Decided on February 19,1965


Referred Judgements :-



D.P.Uniyal, J. - (1.)THIS is a defendant's appeal arising put of a suit for partition of 2 Sehams out of 6 Sehams of property described us C and D.
(2.)THE facts of the suit giving rise to this appeal will be clear from the following pedigree:-- MURAD BUX Bahi Bux Kallu Ali Bux Mt. Hameedan Karim Bux=Mst. Karim Ullah Hameedan | Yasin In 1941 there was a partition between Ilahi Bux and Kallu sons of Murad Bux. Properties A and B were allotted to the share of Kallu and C and D were allotted to the share of Ilahi Bux, Prior to this on 6-11- 1938 Ali Bux, son of Ilahi Bux had executed a usufructuary mortgage of property C-1 which is said fro be a Khaprail in favour of Ahmad Hussain defendant No. 6. In pursuance of the said mortgage Ahmad Hussain entered into possession. THEreafter on 23-2-1943 Smt. Hameedan, sister of Ali Bux, who was admittedly a co-owner of property C. 1, executed a sale deed of her share in property C-1 and D and transferred 2 Sehams out of 6 Sehams as representing her share to the plaintiff-respondent. It is not disputed that the plaintiff was unable to obtain possession over the property C-1 under the sale deed aforesaid. THE present suit for partition was instituted by the plaintiff-respondent in 1951 on the allegation that he was entitled to 2 Sehams out of 6 Sehams in property C-1, being a transferee from Smt. Hameedan.
The main contest to the suit was by the appellant defendant No. 6 who was mortgagee of the house C-1 from AH Bux. He pleaded that after obtaining the usufructuary mortgage aforesaid he paid Rs. 400/- to Ali Bux and purchased the equity of redemption from him in respect of the house and had, therefore, become exclusive owner of the Khaprail C-1. He pleaded bar of limitation and alleged that he had prescribed title by adverse possession against Smt. Hameedan and her purchaser, the plaintiff- respondent.

The court below held that the appellant had failed to prove that he had purchased the equity of redemption in respect of house C-1 from Ali Bux and that the evidence adduced by him on this point was inconsistent and contradictory.

(3.)ON the question of adverse possession pleaded by the appellant the court below came to the conclusion that he could not prescribe a title adverse to the co-owner by virtue of a transfer. He accordingly decreed the suit.
In appeal the learned counsel for the appellant confined his arguments to the question of limitation and urged that the appellant had become exclusive owner by reasons of his having acquired title by adverse possession. The learned counsel placed reliance on the case of T.P.R. Palania Pillai v. Amjath Ibrahim Rowther, AIR 1942 Mad 622 (FB). In that case a mortgage was executed in 1920 in respect of certain property by one of the co-owners. The mortgagee remained in exclusive possession from 1920 to 1937 when a suit was filed by one of the co-sharers for a partition. The Full Bench held: "When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other con-sharers must unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests they must take the consequence. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners remains in possession of the land and cultivates it for years, a position which we have here there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with."


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