MUNNA LAL Vs. NARAYAN

JUDGEMENT

(1.) 1. The father of the appellants, Bhau, and the father of the respondents, Bhika, were brothers. Admittedly they separated. Bhau died in 1917 and Bhika died some two years later. The suit was brought for possession of a house which was alleged to belong to Bhau. The respondents on the other hand, contended that when the property was divided the house in suit was allotted to the share of their father Bhika and possession was delivered to him and that he and after his death they have been in possession of the house in dispute adversely to the plaintiffs-appellants. The trial Court found that there was an unregistered deed of receipt, dated 2nd May 1915, produced by the defendants, Ex. D-1, which it held to be inadmissible in evidence, but that the defendants and their father before them were in possession of the house as owners and the question of adverse possession did not arise. On appeal the District Judge has found that, though the receipt (Ex. D-l) was a document that required registration and being unregistered could not be used as evidence of title, it could be used in evidence to prove the nature of possession and cited in that connexion the ruling of the Privy Council in Varada Pillai v. Jeevarathnammal AIR 1919 PC 44.

(2.) ON the evidence, then, of this document and also on the oral evidence the District Judge found that Bhika and after him and the defendants were in exclusive, adverse possession, of the house and the claim of the plaintiffs, if any, was barred by time. Another question raised by the plaintiffs-appellants that even if the possession of Bhika was primarily adverse there was a break in that adverse possession when they went to live with Bhika on the death of their father and thus began to enjoy posses-sion of the house along with the defendants has been considered by the learned District Judge in para. 6 of his judgment. I would only add on this point that I agree with the reasoning of the District Judge and hold that if the possession of Bhika was adverse, the fact that on their father's death the appellants lived with Bhika and on his death with the respondents, who looked after their property, would not constitute any break in the adverse possession.

(3.) THIS matter has been considered by the District Judge in the latter part of para. 5 of his judgment. I am of opinion, that this contention is correct and that on the oral evidence, too, the finding of the lower appellate Court that Bhika was in adverse possession of the house must be upheld. As contended by the learned Counsel for the respondents a partition is not required by law to be effected by a document and therefore Section 91, Evidence Act, would not bar oral evidence in regard to partition. Further, there is no question of proving the terms of the contract or partition in the present case, and if it is held to be inadmissible in evidence oral evidence regarding possession of the house would not be excluded.