Mitter, J. - (1.) The main question in this appeal is, whether the defendants appellants perfected their title to the property in respect of which partition was claimed by the plaintiffs by adverse possession for the prescriptive period of twelve years or more.
(2.) The relevant facts are as follows. The parties are all descendants of one Durgadas Mukherjee who died many years back, leaving six sons and inter alia the property which is the subject matter of this litigation, recorded as Dag No. 444 Khatian No. 72 in Mouja Barasat, District 24 Parganas during the last Cadastral survey. Of the two plaintiffs the first Saradindu is a great grandson of the said Durgadas Mukherjee of the branch of the youngest son, his co-plaintiff being a grandson in another branch. The defendants belong to other branches of the said family. The first plaintiff based his title on several conveyances from other members of the family as also purchase at an execution sale of a fractional interest of the members of the branch of Bama Charan, the second son of Durgadas. The second plaintiff claims by inheritance. The property consists of 34 acres together with two structures thereon which are quite separate from each other. One portion of the structures i.e. that to the east, popularly known as Bamacharan Babu's Bati is a fairly commodious building with a separate municipal number. The other structure in the western portion known as Baitakhana Bati was and is admittedly the joint property of the descendants of Durgadas with a municipal number of its own. The plaintiffs claim that the land and the two buildings are joint property while the contesting defendants, some of whom are appellants before this Court, claim exclusive title to the said eastern building with the land on which it stands. The case of the appellants was that the eastern structure was constructed by Bama Charan with his own money and that the co-sharers of Bama Charan, by ekrarnamas, gave up their interest in the land on which the same stood. The High Court agreeing with the finding of the first appellate court found that there was no evidence on record to show that Bama Charan had put up the said building with his own money or that he was the exclusive owner of the sold two-storeyed building or that the other co-sharers gave up their ownership of the subjacent soil and rejected the exclusive title sought to be set up with regard thereto. This is a conclusion of fact which does not require further scrutiny. The High Court also agreed with the lower appellate court in rejecting the story of permissive possession of the defendants over the sold building set up by the plaintiffs and came to the conclusion that "at all material times the heirs in the line of Bama Charan including the appellants were in separate possession of the eastern two-storeyed building."
(3.) The point for consideration before the High Court was and before us is, whether by such exclusive possession the heirs in the line of Bama Charan including the appellants acquired title by adverse possession to the eastern portion i.e. Bama Charan Babu's Bati. With regard to the Baitakhana Bati there is no dispute about its jointness. No question can be raised about the first plaintiff's having become a co-sharer with the heirs in the line of Bama Charan in the year 1941 by private treaties and the auction purchase of the shares of three of his sons in execution of an award under a Co-operative Societies Act. By the kobalas the first plaintiff acquired fractional interest in the shares of some of the descendants of Bama Charan as also of the descendants of his brother Shyama Charan. In the sale certificate following the auction purchase there is a reference to "Dhalan 3 Privy 2" but there is no express reference to these in the kobalas (Ex. 6 series) . In the courts below the defendants-appellants contended that the eastern two-storeyed building was neither intended to be nor was conveyed under Ex. 6 series kobalas and Ex. 9 (a) , the sale certificate. Both the trial court and the first appellate court held that the kobalas and sale certificate were sufficiently comprehensive so as to include all or any structures which stood on the aforesaid plot of land at the material time and that there was nothing express or implied in the kobalas to show that the two-storeyed building on the eastern side was intended to be excluded from their operation. The High Court also found that so far as the sale certificate was concerned the first plaintiff had acquired the interest of three sons of Bama Charan.;