Mohammad Ismail, J - (1.)This is a defendants appeal arising out of a suit brought by the plaintiff for closing two doors and one window opened in the northern wall of the shop in possession of the defendants and also for a perpetual injunction restraining the defendants from making any construction on the roof of their shop or from obstructing the plaintiff in using the roof. The suit was contested by the defendants on several grounds which will be noticed later. The Courts below have decreed the suit in terms of the reliefs prayed for in the plaint. It appears that one Ladli Prasad owned two shops adjoining each other. After Ladli Prasad's death his two sons Dwarka Prasad plaintiff and his brother Bhikumal succeeded to the property. Bhikumal died leaving a son Ramchandar. Ramchandar mortgaged one half share in the two shops to the plaintiff Dwarka Prasad on 20 June 1907. On 18 September 1908, Ramchandar sold one of the two shops situated to the north to Mathura Prasad under a sale deed dated 18 September 1908 Part of the sale consideration was left in the hands of the vendee to redeem the mortgage in favour of Dwarka Prasad, plaintiff. The mortgage was to be redeemed in 1913. Mathura Prasad sold this shop to Kirpa Ram, defendant under a sale deed dated 9 July 1925. The Court below upon a consideration of evidence came to the conclusion that there was no partition between Dwarka Prasad and Ramchandar with respect to the two shops. The Court below however held that Kirpa Earn was in exclusive possession of the northern shop since 1925 and before that Mathura Prasad was in exclusive possession of it since 1908. The Court below ultimately confirmed the decree of the trial Court that the defendants had no right to open the window and the doors or to raise any other constructions on the northern shop as it was still jointly owned by the plaintiff and the defendants. The defendants have preferred the present appeal.
(2.)It has been argued that on the findings of the Court below the suit ought to have been dismissed on two grounds: (1) That the defendants and their predecessor being in exclusive possession of the property for over 12 years had acquired full right in it by adverse possession. (2) Assuming that the claim was not barred, the defendants were entitled to open the window and the doors as these constructions were not in. consistent with the exclusive enjoyment of the property which admittedly was in their possession for a number of years. With regard to the first point it is conceded that the sale deed of 1908 in favour of Mathura Prasad by Ramchandar did not give a good title to the shop to the transferee as, according to the finding of the Court below, on that date, the shop was jointly owned by Ramchandar, transferor, and Dwarka Prasad, the plaintiff. It is however argued that Mathura Prasad assumed possession of the property as full owner and enjoyed possession of the property openly and continuously till 1925. That being so, as transferee, he could claim ownership by adverse possession against the joint owner Dwarka Prasad. Reference has been made to Bhavrao V/s. Rakhmin (1899) 23 Bom. 137 (FB). In this case it was held: Where co-parceners have alienated their shares in the joint property by sale and mortgage and the alienees have been in possession for more than 12 years, a claim for partition against such alienees is barred by limitation under Art. 144, Limitation Act.
(3.)At p. 141 Farran C.J. remarked: Adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom true ownership is vested--whether in a single person or jointly.