the family property and that they were in adverse possession. The matter I think is concluded by the decision of the Privy Council in Raghoba Baloba Vagh v. Aburao Bhagwantrao Shirole 1929 PC 231 and by reason of the decision of the learned District Judge confirming the decision of the trial Court that there was no actual evidence of ouster. Prima facie therefore the defendant second party and the plaintiff would be entitled to partition subject to limitation as provided by Article 127, Lim. Act. The Judge in the Court below however has decided the case on the question of abandonment and the fact that the plaintiff came into Court asserting actual possession of the interest of himself and of defendant second party, his vendor. Having failed to make that out, and that having been quite clearly disproved, the Courts below disallowed the plaintiff''s claim. The learned Subordinate Judge relied upon a decision of the Calcutta High Court to the effect that where the plaintiff comes forward with the allegation of actual possession and fails to prove that, there is no ground for allowing him to rely upon the presumption that the defendants possession is his possession also.

It is with some reluctance that I come to the conclusion in this case that the Judge was wrong in this regard. Unless there is a definite case of a member of the family relinquishing entirely his interest in the family property or a definite case of ouster established, the mere fact that the plaintiff failed to prove that he was in actual possession does not disentitle him to partition. The Judge in the Court below here has, as I have already said, relied partly on the story of abandonment and partly on the ground which I have just referred to, namely that the plaintiff failed to prove his possession. The only case of abandonment that was made out, it appears, was that Adya, after his interest had been sold, went to live in another place. I can hardly accept that as proof or sufficient in law to establish that that member of the family had relinquished all his interest in the property. There was no question in this case that the family was joint, although it has been argued by the learned advocate on behalf of the respondents that the assertion by the plaintiff that he bought one-sixth interest indicated that the members of the family were separate.

But, as I have said, it is quite clear from the decisions of the learned Judges of the Courts below that the family was joint. That being so, and there being no case of ouster and no sufficient case of the plaintiff or his vendor having relinquished his interest in the property, in spite of the fact that the plaintiff failed to make out the case which he attempted to prove, he was entitled to partition. I say I come to this decision with reluctance having regard to the fact that the plaintiff well knew that he was not in possession as he alleged. But in the circumstances of the case the plaintiff was entitled to partition, and therefore the judgment of the learned Judge in the Court below will be set aside and the plaintiff will be entitled to a preliminary decree for partition. Having regard to the fact that he failed to prove his case which he set out to prove, he will not be entitled to costs.

Leave to appeal under the Letters Patent is granted.