Mitter, J.:— The action, out of which this appeal has arisen, was an action for partition of a certain shikmi tâluk, which, formed the estate of one Bochai Sardar, after whom the tâluk was named. There were several defendants” to the suit. The plaintiff, Sheik Taayib Sardar, claimed 5 gandâs 2 karhâs 1 krânt and 10 tils share in the tâluk. According to the plaintiff, defendants Nos. 1 to 5, who are the appellants before us, namely the Banerjis of Muraparha, have only a six annas share of the tâluk. According to the plaintiff, defendants Nos. 6 to 9 have got 19 gandâs 3 karhâs 7 tils share in the tâluk. Defendants Nos. 10 and 11, according to the plaintiff's case, have got 3 gandâs and 1 krânt share and defendants Nos. 12 to 33 have got 8 annas 10 gandâs 2 karhâs 3 tils and the plaintiff himself has got 5 gandâs 2 karhâs 1 krânt 10 tils share in the said tâluk. The Sub-ordinate Judge has granted a preliminary decree for partition and has directed a commissioner to make the allotments according to the respective shares of the parties.
Against this decision, the present appeal has been brought by defendants Nos. 1 to 5 and the contention which has been advanced on their behalf is that the defendants appellants should have been held entitled to a partition of the share which they claimed, namely, 14 annas 17 gandâs 1 krânt and 13 tils share in the said tâluk. There is no dispute before us with reference to the share of defendants, Nos. 6 to 9 and defendants Nos. 10 and 11. The dispute, therefore, really centres round the share of the plaintiff, which has already been mentioned as 5 gandâs odd and the share of defendants Nos. 20, 22 to 24 and 26 to 33 in so far as this appeal is concerned. There is a cross-objection by some of the defendants who will be named hereafter and which will be discussed later on. The cross-objection is by defendants Nos. 12 to 19 and defendants Nos. 21 and 25. The cross-objection will be dealt with after we have decided the appeal.
The two substantial contentions which have been raised before us in this appeal are: (1) that the plaintiff and defendants Nos. 20, 22 to 24 and 26 to 33 have failed to make out their title to 5 gandâs odd and 6 annas odd shares respectively of the shikmi tâluk in question; and (2) that, even if they have established their title with reference to their respective shares, that title has been extinguished by adverse possession for more than the statutory period. Consequently, it is contended that the plaintiff's claim should have been dismissed and no declaration should have been made in favour of defendants Nos. 20, 22 to 24 and 26 to 33. On the other hand, a decree should have been given declaring defendant-appellants' title to 14 annas 17 gandâs odd share of the tâluk. On the question of title, as also on the question of adverse possession, the case of the plaintiff and that of the defendants Nos. 20, 22 to 24 and 26 to 33 must be discriminated. We propose to deal in the first place with the contention of the appellants, in so far as the plaintiff's share is concerned, it being observed that the plaintiff and some of the other defendants in the group of defendants Nos. 20, 22 to 24 and 26 to 33 have been represented by separate advocates before us. It is to be observed, at the outset, that the record-of-rights which was prepared within 12 years of the institution of the suit, which was laid on the 24th February, 1927, is in favour of the defendants appellants and it shows that they are in possession of 14 annas 17 gandâs odd share, which they have claimed by their written statement in the suit. It becomes, therefore, necessary for the plaintiff to establish that he is entitled to 5 gandâs share in this tâluk, by offering such evidence as would rebut the presumption arising from the entry in the record-of-rights, namely, the statutory presumption under section 103(b) of the Bengal Tenancy Act. The Sub-ordinate Judge has come to the conclusion on a consideration of oral evidence in the case that the plaintiff has established his title to 5 gandâs odd share in the tâluk. It has been contended, on behalf of the appellant, that there is not sufficient evidence to rebut the presumption in favour of the defendants, arising out of the record-of-rights, and it is argued that the only evidence that has been given to show the relationship of the plaintiff with Bochai Sardar, the admitted owner of the tâluk, is the evidence of the plaintiff himself, and that, consequently, it should be held according to the submission made by the appellants' that his mere statement is not sufficient to rebut the presumption of the record-of-rights. The point to be noticed in this connection is that the plaintiff states in his examination-in-chief that his share in the disputed tâluk is 5½ gandâs 1 krânt and 10 tils. He gives, in cross-examination, the relationship between Bochai Sardar and these defendants and the plaintiff in this case. He says this:
Kader's father was Habibulla Sardar. Habibulla has six sons—Kader, Rahim, Ala Bux, Karim, Nabu (Naku (?)) and Nur Bux. Nawab Ali is Nur Bux's son. Karim has 5 sons—Kiyamaddi, Niyamaddi, Hafijuddi and two others whose names I do not remember. They are the younger ones. Nur Bux has two other sons—Imam Ali and Mukim. Adam Ali is Mukim's son. Imam Ali's sons are Mafi and Kabiluddi. Nabu's sons are Khoda Bux and Madari. Habibulla, Rabiulla and Ramjan were three brothers. Ramjan's son is Kantu. Boran is Kantu's son. Boran has three sons—Mehar, Madar Bux and Osman. Kantu's sons are Ainuddi, Minuddi and Jaimuddi. Ainuddi has three sons—Ali, Selim and Elim. Rabiulla's son is Amir. Amir's son is Kathu. Uzir's father was Kadu. Rahim's sons are Tukku and Asraf Ali (vide page 21, Part I of the Paper-book).
Ramjan, Rabiulla and Habibulla are the three sons of Bochai Sardar. Having regard to the relationship between the parties and there being no issue in the court below as to the precise extent of the share of the plaintiff, it is difficult for the appellants now to contend, as it is contended, that the plaintiff has not established what the precise share is which he has got in the tâluk in question. Some endeavour has been made to throw doubt on the relationship, as deposed by the plaintiff, of the different defendants and the plaintiff himself and Bochai Sardar, on the ground that it seems somewhat singular that there should be no female heirs of Bochai Sardar in this long period between his death and the date when the plaintiff was deposing. We do not think that is an argument which can be accepted, for it is possible, in the absence, of evidence to the contrary, to believe what the plaintiff has stated with reference to this genealogy, and the plaintiff said with reference to this genealogy that it is not improbable that there should not be a female heir in a particular family, the members of which are descended from a particular person. It is next said that the share would not be as much as the plaintiff claims, having regard to the fact that, from the copy of the registered kabâlâ, dated the 1st April, 1855, which is printed at page 1, part II of the paper-book, it would appear that there are other persons in the line of descent from Bochai Sardar and reference is made in particular to the two names in the bond of page 1, part II of the paper-book, namely, Lal Sardar and Soban Sardar, who do not figure in the genealogy as given by the plaintiff. It is difficult to allow this contention to be raised now, for this document was never put to the plaintiff and the plaintiff was not asked, with reference to this document, to say as to whether Bochai had any other heirs as named in this document. In these circumstances, the evidence of the plaintiff with regard to the heirs of Bochai Sardar being left uncontradicted, we think it is sufficient to establish the plaintiff's title to 5 gandâs odd share.
The next point raised on behalf of the appellants is that the plaintiff's title to 5 gandâs share has been extinguished by adverse possession of the defendants for more than the statutory period. The purchase by the defendants Nos. 1 to 5 from the entire body of co-sharers (descendants of Bochai Sardar) was so far back as the year 1855. The purchase was only in respect of 6 annas share. But in their written statement in paragraph 8, the defendants said that they had 14 annas 17 gandâs 1 krânt and 13 tils share, six annas of which was purchased under the deed of sale of 1855 and the 8 annas 17 gandâs odd share was taken possession of by them upon the basis of an intended deed of sale, which deed could not be executed by reason of the circumstances mentioned in the said paragraph. The defendants have not produced the deed of sale with reference to 8 annas odd share and consequently they fall back on the question of adverse possession or ouster of the co-sharer. The learned advocate for the appellants has criticised the following finding of the Sub-ordinate Judge on the question of ouster. The Sub-ordinate Judge said:
The question of limitation, however, depends upon the question whether the Sardars are the co-sharers of the defendants, because there can be no right by adverse possession as against a co-sharer.
It is said that this is an inaccurate statement of law and this has influenced the decision of the Sub-ordinate Judge with regard to the question of ouster or adverse possession. It seems to us that this comment is just and, in our view, the Sub-ordinate Judge has stated the proposition too broadly, when he says that there can be no, right by adverse possession as against a co-sharer. It would appear, from the authorities to which reference will presently be made, that the true legal position is that there can be no adverse possession by one co-sharer as against others until there is ouster or exclusion. It becomes necessary to examine the true legal position with reference to some leading decisions of their Lordships of the Judicial Committee of the Privy Council. The first case to which reference may be made is the case of Corea v. Appuhamy . In that case Lord Macnaghten quoted a passage from the decision of Vice-Chancellor Wood in Thomas v. Thomas . The Vice-Chancellor expressed himself thus:
Possession is never considered adverse if it can be referred to a lawful title.
If that passage stood alone, it might have been contended with regard to this case that the possession, of a co-sharer can never become adverse. But, at page 236 of the report, Lord Macnaghten observes this:
The two learned Judges in the Court of Appeal did not adopt in its entirety the suggestion of the trial judge. They both held that Iseris entered as ‘sole heir’, and that his title has been adverse ever since he entered. They held that he entered as ‘sole heir’, apparently because he had it in his mind from the first to cheat his sisters. But is such a conclusion possible in law? His possession was in law the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result.
Their Lordships held that the possession of a co-sharer becomes adverse to other co-sharers from the moment when there is an ouster of the other co-sharers. Their Lordships had next to consider the question in another case, namely, the case of Muttunayagam v. Brito , and Lord Dunedin referred to Corea's case and obsereved as follows:
This, however, depends on what was the character of C. Brito's possession as a matter of right. The learned District Judge seemingly overlooked the case of Corea v. Appuhamy , which the learned judges in the Court of Appeal took as decisive of the question. In that case it was held by this Board that the possession of one co-parcener could not be held as adverse to the other co-parceners. Lord Macnaghten, who delivered the judgment, cited the dictum of Wood V.C in Thomas v. Thomas : “Possession is never considered adverse if it can be referred to a lawful title.”
In a case from India, namely, the case of Hardit Singh v. Gurmukh Singh , their Lordships of the Judicial Committee applied the doctrine as laid down in the case of Corea v. Appuhamy to this country and it is useful to reproduce what was said by Lord Buckmaster in delivering the judgment in the Judicial Committee:
The finding of the two courts that the property was originally joint is not challenged, and the only question is that raised by the second issue. Upon this the Sub-ordinate Judge of Ferozepore found in favour of the appellants, and his judgment was reversed by the Chief Court of the Punjab. In considering the soundness of this latter judgment it is important to bear in mind certain facts with regard to the possession of joint property, which distinguish it from property separately held. In the former case the phrase ‘exclusive possession’ has an equivocal meaning; in the latter it has not. If by exclusive possession of joint estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family. Uninterrupted sole possession of such property, without more, must be referred to lawful title possessed by the joint holder to use the joint estate, and, cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members: Lachmeswar Singh v. Manowar Hossein and Corea v. Appuhamy . If possession may be either lawful or unlawful, in the absence of evidence, it must be assumed to be the former. The fact, therefore, that this village Bhagsar has been occupied for many years by the defendants and their predecessors, are insufficient to prove exclusion of the plaintiffs without further evidence.
In the last case before their Lordships of the Judicial Committee of the Privy Council, namely, the case of Govind Rao v. Rajabai , Sir John Wallis explained the case of Corea v. Appuhamy and said this:
It was contended by Mr. Dube that, if they were put joint family property, they were held by the parties as tenants in common, and that the possession of one tenant in common was not adverse to the other, citing Corea v. Appuhamy . In that case, however, what was decided by the Board was that the possession would not be adverse until ouster.
In that case of Varada Pillai v. Jeevarathnammal their Lordships quoted a passage from Culley v. Doe to the following effect:
Generally speaking, one tenant in common cannot maintain an ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant in common, has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the judge will direct the jury to take into, consideration whether they will presume that there has been an ouster……………. and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety.
The true rule, which is deducible from these authorities, is that even the possession of a co-sharer can be adverse to the other co-sharer after there is an assertion of a hostile title by one co-sharer against the other and to the knowledge of the latter. This being the true view of the law, what we have to consider is whether there is any evidence in this case, so far as the plaintiff is concerned, that there has been an exclusion or ouster for more than the statutory period of 12 years. It has been conceded on behalf of the respondent that there has been an assertion of a hostile title by defendants Nos. 1 to 5, who are purchasers from some of the co-sharers, who are the descendants of Bochai Sardar, when the settlement proceedings terminated. But that does not assist the appellant, as such assertion was made within 12 years of the suit. The question, therefore, is whether there has been an assertion of hostile title to the knowledge of the plaintiff by defendants Nos. 1 to 5 or their predecessor-in-interest beyond 12 years of the suit. The burden of proving adverse possession or ouster is undoubtedly on the appellant, who claims to defeat the title of the plaintiff by adverse possession. In support of this case of adverse possession, the defendant appellants have relied in particular on cheque-murhis which have been marked as Ext. F26 of the year 1314, corresponding to 1907, and Ext. E15 of the year 1316, corresponding to 1909, and on a mortgage bond, Ext. K, dated 3rd Shrâban, 1324, corresponding to 1917. With regard to the cheque-murhis which were written beyond 12 years of the suit, it appears to be the case of the defendants that they were signed by the present plaintiff or his predecessor-in-interest and contains an admission that the defendant appellants have 14 annas 17 gandâs share in the tâluk. It is to be noticed that these cheque-murhis were never put to the plaintiff. They were not shown to him. No opportunity was given to the plaintiff to say whether the cheque-murhis contained his signature. Reliance has also been placed on a number of kabuliyats which contained the admission of the members of the Sardar family to the effect that defendants Nos. 1 to 5 are the owners of the 14 annas odd gandâs share. These documents begin from the year 1289, corresponding to 1882, and end with year 1304 and it is said that they are sufficient to constitute adverse possession for more than the statutory period. It appear that these are mere recitals by other parties in documents to which the present plaintiff or his predecessors-in-interest were no party and the plaintiff is not bound by any statement made in documents with which he has no concern. Unless it is shown that plaintiff had knowledge of these kabuliyats, it cannot be said that title of defendants Nos. 1 to 5 was asserted to the knowledge of the plaintiff so as to defeat his title, if the adverse possession was exercised for more than the statutory period. Then certain talab bâkis were also produced. They are, after all, the printed books of defendants Nos. 1 to 5. It has not been shown that the plaintiff had ever knowledge of the entries made in them. Lastly it is said that the zemindars, namely, the landlords, of defendants Nos. 1 to 5 recognised their interest in the shikmi tâluk to consist of 14 annas odd gandâs share. That again is not sufficient, until it is shown that the plaintiff had knowledge of the same. It is argued, for the respondent that the plaintiff had a very small share and that, as the rent in respect of his share was never demanded from him by the defendant appellants, nor was there any attempt made by the landlords to do so, no inference of adverse possession or ouster can be drawn against him from those circumstances. We are of opinion that these circumstances are not sufficient to constitute an ouster.
It remains to notice an argument which has been raised on behalf of the respondent, namely) that there can the no ouster when it is shown that the co-sharer against whom ouster is pleaded was in possession of a part of the joint property. It is pointed out that the kha schedule property consisted of homestead land belonging to all the co-sharers of the tâluk and the homestead land formed part of the shikmi tâluk and it is argued that, as the plaintiff was in possession of one portion of the joint property and the defendants were in possession of the other portion, that is sufficient to show that there has been no ouster or exclusion from the property in possession of the defendants so far as the plaintiff is concerned. No authority has been cited for this proposition, but we have already indicated that, taking the law to be as we have said, it has not been shown, to our satisfaction, that there has been any ouster of the plaintiff in respect of his share. We, therefore, affirm the finding of the Sub-ordinate Judge and his decree so far as the plaintiff respondent is concerned.
The case of defendants Nos. 20, 22 to 24 and 26 to 33, in respect of whom the Sub-ordinate Judge has granted a declaration to the extent of their 6 annas 10 gandâs share odd, stands on a somewhat different footing. It has been argued for the appellants that none of these defendants have established by evidence that the record-of-rights is wrong. Beyond filing a written statement, these defendants have not cared to give their oath that their share in the disputed property which is sought to be partitioned is 6 annas odd gandâs. The position of a defendant in a partition suit is like that of a counter-claimant and before a decree can be made in his favour declaring a particular share which he claims he must establish by evidence that he has got the interest in the joint property, which he claims and in respect of which he seeks, partition. It has been argued on behalf of these respondents, one of whom only was represented by the Deputy Registrar, that there was an admission in paragraph 9 of the written statement of the defendants-appellants in respect of the shares of these defendants; and the passage which is relied on is to the following effect:—
Neither the plaintiff nor the defendants Nos. 12 to 33 have any shikmi right in any land of the shikmi tâluk named Bochai Sardar, nor do they possess any land of the said shikmi tâluk in exercise of any shikmi right. The entire shikmi right, which they once had, has completely been extinguished by sale and by adverse possession for more than 12 years.
It is difficult to say, from this statement, that there is a clear admission of the title of the defendants Nos. 12 to 33 in this written statement. It, therefore, lay on the defendants to establish their title. In our opinion, they have failed to do that, as they have not entered in the witness-box to say what was their share and further the record-of-rights is entirely against them. In this view, we are of opinion that the decree of the Sub-ordinate Judge, so far as defendants Nos. 20, 22 to 24 and 26 to 33 are concerned, cannot be sustained and it must be varied in view of the record-of-rights in this way that the defendants Nos. 1 to 5 are entitled to, 14 annas 11 gandâs 2 karhâs and 3 tils share in the plaint lands. The decree of the Sub-ordinate Judge must be varied in this way.
It remains now to consider the cross-objections which have been filed by defendants Nos. 12 to 19 and 21 and 25. So far as defendants Nos. 18, 19, 21 and 25 are concerned, there are admissions in documents, Exts. A(2) and A(3), which carry us back to the year 1895, long beyond 12 years of the suit to the effect that the defendant appellants have got 14 annas odd share in the tâluk sought to be partitioned and the cross-objections have not been seriously pressed so far as these defendants are concerned and we do not think that there is any substance in them, seeing that there has been an assertion of hostile title and acknowledgment of this title by these defendants Nos. 18 to 19, 21 and 25. With reference to defendants Nos. 12 to 17 it appears that defendant No. 12 is in the same position as the other defendants and from the admission by him of the title of defendants Nos. 1 to 5 to 1 the extent of 14 annas share long before the statutory period. But it is stated that the kabuliyat, which was executed by defendant No. 12, cannot affect the rights of defendants Nos. 13 and 14. Apparently this discrimination or distinction was not made before the Sub-ordinate Judge and the Sub-ordinate Judge, dealing with this part of the case, says, this:
The defendants Nos. 12 to 14 were owners of 11½ gandâs share and they executed the kabuliyat, Ext. A13.
No distinction seems, to have been drawn with reference to the case of defendant No. 12 on the one hand and that of defendants Nos. 13 and 14 on the other hand. It is difficult to allow an objection of this kind to be raised here for the first time. It would also appear that these defendants, namely, defendants Nos. 13 and 14,-have not entered in the witness-box to say definitely what their share is in the tâluk in question.
With regard to the cross-objection by defendants Nos. 15 to 17 the position is this: with reference to defendant No. 15 there was a kabuliyat showing his admission of the title of defendants Nos. 1 to 5 to the 14 annas and odd gandâs share. This kabuliyat was for a period long anterior to 12 years before the suit. Here again no distinction has been made between the case of defendants Nos. 15 and 16 and 17. We are of opinion that the cross-objections by these defendants are unsubstantial and must be dismissed.
The result, therefore, is that the decree of the Sub-ordinate Judge is varied by declaring the share of defendants Nos. 1 to 5 to be 14 annas 11 gandâs 2 karhâs and 3 tils. The rest of the decree of the Sub-ordinate Judge will stand.
It must be mentioned that there was an application on behalf of defendants Nos. 1 to 5 for the reception of additional evidence. We do not think that any ground has been made out for the reception of such evidence at this stage. The application is, accordingly, rejected. The costs for the printing of the additional papers need not be assessed.
The plaintiff is entitled to the costs of this appeal—the hearing-fee is assessed at three gold mohurs.
The cross-objections of the defendants are dismissed with costs—hearing-fee being assessed at three gold mohurs.
McNair, J.:— I agree.
Appeal allowed, decree varied.
A.A