Salemamad Haji Abdul Shakur, deceased''s heirs Mahomed Sidiq Salemohmed and Others vs Haji Hasam deceased by his sons and heirs Haji Ahmed Hasan and Others

Shah, C.J.—The Respondents'' father, Haji Hasam Osman, purchased at a Court sale in October 1924 the one-fourth share of one Haji Suleman Nurmohmed, one of the co-owners in an open piece land, of which the remaining three-fourths were owned by the Defendants. After Haji Hasam''s death his sons brought a suit, being suit No. 114 of Samvat 2002 for a partition and separate possession of their one-fourth share in the property, and the claim was disputed by the Defendants on grounds, inter alia, that the suit was barred by limitation and by adverse possession of the Defendants. These contentions were upheld by the trial Court and the first appellate Court, but in second Appeal No. 4 of 1950 Mr. Justice Jhala held that the onus of proving that the suit was barred by adverse possession was on the Defendants (present Appellants), that Article 138, Limitation Act did not apply and as in his view the parties were possibly misled and therefore did not adduce evidence properly, he allowed the appeal, and remanded the suit for a fresh trial. After the remand, some more evidence was adduced by the parties and the learned trial Judge recorded a finding that the suit was barred by adverse possession and by limitation. However in paragraph 12 of his judgment, the learned Judge observed that the Defendants did not lay stress on the plea of adverse possession and that as the property was a vacant piece of land and was lying unused, no question of adverse possession arose, observations which are inconsistent with the finding he has recorded on issue No. 4. On appeal the learned Assistant Judge held that Article 144, Limitation Act applied, that the Defendants had failed to prove their adverse possession and that the suit was also not barred by limitation. In this view he reversed the trial Court''s decree and passed a preliminary decree for partition and it is against this decree that the present appeal has been filed.

The contention of Mr. Mehta appearing for the Appellants is that Article 138 applies to the present case and not Article 144. Article 138 relates to a suit for possession of Immovable property by a purchaser at a Court sale when the judgment-debtor was in possession at the date of the sale, and the period of limitation is twelve years from the date when the sale becomes absolute. However the Article contemplates cases where the auction-purchaser sues the judgment-debtor or those claiming under him and not where, as in the present case, he sues the co-sharers of the judgment-debtors who are in possession by virtue of their title to the land and who do not claim through the judgment-debtor. There is authority for this proposition in - Biswanath Chakravarti Vs. Rabija Khatun and Others, ). That was also a case of a purchaser at a Court sale of the share of a Mahomedan co-sharer in certain land. It was held that the purchaser at a Court sale could sue the co-tenants of the judgment-debtor, that Article 138 will not apply because that Article applies only against judgment-debtor and persons claiming through him and further that the suit was governed by Article 144. In - Hassan Ammal Bibi and Others Vs. Ismail Moideen Rowthar and Others, , a suit for partition was brought by an assignee of the interest of a decree-holder purchaser of his Judgment-debtor''s right in a pro(SIC) Plaintiff was the assignee of the purchaser at a Court sale, and that Article 144 and not Article 138 applied to such a suit. That is the correct view and with respect I agree with it, and hold that Article 138 is not applicable to the present case.

Mr. Mehta has urged that the purchaser in this case has never attempted to recover possession, that he was bound to recover possession within twelve years of his purchase, and had he sued the judgment-debtor after twelve years the suit would have been barred by limitation and therefore by a parity of reasoning a suit, brought, against the co-owners of the judgment-debtor filed twelve years after the purchase at the Court auction, should also be held as barred by limitation. The contention loses sight of the fact that the suit here is against co-owners, that the purchaser of one co-tenant''s interest acquires by virtue of his purchase the same rights and status as the co-owner, and that the possession which the other co-tenants had of the property was not only on their behalf but also on behalf of the judgment-debtor and therefore of the purchaser at a Court sale. His claim could be defeated only by the other co-tenants proving their adverse possession against him.

In ''Mt. Zahida Begam v. Mumtaz Ali'' AIR 1932 Oudh 122 (C), the Plaintiff had purchased the share of a daughter in his father''s property and had sued for a partition. There was no allegation that the daughter had been dispossessed from the property in the suit. It was held that Article 144 and not Article 142 applied. Mr. Mehta has in this connection relied upon -''Udi v. Mammal AIR 1924 Lah 682 (D)'', where it was held that a transferee or an assignee cannot by the mere fact of transfer or assignment become a co-sharer if his rights as such are denied by the other co-sharers. There the suit was brought for'' possession of a one-tenth share in a certain, house which the Plaintiff claimed to have purchased from one Taiji and the Defendants who were the other co-sharers denied that Taiji had any share in the house or had sold it to the Plaintiff. The title of the Plaintiff''s vendor was disputed altogether and the decision mainly turned upon this particular circumstance. Therefore this case is distinguishable from the present one on the facts. The rulings in Biswanath Chakravarti Vs. Rabija Khatun and Others, and in Hassan Ammal Bibi and Others Vs. Ismail Moideen Rowthar and Others, distinctly decide that a purchaser at a Court auction of a co-owner''s interest in Immovable property has the same rights and status as the judgment-debtor at the Court sale and that he is as much a co-owner as the latter, and with respect I agree with these decisions. The facts in ''Biswanath''s case (A)'', are almost similar to those of the present case and the ruling is a direct authority on the points raised.

Mr. Mehta also relied on Nizamuddin and Others Vs. Mangal Sen and Another, ). That was a converse case where the purchaser of the property held in common by several tenants-in- common had purchased it from one of the tenants-in-common openly and with the knowledge of the other co-tenants, and he was taken to have repudiated the title of Ors. , and it was therefore held that the possession of the other co-tenants became adverse to him from the time of his purchase. That is not the case here and the present Respondents'' father had purchased'' only the share of one of the co-tenants. The ruling is therefore clearly distinguishable and does not apply.

Following the rulings in Biswanath Chakravarti Vs. Rabija Khatun and Others, ''; Hassan Ammal Bibi and Others Vs. Ismail Moideen Rowthar and Others, and AIR 1932 Oudh 122 (C), I hold that the suit is governed by Article 144, Limitation Act and the Plaintiff will be entitled to have his share-separated by partition, unless his title was defeated by adverse possession of the Defendants for twelve years prior to the suit. Mr. Mehta has frankly conceded that having regard to the nature of the property, it is not possible, to contend that the Defendants had established their adverse possession. The property is a vacant piece of land and was walled very recently. It was not put to any specific use and above all there was no disclaimer or denial of the Plaintiff''s title at any time prior to the suit which is an essential factor to constitute adverse possession against a co-owner. The suit is therefore not barred by limitation. For these reasons I confirm the lower appellate Court''s decree and dismiss the appeal with costs.