1. The plaintiff sought for a declaration of their title to 4 annas share in 12 bighas 15 kathas of land in Mauzas Gangapur and Dhanbakhara. They claimed that the disputed lands were kept joint after a partition between two brothers, Janki Pandey and Atma Ram Pandey.
2. The plaintiffs are the descendants of one branch of Janki's family and defendants 8, 9 and 10 of another branch; defendants 1 to 7 are the descendants of Atma Ram, but in the Record of Rights the disputed lands were all entered in the names of defendants 1 to 7. Defendants 1 to 7 were also recorded in the landlord's Sherista.
3. The plaintiffs alleged that in 1324 they were refused joint possession of the disputed land by defendants 1 to 7 and so asked for a declaration of their one-fourth share in the lands and for joint possession, or, in the alternative for partition.
4. Defendants 1 to 7 contended that the properties were self-acquired properties of their ancestors and that they had been in exclusive possession of them for more than 12 years.
5. The Munsif found that there had been a partition more than 25 years ago and that the onus lay on the plaintiff to show that the lands in suit remained joint after partition. He found the story of the defendants that the lands were selfacquired properties of their ancestors was not proved, but that the leases and rent receipts stood in the names of the defendants' ancestors, while the plaintiffs were unable to produce any receipt showing joint possession later than the year 1893.
6. He held that the plaintiffs had failed to establish joint possession at the time of or before the survey, and had also failed to rebut the presumption raised by the survey entry and also the presumption of the property being the separata and exclusive property of the defendants after partition. He dismissed the suit.
7. The learned Subordinate Judge on appeal found that the partition took place more than 48 years ago and that the plaintiffs had shown by receipts that they held joint possession until 1300 F.S and so they had the advantage of the presumption as to continuity of possession as co-owners and, exclusive possession however long continued by other co-owners not being able to create any title in their favour as against the plaintiffs, he found that the silent exclusive possession by defendants 1 to 7 would not take away the title of the plaintiffs as the possession of the defendants would be construed as on behalf of their co-owners, the plaintiffs. He allowed the appeal.
8. Before me it is contended that, though the principle of law propounded by the Subordinate Judge is correct, namely that long and exclusive possession by a co-tenant cannot be held to be adverse to that of the other oo-owners, still the circumstances of this cases how that the exclusive possession of the defendants practically amounted to an ouster. The learned vakil relies on the case of Gangadhar v. Parashram Bhalchandra(1) where it was held that sole possession by one tenant-in-common continuously for a long period without any claim or demand by any person claiming under the other tenant-in-common is evidence from which an actual ouster of the other tenant-in-common may be presumed. Lord Denman in Culley v. Doe d. Taylerson(2) said:
“No doubt exclusive receipt of profits continuously for a long period may point to an ouster, but the Court must be satisfied that such taking of profits is an indication of a denial of rights in other co-tenants to receive them.”
9. Similarly, in Ayennessa Bibi v. Sheikh Isuf(3) it was held that to establish adverse possession by one tenant-in-common against his co-tenants there must be an exclusion or an ouster and the possession subsequent to that exclusion or ouster must be for the statutory period. There it was mentioned that the circumstances that have to be taken into consideration are among others, the relationship of the parties, their position, the mode of life in the particular community to which the parties belong, the character of the property, and other circumstances of a similar character.
10. It is urged by Mr. Parmeshwar Dayal for the appellants that in the present case the parties belonged to the same village and were all agriculturists: that it was found that for 25 years although the partition had been 50 years ago, the plaintiffs had not been in possession, and that in 1912 at the last survey and settlement operations after contest between the parties defendants 1 to 7 were alone recorded. It is true that where joint possession has been found it may be presumed to continue but the only evidence of joint possession is provided by a few receipts up to the year 1893, and since then there is not the least sign that the plaintiffs had any joint possession. The evidence therefore of joint possession after the partition is very slender. On the other hand considering that defendants 1 to 7 alone are entered in the landlord's Sherista and considering that they alone are recorded in the Record of Rights while as Mr. Parmeshwar Dayal points out, that the parties all lived in one village and were agriculturists, I think that it can be safely inferred and believed that all the circumstances of the case point to the fact that there was an exclusion of the plaintiffs by the defendants and an ouster of the plaintiffs. The entry in the Record of Rights was not rebutted and I therefore allow the appeal and setting aside the decree of the lower appellate Court, restore that of the Munsif.
V.S/R.K
11. Appeal allowed.