Ray, J.:— This is a plaintiffs' second appeal against the appellate decree of the Additional District Judge of Saran upholding the judgment of the trial Court in dismissing the suit with costs.

The suit in which this appeal arises was instituted by four plaintiffs of whom plaintiffs 2, 3 and 4 are donees in respect of a part of the suit property from the plaintiff no. 1. The allegations on which the cause of action for the suit is based are as follows: One Harnam Rai had four sons Mahip Rai, Nidha Rai, Surat Rai and Paryag Rai. The plaintiff no. 1, Dipnarain Rai claims to be the grandson of Surat, he being the son of; Thakur Rai, since deceased. Of the aforesaid four brothers Paryag Rai separated from the family and we are not concerned with his branch in this appeal. According to the plaintiffs, the other three brothers Mahip, Nidha and Surat and their descendants continued to be joint in mess and estate. Nidha died issueless in the state of jointness. Mahip and two out of his three sons died in a state of jointness leaving Banarsi Rai surviving. Similarly in the branch of Surat, the plaintiff is the only surviving male member, plaintiffs 2 to 4 being the sons of his two sisters Bhagwati Kuar and Shyamsunder Kuar. While the plaintiff, his father Thakur Rai and Banarsi were living as members of a Hindu Mitakshara joint family, the plaintiff no. 1 went to serve as a member of the Calcutta police and in 1909 he went away to South America. His father ??? died before the revisional survey, Banarsi Rai was recorded in that survey in respect of the entire joint ??? properties.

The plaintiff no. 1 returned from South America, ??? at Calcutta on the 21st of October, 1938. On his return ??? he found that Banarsi had died and there was no member ??? family either male or female then surviving.

He then alleges that Ramlagan Rai, Sheomangal Khobari Rai and the defendants came into possession ??? properties belonging to his family under the ??? Banarsi Rai and his mother as trustees for plaintiff ??? Plaintiff no. 1, having made a gift of his properties in ??? of his sisters' sons, plaintiffs 2 to 5, under a deed of gift, ??? the 11th of February, 1939, the defendants were enraged began interfering with his possession as a result of ??? proceeding under section 144 of the Code of Criminal ??? was started between them. The said proceeding, how terminated in favour of the defendants. Hence, this ??? declaration of title and recovery of possession.

The defence set up by the defendants, inter alia, was plaintiff no. 1 was not a descendant of Harnam Rai, his all grandfather Surat Rai being the son of one Bissessar Rai not of Harnam Rai, that the defendants were legal ??? Banarsi, and that they having been in possession of the practise for more than 20 years since the death of Banarsi, they acquired title by adverse possession and the plaintiffs' suit therefore, liable to be dismissed.

The trial Court came to a finding that the plaintiffs failed to establish that plaintiff no. 1 was a ??? Harnam Rai and hence they failed too to establish their to the disputed properties. With regard to the plea of ???, the trial Court held that the plaintiffs' case was governed by the provisions of Article 142 of the Limitation but it was governed by Article 144; but, however, the defend having been in possession for more than 12 years since the ??? of Banarsi Rai, which took place in the year 1920, defendants had acquired title by adverse possession. In ??? of the adverse character of the defendants' possession learned Subordinate Judge relied on Exts. D and E which she that in a proceeding under section 105 of the Bengal ??? Act in 1921 Khobari Rai, the ancestor of the defendants substituted in place of Banarsi as the latter's heir, and receipts Exts. A series which showed that since the deatl Banarsi in about 1920, the defendants were paying ??? respect of the lands, and lastly on Exts. C series from ??? appeared that the defendants had made various transfer different parcels of the disputed properties in assertion of their right of ownership. In short, the learned Subordinate Judge held that the defendants possessed the properties in assertion of their own rights, with adequate openness, continuity, notoriety and without any attempt at concealment, and therefore they had acquired title by adverse possession. In his view, the question of knowledge of such adverse possession on the part of the plaintiff was quite immaterial.

The Additional District Judge in appeal differed from the learned Subordinate-Judge with regard to the question of the plaintiffs' title. His finding on this point will appear from the following passage taken from his judgment:

“I hold that the plaintiffs' father Thakur was joint with Mahip and his sons. The plaintiff no. 1's father admittedly died after the plaintiff no. 1 had left for British Guiana and America. I hold that the plaintiff's father died in a state of jointness with Banarsi who was the only descendant of Mahip then alive. I am not prepared to attach any weight to the fact that Thakur's name was not recorded in the cadastral survey. Thus it is clear that the plaintiffs have proved that plaintiff no. 1 had title to the properties be longing to the family of Harnam, and that he became entitled to them all by survivorship on the death of Banarsi. The properties in suit are admittedly properties belonging to the family of Harnam. Admittedly there is no other member of the family of Harnam left. Thus there can be no doubt about the title of the plaintiff to the lands in suit and I hold accordingly.”

On the question of extinguishment of the plaintiff title by adverse possession of the defendants, the learned Additional District Judge concurred with the view taken by the trial Judge.

The material facts on which he based his conclusion are stated thus by him:

“Admittedly Banarsi died about the year 1920 after the revisional survey and admittedly the plaintiff was not in India at the time and he continued to be absent until October, 1938. He instituted the suit on 16th November, 1939, that is, only a little over a year after his arrival in India. It is also common ground between the parties that during the period of the absence of plaintiff no. 1 from India, the defendants and their ancestors were in possession of the lands in suit after the death of Banarsi.”

Later in his judgment, he concludes to the effect that the possession of the defendants and their ancestors must be deemed to be adverse for two reasons, namely, that the defendants' ancestors could not be holding on behalf of plaintiff no. 1 as they did not even know whether he was alive, nor could it be said that the defendants were holding possession permissively as the person who could give such permission was not known to be alive, he having been admittedly traceless at the time, and secondly that the plaintiff no. 1 could by exercise of due diligence have known that the defendants were exercising acts of possession over the suit properties, and that they were doing so in their own right.

In this appeal, there is no controversy that except for acquisition of title by adverse possession by the defendants, title would lie with the plaintiff. The outstanding question for consideration, therefore, is whether, under the circumstances of the case, the possession of the defendants can be held to be adverse to the plaintiffs. There is no dispute that this is a case to which Art. 144 of the Limitation Act applies. According to the article, the 12 years' period of limitation begins to run when the possession of the defendants becomes adverse to the plaintiffs. The crux of the question for determination, therefore, is when the possession of the defendants became adverse to the plaintiffs.

It is not controverted at the Bar that possession of Banarsi as a member and more so as a manager of the Hindu joint family was on behalf of all the coparceners. Plaintiff no. 1, therefore, was in possession through him till his death in the year 1920. At the time of his death the plaintiff no. 1, who alone amongst the plaintiffs, was entitled to immediate possession of the properties was out of India. In his absence the ancestor of the defendants stepped into the shoes of Banarsi in assertion of their status as his heirs. The question, therefore, turns upon the consideration, whether this assertion of theirs combined with their actual physical possession of the properties, in suit, amounts to an ouster of the plaintiffs, or, in other words, whether their possession as such begins to be adverse since then. That they asserted themselves to be heirs of Banarsi is clear from Exts. D and E series, noticed above, and this was in the year 1921.

It is contended by Mr. P.R Das for the appellants that every possession is not necessarily adverse. In favour of his proposition that the possession of the defendants under the particular circumstances of this case was not adverse, he relies upon two circumstances, namely, (1) that the defendants having stepped into the shoes of Banarsi, they could not acquire any right higher than that of Banarsi as against plaintiff no. 1 and Banarsi's possession being on behalf of the plaintiff no. 1, they could not claim any higher right by their possession, and (2) that there is nothing on record to prove any circumstance which if known would give the plaintiff sufficient notice that the defendants' possession amounted to or started with repudiation of the plaintiff's vested title that was inherent in the joint family estate held and represented by Banarsi in his lifetime and then surviving to him.

The classical requirements of adverse possession as propounded by the Privy Council, from time to time, are that the possession must be nec vi nec clam nec precario, that is to say, the possession required must be adequate in continuity, in publicity and in extent. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. In the case of Secretary of State for India v. Debendra Lal Khan(1) their Lordships negatived the contention that it was necessary for the trespasser to bring the fact of his adverse possession to the notice of the real owner. Dr. D.N Mitter, appearing for the respondents, contends that in view of the aforesaid principle of law as enunciated by their Lordships of the Privy Council, the possession of the defendants which fulfilled the above conditions would be held to be adverse since its very commencement.

This argument, however, overlooks the fact that the practical application of the aforesaid principles is a matter of some difficulty in reference to varying features of particular cases. In the case of Maharaja Shrischandra Nandy v. Baijnath Jugal Kishore their Lordships, with reference to the particular facts of that case, expressed themselves to say that, in their Lordships opinion, the defendant had failed to show that the plaintiff's predecessors by exercising due diligence ought to have been aware of what was happening apart from the question that the defendant's possession was adequate in continuity and extent, and that the failure of the plaintiff's predecessors to notice these things, even if they were sufficient, when seen, to put them on their guard, involves, in the opinion of their Lordships, no lack of reasonable vigilance on their part, and the defendants' case must fail on this point. In this case their Lordships also found that there was no attempt at concealment.

This dictum of their Lordships makes it very clear that mere exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening.

It will appear from the following review of cases that the requirements to make possession adverse vary according to the peculiar facts of each case and depend upon the particular background of facts and relationship of the parties and other like circumstances in which the adverse possession commences. In the case of Ejas Ali Qidwai v. Special Manager, Court of Wards, Balarampur Estate(2) their Lordships of the Privy Council have said that the principle of law firmly established is that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed, and that possession that is at its inception permissive must be shown to have become adverse by some subsequent change in its character.

In the case of Kodoth Ambu Nair v. Secretary of State for India in Council(3) their Lordships held that a licensee cannot claim title only from possession, however long, unless it is proved that the possession was adverse to that of the licensor, to his knowledge and with his acquiescence. Knowledge or notice of adverse act is necessary when permissive possession is admitted to be changed to adverse possession. Possession of a derivative holder may be deemed to be possession of the original owner.

It has also to be borne in mind, as a settled principle of law, that acts which prima facie are acts of dispossession may under particular circumstances fall short of evidencing any kind of ouster. They may be susceptible of another explanation, bear some other character or have some other object when placed in juxtaposition with some facts and circumstances.

In the particular facts of the present case the defendants' possession may be referable to their heirship to Banarsi's personal estate or may as well be referable to a state of mind in consonance with the honest intention of holding the estate in safe custody till and subject to the plaintiff no. 1, who was then traceless, coming back and claiming. They have proved no act of theirs which is referable and referable only to their claiming in denial of the plaintiff no. 1's title even if the latter be alive. The preferential right of custody of one's goods also depends upon one's preferential heirship. Therefore, claim of heirship of Banarsi's estate is not without more a circumstance from which the true owner should be aware of his title being invaded. The state of mind of the true owner is a factor to be taken into consideration.

In the case of Jagannath Marwari v. Sm. Chandni Bibi in which the question of adverse possession arose as between co-tenants, it was held that in order to establish adverse possession as between the co-sharers, there must be evidence of an open assertion of a hostile title by one of them to the knowledge of the others. Mere non-participation in the profits by one party and exclusive occupation by the other is not conclusive. Mookerjee, J., after laying down the aforesaid principle while dealing with the facts of the case, said: “Indeed, before this action was brought, there was no attempt on the part of the defendants to rely on adverse possession, their pretence was that they were the rightful owners, and one of them, the first defendant, has pledged his oath in support of that untrue allegation in the witness box in this suit; they cannot consistently urge that from 1901 the first defendant began to hold adversely to the knowledge of the rightful owner”. In the case of Thomas v. Thamas Wood, V.C held that possession is never considered adverse, if it can be referred to a lawful title.

The original owner may exercise possession over his ??? through his representative whose possession is in law ??? to be the possession of the principal, but if the represented ??? changes his mind and determines to hold the property ??? of himself, strictly speaking the possession of the ??? is gone, but the law interferes in favour of the ??? and holds that his possession continues at least until ??? of his right is brought to his knowledge. In the case ??? Chettiar v. Kothandapani Chettiar the ??? arose whether the plaintiff had been excluded from a ??? which was joint family property. The plaintiff had been ??? for many years in the Straits Settlements. The first ???, another member of the family, executed a sale deed ??? of the property and the alienee took possession of Odgers, J. held on the question of adverse possession the fact that Art. 144 applied to suits against the alienee coparcener and not Art. 127 did not make any difference ??? in considering cases of adverse possession one is ??? entitled to consider the original and quality of the ???, and that unless exclusion or abandonment is proved, question of adverse possession did not arise. His Lordship: “A point which had come before me on a previous ??? has been agitated in this case, namely, as to whether ??? possession, can be acquired against a coparcener with ??? being put on notice either actual or constructive that ??? possession is running against him. There are cases on aside of the line and the matter does not appear to have authoritatively disposed of at least as far as this Court ???. I had occasion sitting with Mr. Justice Ayling A. no. 2019 of 1920 to examine the cases on this question me length and my opinion then was that such adverse ??? could not be acquired without notice to or knowledge ??? coparcener against whom it was so acquired. The same ion was expressed by Ayling and Tyabji, JJ., in ??? Unagar v. Sankaranarayana Aiyar”. In the case Musammat Sitabai v. Jumo it was held that there could ??? adverse possession if the defendant himself did not know he was occupying somebody else's land. He must have the ??? of using the property adversely against the other ???.

In the case of Bhaiji Shamrao Darekar v. Hajimiya amad Amin(4) it was held that the possession of joint ??? by one co-sharer does not constitute adverse possession ??? any other co-sharer until there has been a disclaimer ??? latter's title by open assertion of a hostile title by the former. The facts giving rise to that case were that A and S were joint owners of certain property. Both of them mortgaged the same to B in 1866. A alone redeemed the mortgage in 1882 and mortgaged the same to the defendants who entered into possession of the property and leased it out to his heirs. The, heirs of S sold their rights in the property to the plaintiff who sued in 1908 to redeem the mortgage of 1866. It was found as a fact that no knowledge of exclusion or adverse possession by A could be imputed to S's heirs. The defendants contended that the rights of S's heirs were barred by the law of limitation. It was held that so long as A took no step to assert a title against the plaintiff or those under whom he claimed in such a manner as to challenge their right to redeem their interest from her, the possession of A and her mortgagees would not be adverse to the plaintiff or his predecessors-in-title except in so far as the mortgagees might set up a limited title under Article 134 of the Limitation Act.

In the case of Halim Shah v. Rahim Bux it was held that a person who takes a transfer from a co-tenant or co-owner steps into the shoes of his transferor. When he takes the assignment he is clothed with all the rights and becomes subject to all the liabilities of his transferor. In short, he becomes as much a co-tenant or co-owner as his transferor was before the transfer. This being the position there is no good reason for the rule applicable to co-owners and co-tenants not being applied to the transferee.

In the case of Subah Lal v. Fateh Muhammad the plaintiffs inherited a half share of a shop and their first cousins inherited the other half and the entire shop was in the possession and management of these first cousins. They transferred the shop to the defendant in April 1910 who was in continuous possession since then. In November 1924, the plaintiffs sued to recover possession of their share of the shop, and the question arose whether the defendant's possession should be deemed to have been adverse since April 1910, with the result that the suit was barred by time. The findings of fact were that the plaintiffs neither had any knowledge of the usufructuary mortgage nor had any reasons to suspect the conduct of their first cousins whose possession had not been in denial of the plaintiffs' title. It was held by Sulaiman, and Naimat-ullah, JJ. that the defendant's possession could not be deemed to have been adverse to the plaintiffs from the date of the usufructuary mortgage, and the suit was not barred by limitation. As regards co-owners, the law is that there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the others; and the same principle applies to the case of a transferee from a co-owner, who professedly takes a transfer of the whole property from him. There can be no difference in principle whether a person is the original co-owner or has become a co-owner by virtue of a transfer.

With the reference to the last quoted decision, it may be observed that the mere fact of one co-owner assigning the whole interest, that interest being in excess of his own share was not considered a circumstance calculated to give notice of hostile assertion of title to the other co-owner.

In the present case the defendants' ancestors took possession of the disputed properties on the death of Banarsi by asserting themselves to be heirs of Banarsi. As I have shown above, there is no difference in principle in considering the question of adverse possession as between two corowners and between a co-owner and a transferee from another co-owner. I find no difference in principle to show in what way a co-owner's heir can stand on a better footing than an assignee. The defendants, therefore, in order to establish adverse possession as against the plaintiffs must show that there was an ouster of which the plaintiff had either actual or constructive notice. Much reliance is placed upon the sale deeds of the year 1925 (the other ones being within 12 years of the suit are immaterial) executed by the defendants in respect of a part of the disputed properties, and it is contended that these transactions establish beyond doubt that they were asserting their own title in denial of the title of the true owner. But these documents were executed in order to raise funds to pay off debts incurred by Banarsi. These transactions, therefore, do not militate against the possession of the defendants being of the same character as that of Banarsi himself.

The defendants having stepped into the shoes of Banarsi, their possession is subject to such equities in favour of the plaintiffs as were available to them as against Banarsi. If Banarsi ever had attempted to assert a hostile title in repudiation of the title of the plaintiff no. 1, his possession thereafter would not have been deemed to have been adverse unless this assertion was brought home to the knowledge of the plaintiff. The learned Additional District Judge has found as a fact that neither the defendants nor their predecessors ever knew that the plaintiff no. 1 was alive. Under the circumstances, it is inconsistent on the part of the defendants to say that they were prescribing as against the plaintiff no. 1 or their assertion was in denial of the latter's title.

It has been strenuously contended by Dr. Mitter that the question of adverse possession is a question of fact, and this Court has no jurisdiction to interfere with the concurrent findings on this point, recorded by both the Courts below. I cannot accept this contention to be sound. The question is a mixed question of law and fact. To decide what are the elements that are necessary, in view of the special features of a particular case, in order to attribute, the character of adverseness to the defendants' acts of possession is a question of law and if the Court of fact has misdirected himself as to these elements, he must be deemed to have committed an error of law.

The learned Additional District Judge has misdirected himself in law in arriving at a finding that mere acts of physical possession of the defendants without anything more were adverse to the plaintiffs from the very start. I have said it was not so till even the sale transaction of the year 1925. The adverse possession must be for the full statutory period. The defendants claiming to be representatives-in-interest of Banarsi cannot be considered to have asserted anything more or anything less than if Banarsi had suddenly started changing the character of his possession. Beyond doubt, plaintiff no. 1's suit against Banarsi for recovery of possession would not fail merely for his act of possession combined with assertion of his individual and exclusive title but the defendant Banarsi in order to defeat the plaintiff's suit would have had to prove that the statutory period of 12 years had passed before his suit since “the exclusion-became known to the plaintiff” (to use the words of clause (3) of Art. 127 of the First Schedule of the Limitation Act). The requirements of adverse possession by Banarsi's heir would be the same as above. Instead of the defendants, suppose Banarsi was succeeded by his son, widow or mother. It would be the height of absurdity to contend that their possession in order to be adverse need not be subject to the same limitations as that of Banarsi. The defendants do not claim to have been prescribing for any right higher than that of Banarsi. They could not successfully hold the disputed estate free from the charges, liens, liabilities and other equities to which Banarsi's estate in his hand and on account of his doings would be liable. If so, I can see no principle in law which would exonerate them (defendants) from fulfulling those very requirements of law to gain title to the extinguishment of that of the plaintiff no. 1 which would have been needed to have been fulfilled by Banarsi. As they were in actual physical possession in the shoes of Banarsi, they were recorded in the record of rights and as such in the landlord's rent roll. Their dispositions of property by sale deeds in the year 1925 were for paying off Banarsi's debts, that is, the debts of the family and the subsequent, dispositions were within 12 years of the suit Their act of possession can, in view of the fact that they did not know if plaintiff no. 1 was alive, under no circumstances be predicated to be attributable to repudiation of the title of plaintiff no. 1, a person unknown to them.

Different considerations would arise if they claimed adversely to Banarsi. Dr. Mitter argues that they were claiming adversely to Banarsi's heir. This argument ignores the fact that plaintiff no. 1 is not an heir of Banarsi. He had his vested right all along throughout all the material time. In that position their (defendants) position would not be a whit better than that of a co-owner or co-sharer with the plaintiff no. 1. The possession of a co-owner without move is not adverse.

In view of what I have said above, I should hold that the learned District Judge was wrong in law in finding that the plaintiffs' title had been extinguished by adverse possession of the defendants.

In this view of the matter, the appeal succeeds and must be allowed with costs.

Meredith, J.:— I agree. In my opinion there was nothing in the defendants' conduct which could properly be regarded as putting the plaintiff number one upon notice that they were holding the property adversely to him, and not on his behalf if and when he should ever return. The defendants as heirs of Banarsi would be the proper persons to hold and look after the property in either case in the plaintiffs' absence. Merely by reason of their holding it, therefore, the plaintiff, however vigilant, could not have become aware of any assertion of title hostile to him.

K.D

Appeal allowed.