- (1.) THIS is an appeal by the defendants Nanga, Jiwan and Kalu against the appellate judgment and decree of the Civil Judge, Khetri dated the 25th January, 1950. The plaintiffs who are respondents before me, filed a suit for the recovery of Rs. 20/- alleging that a standing tree belonging jointly to the parties in which the plaintiffs had l/4th share had been sold by the defendants and the whole of its price had been appropriated by them, The plaintiffs, therefore, claimed their l/4th share i. e. Rs. 20/- out of the alleged amount of Rs. 80/ -. The defendants admitted having sold the tree but pleaded that it had been sold only for Rs. 30/- and not for Rs. 80/- as alleged in the plaint. They further pleaded that for thirty or thirty five years after the death of Padma, they had been in adverse possession of the land over which the tree stood and, therefore, the plaintiffs had no right to claim any share out of the price for which the tree was sold. The learned Munsif Kotputli who tried the case found that the defendants had been in adverse possession of the property over which the tree stood for more than twelve years and consequently dismissed the suit. The plaintiffs went in appeal but the learned Civil Judge, Khetri disagreed with the learned Munsif and held that the land over which the tree stood was the joint property of the parties and the defendants had not shown that they had adverse possession of it. The plaintiffs were, therefore, entitled to claim 1/4th share from the defendants, but holding that the tree was sold for Rs. 30/- only, he awarded a decree for Rs. 7/8/- to the plaintiffs against the defendants. Against this decree, the defendants have come in appeal.
(2.) IT was argued by Mr. C. L. Agarwal on behalf of the appellants that the defendants had been in exclusive possession of the property in suit for more than twelve years and had not paid any profits to the plaintiffs for a period much longer than twelve years. They had, therefore, acquired adverse possession over the property and the plaintiffs had, therefore, no right to claim anything out of the price of the tree sold. IT was further argued that the plaintiffs were not in possession of the property in suit and, therefore, without bringing a suit for possession, they could not bring a suit for mesne profits. On behalf of the respondents, no body appeared. I have considered the argument of Mr. C. L. Agrawal and have also gone through the record of the case and the law on the point. It has been found as a fact by the lower appellate court that the plaintiffs are co-sharers in the tree along with the defendants and that their share comes to l/4th. It has also been found that the defendants had not acquired any title by adverse possession over the land over which the tree stood, or the tree in dispute. Mr. G. L. Agarwal pas argued that because the plaintiffs had no possession of the land over which the tree stood for more than twelve years and had not received any income from that plot, the possession of the defendants ought to be deemed to be adverse. I do not agree with this view. In a joint property, it is not always possible that other co-sharers should have physical possession over every part of that property. Sometimes some co-sharers are in physical possession of one property and some of other. The possession however of those co-sharers who are in actual possession is considered to be on behalf of those also who are not in actual possession. Ordinarily, the exclusive possession of one-sharer cannot be adverse possession against the other co-sharers. Of course by some overt act a co-sharer in exclusive possession, can show that his possession has become adverse. It was held by a Division Bench consisting of Wordsworth J. and Patanjali Sastri J. (now Chief Justice of the Supreme Court of India), in the case of Maherwan Jehangir and others vs. Dhunbhai Kavasha Mistri and others (1) (AIR 1940 Mad. 185.), that: - "possession is never considered adverse if it can be referred to a lawful title. It is not possible for the co-owner in possession, whose possession is deemed to be that of his co-owners to put an end to that common possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster can bring about that result. The mere non-receipt by one co-owner of a share in the profits of land in the physical possession of another co-owner will not be sufficient to establish adverse possession, in the absence of positive indications that the co-owner in physical possession was setting up an adverse title to the knowledge of the other co-owner. " In the case of Usaf Hasan and another vs. Major Raunag Ali and others (2) (AIR 1943 Oudh, 54, ). it was held by Gulam Hasan J. (now Judge of the Supreme Court), that: - "in the case of co-owners the question whether on given facts and circumstances a case of ouster can legitimately be raised depends entirely upon the circumstances of that case. There is no inflexible rule of law that an ouster must be presumed where a co-owner has been in sole enjoyment of the property for a long time. To acquire adverse possession and thus extinguish the title of other co-owner he must make an open assertion of hostile title in himself to the knowledge of the others and in pursuance of such assertion oust them form the enjoyment of their shares of the property. In order to make but a case of ouster there must be a clear refusal to allow the other co-owner to participate to the enjoyment of the property. Where however there has been neither an open denial of title nor any ouster to the knowledge of the co-owner intended to be ousted, it cannot be said that the possession of the co-owner claiming adverse possession creates a title by prescription. " In the case of Munshi and others vs. Beli Ram and others (3) (AIR 1937 Lah. 578.), it was held by a Division Bench of Lahore High Court that - "the possession of one co-sharer must be deem to be the possession of all the other co-sharers, and in order to defeat the title of absentee co-sharers, it is for the co-sharer in possession to prove that by some overt act he converted his possession into adverse possession to the knowledge of the other co-sharers. " In the case of Duni Chand and others vs. Jagdev and others (1), it was held that: - "as amongst co-sharers each co-sharer is entitled to the possession of the whole and every part of the joint property and if one of such co-sharers is at any time found in exclusive possession of the whole of the property and in exclusive of rents and profits of that property his possession cannot be regarded as wrongful. " There is thus abundant authority to show that without any act of ouster the exclusive possession of a co-sharer does not amount to adverse possession against other co-sharers. In the present case no such ouster has been proved and the only thing which has been shown is that the defendants had been in exclusive possession of the property and were enjoying the usufruct thereof. This cannot create any right in the defendants by adverse possession to the detriment of the plaintiffs' right. Another argument raised by Mr. Agarwal was that the plaintiffs were not in possession of the property and, therefore, they could not bring a suit and could not claim mesne profits. There is no justification for Mr. Agarwal's view that the present is the case for mesne profits under sec. 2 (12) of the Civil Procedure Code. "mesne profit" of property means those profits which the person in wrongful possession of that property actually received or might with ordinary diligence have received therefrom. In the present case, the defendants cannot be said to be in wrongful possession of the property because they are co-owners. The share in the price of the tree, therefore,, cannot be said to be mesne profits. If a co-sharer receives income from joint property and withholds the share of the others,, the latter can maintain a suit against him for their share of the income or for an account. A claim for such share of rents and profits is sometimes,, in common parlance, described as mesne profits but in fact it is not a claim for mesne profits as defined in sec. 2 (12) of the Civil Procedure Code. I am supported in this view not only by the definition of mesne profits under sec. 2 (12) of the Civil Procedure Code but also by a decision of East Punjab High Court in the case of Duni Chand and others vs. Jagdev and others (1) (AIR 1949 East Punjab 243.), referred to above. Mr. Agarwal has, therefore, failed to show any ground on which the plaintiffs could be refused decree for their share of the price of the tree in dispute. Once they had been held to be co-sharers and the plea of the defendants regarding adverse possession had been negatived. To my mind there was no answer to the plaintiffs' suit on the finding of facts given by the lower appellate court. The appeal is dismissed, but as the respondents have not appeared, I make no order as to costs. .;