BHOLANATH DE Vs. GOLABDI SARDAR

JUDGEMENT

(1.) This appeal arises out of a unit for the establishment of the plaintiff's purchased jamai right to 1/7 share of 28 bighas of land and for recovery of possession of the same. The land originally belonged to one Nizamuddi Gazi, who left three sons and one daughter Nidra Bibi. The plaintiff purchased the l/7 share of Nidra Bibi from her heirs on the 5 Agrahayan 1320 B.S. Defendants Nos. 3 to 14 are the heirs of the three sons of Nizamuddi, who were entitled to 6/7 share of the land. Defendants Nos. 1 and 2 appear to have purchased all the lands at a sale held in execution of a mortgage decree against the sons of Nizamuddi or their representatives-in-interest, so far back as 1287. and it is found by the Court of first instance that the heirs of Nizamuddi took settlement of 18 1/2 bighas of land from defendants Nos. 1 and 2 and the latter are in possession of the 18 1/2 bighas of land through them as tenants from 1287. The remaining lands are alleged to be in the possession of defendants Nos. 15 to 29 under defendants Nos. 1 and 2.

(2.) The Court of first instance held that although the vendors of the plaintiff had title to the l/7 share, his claim was barred by limitation by reason of the adverse possession on the part of the defendants.

(3.) On appeal the learned Subordinate Judge same to a different conclusion. He was of opinion that it was a case between co-sharers, that in order to constitute adverse possession against a co-sharer, such possession must be openly asserted to the knowledge of the co- sharer and that there was no satisfactory evidence on the record to show that Nidra Bibi or her sons had such knowledge. He accordingly found that the suit was not barred by limitation, the possession of the defendants not being adverse. Evidently the learned Subordinate Judge was dealing with the case as if it was one between the plaintiff and defendants Nos. 3 to 14 only, and entirely ignored the fact that the property was claimed by defendants Nos. 1 and 2 who asserted a hostile title not only against Nidra Bibi and her sons but also against her co- sharers, that is, against all the co-owners. The principle of adverse possession in such cases has been pointed out in the case of Biseswar Gangooly V/s. Bhagabati Charan Banerjee 35 Ind. Cas. 26 : 24 C.L.J. 38. It was held in that case that where the possession of both co-owners of a property was terminated by a hostile third party who claimed the property adversely to both of them and one of the co-owners subsequently came into possession of the property under a lease granted by the adverse possessor and continued to do so for more than twelve years, the title of the other co-owner to the property was extinguished, inasmuch as the possession of the property most be referred to the title which the co-owner acquired under the lease and not to his title as a to owner of the property.