Bansgopal vs Dalchand

Bhutt, J.—This is plaintiff's appeal from the decree dismissing his suit for joint possession.

The subject-matter of the suit consists of two occupancy fields Nos. 12 and 39 of Mouza Sihora. They were acquired by Mulchand, father of the plaintiff. The lower appeal court has found that Moolchand gave half share in the fields to Mahadeoprasad in the year 1914 on condition that he would cultivate the fields, pay the rent and give half share of the produce to him. Moolchand died in the year 1918 and the plaintiff as his successor settled the land with Mahadeoprasad on the same terms, Mahadeoprasad died in 1939 and the same arrangement continued between his brother and successor Sahdeoprasad and the plaintiff. The lower appeal Court also found that the plaintiff was receiving his share of the crops till the year 1943.

Some time In 1943 Sahdeoprasad made an application to the Superintendent, Land Records, for recording the fields in his exclusive name. The change was made in the village-papers on 6-12-1944. The plaintiff was not made a party to these proceedings. The case of the defendants, who are the transferees of the fields from Sahdeoprasad, however, was that in the year 1944, Sahdeoprasad had told the plaintiff that he had no right to the fields. On this ground they asserted that the suit which was instituted on 24th December 1947, was barred by limitation.

According to the lower appeal Court the plaintiff was excluded from possession during the period 6-12-1944 to 24-12-1947 and thus the suit was barred by limitation. This finding is contested in this appeal. It was not disputed before me by the counsel for the defendants that the further question as to whether Sec. 41 of the Transfer of Property Act operated as a bar to the plaintiff's claim did not arise from the pleadings and could not, therefore, be the subject for decision by the lower appeal Court. The finding thereon must therefore be ignored.

It is not disputed that on the finding of the appeal Court below the plaintiff and Sahdeoprasad were co-tenants of the fields. In Mst. Dardosjahan Begum vs. Kazi Shafiuddin ILR (1942) Nag. 781, it was held that in the case of adverse possession between co-tenants it is necessary not only to show that the co-tenant asserting the adverse title had repudiated the title of his co-tenant and is holding adversely to him but also that the fact of this adverse possession has been brought home to his co-tenant either by information given to that effect or by such overt act of exclusive possession as will give notice to the co-owner that an adverse possession and disseisin are intended to be asserted. The same view has been held in Munna Bai vs. Sharda Bai ILR (1946) Nag. 312 and Mohammad Dawoodkhan vs. Banubi ILR (1949) Nag. 862. The question is whether the case is covered by this dictum.

After settling the fields with Sahdeoprasad, the plaintiff began residing at Aligarh. He used to come to Sihora from time to time to get his share of the crops. Therefore, evidently, he had no knowledge of the application made by Sahdeoprasad to the Superintendent, Land Records. The plaintiff doubtless admitted that he had come to Sihora in June 1944 but he also said that he was not informed at that time that his name was removed from the village-papers. He also came in October 1945 when Sahdeoprasad avoided rendering him accounts and ultimately denied his title to the fields it was then that he inspected the village-papers and later applied to the Superintendent, Land Records, on 11-7-1947, for correction of the records. From October 1945 the suit is within limitation.

The lower appeal Court has not given any finding as to the time when Sahdeoprasad asserted a hostile title to the knowledge of the plaintiffs. It seems to have assumed that his possession became adverse from 6-12-1944 solely on the ground that the changes in the village-papers was made on that date. This view is evidently mistaken because the plaintiff was not made party to the proceedings and could not be aware of the change. The conclusion drawn by the lower appeal Court of the plaintiff's exclusion during the period 6-12-1944 to 24-12-1947 is thus without basis and cannot, therefore, be sustained.

The learned counsel for the defendants, however, urged that it was for the plaintiff to prove that he was excluded from possession within the period of limitation and as he was not receiving profits from the year 1943 and his name was excluded from the village-records on 6-12-1944, he should be deemed to have been excluded from possession even from the year 1943. However, as already observed, there must be assertion of hostile title to the knowledge of the co-tenant before he can be deemed to be ousted from possession. The plaintiff has stated on oath that his title was denied to his knowledge only in October 1945 which is within the period of limitation. Defendants, who pleaded that he was excluded in the year 1944 by Sahdeoprasad, did not put him in the witness-box to rebut the plaintiff's version. In these circumstances, the plaintiff's suit must be held to be within limitation.

The result Is that the appeal Is allowed with costs, the decree of the lower appeal court is set aside and that of the Trial Court is restored. Costs of the first appeal shall be on the defendants.