DEVARASU VENKATACHALA DWARAKA NADHA RAO; NARASUBAYAMMAH Vs. DEVARASU VENKATARAO PANTULU

JUDGEMENT

(1.) In this case the plaintiff appeals from a decision of the District Judge in a partition suit refusing him a share of a certain site on which the family house formerly stood. The family house was washed away by the great cyclone in the sixties and another house was subsequently constructed by the defendants. The plaintiff does not claim any share in the superstructure, but claims that in the partition he is entitled to a share of the site.

(2.) The District Judge has relied on a variety of circumstances showing that the plaintiffs had abandoned their right. The proper principle to start with, in our opinion, is that assuming, as found by the District Judge, that shortly after the cyclone the parties became divided in status, yet that until there was a partition by metes and bounds they would be in possession as tenants-in-common of what had been the point family property, and with regard to he tenants-in-common the presumption is hat the possession of one is the possession of all, and, therefore, the possession of the defendants would enure for the benefit of the plaintiff at any rate, unless it were shown either that the plaintiff had renounced his share of the property in possession of the tenants-in-common or possibly that there had been something amounting to ouster.

(3.) Now, looking at the case from this point of view, there is oral evidence of three witnesses, who say they remember long ago that the plaintiff s grandfather said that he renounced his share of the family house. This is not the evidence upon which the District Judge has acted in arriving at the finding he has arrived at and we do not think it is evidence on which it would be safe to act, and, therefore, it comes to this that as there is no evidence of anything that could be considered as ouster, the possession of the defendants must all along be considered to have been the possession of their tenants-in-common.