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Judgment
The dispute relates to the possession of a boundary wall on which the rafters of both the adjoining houses rest. The District Munsif decreed for
the plaintiff declaring his title to the wall and the strips of land in continuation thereof. The Subordinate Judge modified the decree by declaring the
joint title of the plaintiff and the defendant to the suit property. We have no doubt that the decision of the Subordinate Judge is based on an
erroneous view of the law.
The two properties of the plaintiff and defendant, respectively, belonged formerly to a single owner who alienated the eastern portion in 1868 to
the plaintiff''s predecessor-in-title under Ex.--C and the western portion to the defendant''s predecessor-in-title in 1871. Ex.--C shows that the
plaint wall was expressly conveyed under it along with the eastern house. The mere fact that subsequent documents under which the eastern house
was transferred do not expressly mention the suit wall cannot be taken as any indication of the fact that the suit wall did not also pass under those
documents, for, the first of these transfers was in execution of a Court decree and the decree-holder presumably had no access to the title-deeds
when describing the property. In 1868 when the wall was expressly conveyed the western house roof also rested on it. The wall was, therefore,
conveyed subject to that easement right.
The fact that the defendant may have plastered his side of the wall or repaired the wall itself does not affect the question of possession. Such
acts which can be referred to the easement right are not adverse to the existing title or rather are not acts of possession at all. To constitute a
dispossession there must in every case be positive acts which can be referred only to the intention of acquiring exclusive control. See ""Possession
in the Common Law,"" Pollock and Wright, pages 85 and 86. The joint title decreed by the Subordinate Judge was not the case of either party.
Possession in such a case is with him who has title.
The decree of the Subordinate Judge must be set aside and that of the District Munsif restored. The appellant will have his costs in this and the
lower appellate Court.