Patna High Court
Tarkeshwar Prasad And Ors. vs Nanhku Prasad Singh And Ors. on 7 October, 1958
Equivalent citations: AIR1959PAT523
JUDGMENT Choudhary, J.
1. These two appeals are by the two sets of defendants and arise out of the same judgment passed in title Suit No. 71 of 1949 decreeing the suit for partition instituted by the plaintiff-respondents. Both the plaintiffs and the defendants belong to the same family as will appear from the following genealogy:
RAJKUMAR SINGH | ___________________________|__________________________ | | | | Lalji Singh Amar Singh Ramji Singh Raghunandan Singh | | | | | Kamaldhari _____________________ | | | | | | Kamta Prasad Suba Poujdar Balkeshwar | | | Deonath | | _________________|__________________________ | | | Nankhu Prasad Singh Sonadhari Girdhari (Plff. No. 1) | Baijnath Prasad | Tarkeshwar Prasad alias Nunu Babu (deceased) Sambhu Prasad Singh alias Daljit = Ful Kuer (widow) (Plff. No. 2) (Deft. No. 2) (Deft No. 1) | Sons (Defts. 3 to 7) The suit property is a house in Mohalla Moharampur Bhauwar Pokhat within the Patna City Municipality bearing old holding No. 101 and new holding No. 123, Circle No. 14. Apart from Amar Singh, the other sons of Rajkumar Singh had no concern with the acquisition of the land over which the house stood, and, though the consideration for the purchase of the land was paid by Amar Singh, it belonged to him and all his three sons. Before the year 1915 Nanhku Prasad Singh was taken in adoption by Ramji Singh who had no issue.
On 20-3-1915, a document, exhibit 1 was executed by (1) Suba Singh, (2) Foujdar Singh, (3) Balkeshwar Singh for self and as guardian of his minor son Deonath Singh, (4) Raghunandan Singh, (5) Kamaldhari Singh for self and as guardian of his minor son Kamta Prasad Singh (6) Amar Singh for self and as guardian of Baijnath Prasad Singh, son of his predeceased son Girdhari Singh. (7) Sonadhari Singh for self and as guardian of his minor son Tarkeshwar Prasad alias Daljit Singh and (8) Nanhku Prasad Singh.
This deed is described as being a deed of agreement by way of relinquishment, but is alleged by the plaintiffs to be a deed of family arrangement, By this document it was acknowledged that half of the house in question was owned and possessed by Amar Singh, Sonadhari Singh and Baijnath Singh and the other half was owned and possessed by Nanhku Prasad Singh. On 20-5-1933, Nanhku Prasad and his minor son Sambhu Prasad filed a title suit being title Suit No. 33 of 1933 against Sonadhari, Tarkeshwar Prasad alias Daljit, Baijnath Prasad and Musammat Reshmi Kuer, wife of Amar Singh for recovery of a certain sum of money after adjustment of account.
The plaint of that suit is exhibit A and a reference was made in this plaint to the house in question and it was stated that it belonged to both the plaintiffs and the defendants of that suit. On 16-9-1933, a written statement was filed in that suit by defendants 1 to 3, that is, by Sonadhari Daljit and Baijnath in which it was stated that the plaintiffs took in cash the proportionate price of the house in question in the life-time of Amar Singh and the house and the land appertaining to it entirely belonged to and were in exclusive possession of those defendants.
This litigation ultimately came up to the High Court in F.A. No. 108 of 1937 which ultimately, on 9-5-1941, was disposed of on compromise. The compromise petition is exhibit 4. It appears that the question of title over the house in question was left open. On 17-9-1949, Nanhku Prasad Singh and his son Sambhu Prasad Singh instituted a suit for partition of the house in question claiming eight annas share therein. The present appeals arise out of this partition suit.
2. The suit was contested by defendants 1 and 2 who filed separate written statements, but their pleas are common. They pleaded inter alia (1) that the plaintiffs had no title over the house in question, (2) that whatever interest they had, they relinquished the same in favour of these defendants on receiving the proportionate price for the house (3) that the suit was barred by adverse possession and (4) that the suit was not maintainable unless court-fee was paid for declaration of title.
3. The trial Court overruled all the pleas taken in defence and held that the plaintiffs were entitled to a decree for partition of their eight annas share in the house in question. The suit was accordingly decreed. Two appeals have been filed against the judgment and the decree of the learned Subordinate Judge, one by defendant No. 1 which is F.A. No. 257 of 1951 and the other by defendants 2 to 7 which is F. A. No. 153 of 1951. Both the appeals have been heard together. Mr. Kaushal Kishore Sinha has advanced the main argument for the appellants in F.A. No. 257 of 1951 and Mr. Misra appearing for the appellants in F.A. No. 153 of 1951 has adopted that argument. Mr. L.K. Chaudhuri has argued the case for the plaintiff-respondents in both the appeals. This judgment will govern both of them.
4. The finding of the learned Subordinate Judge that the plaintiffs did not relinquish their interest in favour of the defendants has not been challenged by counsel for the appellants before me and that finding, therefore, stands. The only points that arise for consideration on the arguments advanced by the parties are (1) whether the plaintiffs had any title to the house in question, (2) whether that title was lost to the plaintiffs by adverse possession of the defendants and (3) whether the suit for mere partition was maintainable without any prayer for declaration of tide. The first question is whether the plaintiffs have or had any title to the house in question. The document by which the land over which the house stands was acquired, has not been produced in this case.
From exhibit C, a sale deed dated 12-10-1933, executed by Baijnath Singh and Tarkeshwar Prasad Singh with respect to the portion of the land appertaining to the house in question shows that the land in question was acquired by Amar Singh under a registered sale deed dated 20-1-1898 in the farzi name of Lalji Singh along with Gajadhar Singh, son, of Bhimal Singh. Exhibit D which is an extract from the Municipal Assessment Register for the year 1900-1901 shows that Amar Singh was described as the owner of the house in question in the Municipal Assessment Register. Exhibit 1, the deed of agreement, referred to above, also recites that the consideration for purchase of the land was paid by Amar Singh.
It further recites that the house in question belonged to and was in possession of Amar Singh and all his three sons including Nanhku Prasad Singh. Thus there is an admission in this document of Amar Singh who is said to have acquired the land that the acquisition was for him as well as for his all the three sons and all of them owned and possessed it. In the written statement filed in the title suit No. 33 of 1933 (exhibit B) by defendants 1 to 3, that is, Baijnath. Sonadhari and Daljit, they did not take an objection that the plaintiff had no title to the house in question, and the case that was made out there was that Nanhku Prasad Singh, plaintiff No. 1, had relinquished his interest in the house in question in favour of those defendants after receiving proportionate price.
Thus they admitted the anterior title of the plaintiff in that suit. In the written statements of the present suit also the defendants have stated that Nanhku Prasad Singh received the consideration from these defendants and relinquished his interest in the house in question in their favour. Moreover as the learned Subordinate Judge has rightly held, the plaintiffs acquired title by virtue of exhibit 1, the so-called deed of agreement. It is stated in that document that in view of the real state of affairs, title and possession and occupation, each party has accepted and agreed to the title and possession and occupation of the other party under this deed of agreement and they declared that the property which belonged to a particular party and was mentioned as such in this deed belonged to and shall belong to him and continued to remain in his possession and occupation.
It is also stated therein that the property which was actually owned and possessed by a certain party should be declared to belong to that party exclusively. After having recited thus this document shows an acknowledgment of all the members of the family of Rajkumar Singh that half of the house in question is owned and possessed of by Amar Singh, Sonadhari Singh and Baijnath Singh and the other half by Nanhku Prasad Singh. Thus, again, the an terior title of the plaintiffs over one half of the house in question is admitted by Amar Singh and the defendants by this document.
5. Apart from that even if it be assumed in favour of the defendants that the plaintiffs had no title to the house in question, they acquired a title over half of the house under the above document. It has, however, been contended by counsel for the appellants that this being a ladavi deed could not create a title in favour of the plaintiffs and no title in law could be created by a ladavi deed. In support of this contention reliance has been placed by the learned counsel on the cases of Keshri Mull v. Sukan Ram, AIR 1933 Pat 264, Jadu-Nath Poddar v. Ruplal Poddar, ILR 33 Cal 967, Dharamchand Baid v. Mauji Sahu, 16 Cal LJ 436. Gobinda Prasad v. Jagdecp Sahai, AIR 1924 Pat 185 and Beshan Dial v. Ghazi-Ud-Din. ILR 23 All 175. Mr. Chaudhuri appearing for the plaintiff-respondents has conceded about the correctness of the above proposition of law, but has contended that the document in question is not a ladavi deed of family arrangement under which a title passed to the parties as shown in the document.
He has submitted that there was a bona fide dispute between the members of the family which was settled by way of family arrangement under the document in question and even if the plaintiffs could not establish their previous title they acquired a title under this document. This document recites:
"As the dispute among us, the executants is contrary to the real state of affairs and in case the said dispute continues, there is apprehension of considerable loss and damage to us, the executants; therefore on the advice of the well wishers of the parties and of the respectable persons and on the advice of the legal advisers of the parties as also with a view to set at rest all kinds of dispute, it was settled that all the disputes should be put to an end by executing a deed of agreement by way of a deed of relinquishment of claims (ladavi) and the property, which is actually owned and possessed by a certain party should be declared to belong to that party exclusively, and as a matter of fact the family of us, the executants, is separate and the property which stands in the name of a certain party has been purchased from his or her funds."
Thus it is clear that the settlement was arrived at under this document to prevent existing or apprehended dispute and there can, therefore, be no doubt that this is really a deed of family settlement and not a deed of ladavi. In that view of the matter, the plaintiffs, acquired a valid title to one half of the house in question even under this document.
6. Mr. Kaushal Kishore Sinha, however has contended that so far as the house in question is concerned, there appears to have been no dispute between the parties as there is nothing in this document to show that there was any existing or apprehended dispute with respect to this house and it has, therefore, been urged that the deed in question could not lawfully be said to be a deed of family arrangement. I am unable to agree with this contention. The land over which this house stands, on the own case of the defendants is said to have been acquired by Amar Singh in the furzi name of Lalji Singh, and there is nothing to show that Lalji Singh, before the execution of this document, ever acknowledged to have been furzidar of Amar Singh with respect to the above land Nanhku Prasad Singh had been adopted by Ramji Singh, but there is nothing to show whether he was adopted before or after the acquisition in question. Though in law after adoption he ceased to have any interest in the property of his natural father, yet his natural father declares in exhibit 1 in the year 1915 that half of this house was owned and possessed by him. It, therefore, does indicate that there must have been some sort of apprehension of dispute with respect to the house in question and that was settled under this document. Assuming however that there was no actual dispute or any apprehension of such a dispute with respect to the house in question, the validity of the deed of family arrangement cannot in any way be affected on that ground, The members of the family may have entered into this arrangement even for preservation of family peace and the preservation of its property and it is not necessary that there must be either a family dispute or a doubtful claim so as to validate a family arrangement. The above proposition of law gains support from various authorities such as, Helan Dasi v. Durga Das Mundal, 4 Cal LJ 323; Maharaj Kedar Nath v. Thakur Ratan Singh, 12 Cal LJ 225 (PC); Rai Kumar Singh v. Abhai Kumar Singh, AIR 1948 Pat 362; and Mst. Kauleshwari Kuer v. Surajpath Rai, 1957 BLJR 319: (AIR 1957 Pat 456).
7. In 4 Cal LJ 323, the husband of the plain-tiff, who was a leper, and his brother inherited their father's properties which were divided between them through arbitrators. Later on, the husband of the plaintiff made a gift of his share to her and she had to institute a suit for declaration of her title to and recovery of possession of the same. It was contended on behalf of the defendant that the plaintiff, who was a leper, was not entitled to a share on partition. On behalf of the plaintiff, however, it was urged that the partition was by way of family arrangement which was binding on the defendant and she acquired a valid title.
The contention of the plaintiff was accepted by the High Court and the partition through arbitrators was held to be by way of family arrangement. In this connection Rampini. J. observed that there was evidently a dispute between the brothers as to the right of the elder brother to inherit the properties which were divided by the arbitrators and thus there was a family arrangement as to the division of the family properties between the two brothers notwithstanding the fact that the elder was a leper and incapable of inheriting. Mookharjee J. in reply to the argument that the family arrangement was not binding as there was no proof that there was any actual subsisting dispute observed as follows :
"As is pointed out in the case of Williams v. Williams, (1867) 2 Ch A 294, a family arrangement may be upheld, although there were no rights actually in dispute at the time of making it as the Courts will not be disposed to scan with much nicety the quantum of the consideration. Lord Chelsford L.C. observed that it is a mistake to suppose that the doctrine of family arrangement extends no further than arrangements for the settlement of doubtful or disputed rights, and proceeded So bold that the principle is applicable not merely to cases in which arrangements are made between members of a family for the preservation of its peace, but also to cases in which arrangements are made between them for the preservation of its property."
In 12 Cal LJ 225 (PC), a grant was made by Government of an ilaka known as Sherpore to one G, who was joint with his two brothers U and R. During the preparation of the Khewat of Ilaka Sherpore, G stated that he and his two brothers were joint in equal shares and the Khewat was signed by the three brothers and countersigned by the presiding officer. It gave the names of the three brothers under the held "shares of Proprietors" and "Names of Zamindaris". It was inferred that under a family arrangement the three brothers became jointly en-titled to the village and it could not be disputed.
In AIR 1948 Pat 362, a Bench of this Court, after reviewing the various authorities on the point held that in order that an agreement between the members of the family can be treated as a family settlement, it is not necessary that it must be shown that there was a dispute as to title between the parties and that the agreement was by way of accepting the antecedent title of the panties to the properties. Another Bench of this Court in 1957 BLJR 319; (AIR 1957 Pat 456), again after reviewing all the authorities on the point stated the law on the subject to be as follows :
"The existence of a family dispute is not the essential ingredient of a family arrangement nor the settlement of doubtful or disputed rights is essential to the validity of a family arrangement. The preservation of family peace and the preservation of its property may very well form a good basis for a family arrangement. Nevertheless there must be a situation of a contest or apprehension of some dispute in future which is sought to be bona fide resolved by the arrangement. The entire object of ithe family arrangement is to resolve or settle either some doubtful or disputed rights, either existing or likely to arise or for the maintenance of peace and harmony and preservation of the property."
On consideration of the facts and circumstances of the case as referred to above as well as the law on the subject my concluded opinion is that the document exhibit 1 is a deed of family arrangement and not a mere deed of ladavi and it is binding on the defendants. I further hold that by this document all the parties interested in the house in question acknowledged the title of the plaintiffs to the one half of it and at any rate, the plaintiffs acquired a title over the same under this document.
8. The next question is as to the acquisition of a right by the defendants by adverse possession. It is well established law by now that the possession of a co-sharer is the possession of all the co-sharers unless the co-sharer in possession pleads and establishes an ouster and adverse possession of the other co-sharers. In this case however, it is contended on behalf of the appellants that on 16-9-1933, by their written statement. Exhibit B, filed in title suit No. 33 of 1933 the defendants made out a clear case of their adverse possession and ouster of the plaintiffs. The suit, having been brought in 1949, more than twelve years after that date, is therefore, contended to be barred by adverse possession. The learned Subordinate Judge has however held that before the defendants could acquire any title by adverse possession by being in exclusive possession for over twelve years, the plaintiffs have established their possession in the intervening period.
9. On behalf of the appellants reliance has been placed on certain documents to show that they have been in adverse possession for over twelve years before the institution of the suit. I will better deal with these documents first. Exhibit E is a certified copy of an extract from Demand Register of the Patna City Municipality for the year 1915-1916 in which the names of Sonadhari Singh and Baijnath Singh are entered as the owners and occupiers of the house in question. The date of the revising order under which this entry was made is 13-7-1915, about four months after the execution of the deed of the family settlement, exhibit 1 referred to above, Amar Singh was alive at the time of the execution of exhibit 1 and there is nothing to show that by July, 1915 when the above demand register was prepared he was dead. If he was alive on that date, then the entry of the names of the defendants must obviously be held to be wrong.
In the life-time of Amar Singh the defendants had no claim of right over the house in question apart from what they got under the deed of family settlement, exhibit 1, If, therefore, the entry would have been made on the authority of that deed of family settlement, the name of Nanhku Prasad Singh also must have been entered in the register. If the entry was made not on the basis of that document, then there was nothing before the Municipal office on the basis of which the names of the defendants would have been recorded in the life-time of Amar Singh. If, however, Amar Singh was dead by that time, then the entry can very well be explained away on the ground that the name of Amar Singh having been given as being owner of the house in question in the Municipal Assessment Register, as shown by Exhibit D, in the year 1900-1901 the authorities on his death entered the names of the defendants as being the owners ignoring Nanhku Prasad Singh who had been admittedly adopted by Ramji Singh.
Moreover, the claim of ouster is made by reason of the assertion made in the written statement, exhibit B, in September, 1933. Exhibit F, therefore, which is of the year 1915-1916, could not be evidence of adverse possession since after September, 1933. Exhibit F is a plan map of the house said to be of Sonadhari Singh and Baijnath Singh which was prepared in the year 1932. Again, this map, being of a date prior to the filing of the written statement, exhibit B, in 1933, can be of no evidence for proof of adverse possession thereafter. Moreover, there is nothing to show that any house was constructed according to this map. Exhibit G series are municipal receipts some of which are granted in the name of Sonadhari Singh alone and the others: in the names of both Sonadhari Singh and Baijnath Singh. Exhibit H series are receipts of simply of bricks by Base and Co. to Baijnath Prasad Singh and it is contended that these bricks were used for the repair and further construction of the house in question.
It may be noted that Baijnath Singh the husband of defendant No. 1 was a lawyer practising in the Civil Courts at Patna and naturally he resided in the house in question. The granting of the above receipts, therefore, in his name can be of no importance in deciding the question of adverse pos-session. So far as the municipal receipts in the name of Sonadhari are concerned, they can be very well explained away on the ground that his name was recorded in the Assessment Register in the year 1915-16 as shown in Exhibit F and, therefore, the receipts were granted in his name also.
10. As already stated the written statement, exhibit B, was filed by the defendants on 16-9-1933, wherein they made out a case of ouster of the plaintiffs. Only about a month thereafter the defendants Baijnath Prasad Singh and Tarkeshwar Prasad Singh sold by exhibit C dated 12-10-1933, a portion of the land appertaining to the house in question to one Kamal Nain Pandey and it is admitted by the plaintiffs that in the present suit for partition they have not put forward any claim for that land. This document also no doubt shows that the defendants claimed exclusive title in themselves and denied the title of the plaintiffs. But soon thereafter it appears that in the Patna City Municipal Survey Khasra, exhibit 2, which was finally published on 19-12-1933, the names of Sonadhari Singh, Baijnath Singh as well as Nanhku Prasad Singh were recorded as being the occupiers of the house in question.
In this connection my attention has been drawn by the learned counsel for the plaintiff-appellants to Section 5 of the Bihar and Orissa Municipal Survey Act (1 of 1920). That section provides that the Superintendent or any other officer employed as aforesaid may enter between the hours of sunrise and sunset on any land within or adjoining the municipality, and may cause boundary marks to be erected, arid may make all enquiries and do all things which ha considers necessary for the purpose of making the survey and record. Section 9 provides that all objections which may be made within the prescribed period of publication in any entry in or to any omission from the record, shall be disposed of by such officer and in such manner, and subject to such appeal, if any, as may be prescribed.
It is contended on the basis of these two sections that the municipal authorities must have recorded the name of Nanhku Prasad Singh as being one of the occupiers of the house in question after having locally inspected the house and that if the defendants had any grievance against the inclusion of his name, they could have put objections for decision by the prescribed authorities. It is not the case of the defendants that they put in any objection with regard to the above entry in the municipal survey khasra. Baijnath Prasad Singh, being a lawyer practising in Patna would not have neglected to raise an objection to the inclusion of the name of Nanhku Prasad Singh if really he had not been in possession of the house in question.
It. therefore, appears that after the assertion made by the defendants as to the ouster of the plaintiffs from the house in question plaintiff No. 1 also acquired possession and showed acts of possession thereon. This inference gains support even from the compromise that they filed in the first appeal as stated above in this Court which is exhibit A in the case. Though they left the question of title as to the house open, there is an indication in that petition that the plaintiff No. 1 and Baijnath Prasad Singh, husband of defendant No. 1, both lived in the house in question. The compromise petition is supported by the affidavits of both these persons and both of them described themselves to be residing at that time at Bhaur Pokhar Patna.
It is an admitted fact in the case that apart from the house in question, the parties had no other house in Patna. Therefore, this document clearly shows that plaintiff No. 1 was at that time living m the house in question. In the year 1942-1943, however, again, the names of Baij Nath Prasad Singh and Tarkeshwar Prasad Singh were recorded as assessees with respect to the house in question as appears from exhibit D (j). But as already stated the names of Baijnath Prasad Singh and the father of Tarkeshwar Prasad Singh were continuing in the record of the Municipal Office so far as the Demand Register was concerned, and, therefore, their names only were recorded as being assessees. Apart from the above documents, my attention has not been drawn to any other documentary evidence which can establish the actual exclusive possession of the defendants over the house in question for twelve years from September, 1933. Reliance has also been placed on exhibit J (2) of the year 1939 which shows that Baij Nath Prasad Singh paid for the charges of water pipe installation, The evidence of Tarkeshwar Dayal is that he did not contribute towards the payment of this installation and the reason is obvious that because Baij Nath Prasad Singh was living in the house in question and was practising in Patna, his co-shares may have put the entire liability on him with respect to such charges which were payable for the comforts of that lawyer.
11. Exhibit 3 is a share receipt dated 10-12-1948, granted by the Bhaur Pokhar Co-operative-Society Ltd. That shows that Nanhku Prasad Singh had ten shares each of which was Rs. 10/-. Similarly, exhibit 3(a), of the same date is again another share receipt of the same co-operative society which shows that ten shares were issued and allotted to Nanhku Prasad Singh, P.W. 3, Ajodhya Prasad, is a pleader practising in the Civil Courts at Patna. He has stated that there is a co-operative store running in Mahalla Bhaur Pokhar since November, 1948, and that under the by-law only the residents: of ward No. 6, Patna City Municipality, can be share-holders in the store.
He has also stated that enquiry is made about the residence of a member before he is permitted to purchase a share in the store. He is the Secretary of this store since June, 1950. He has also stated that defendant No. 1 Phul Kuer, is also a share-holder and member of the store. It is admitted before me that Mahalla Bhaur Pokhar is included in ward No. 6 of the Patna City Municipality. Reading the by-laws as given by this witness and the receipts exhibits 3 and 3(a), it is clear that Nanhku Prasad Singh did really live in the house in question, otherwise, no share could have been issued to him.
On behalf of the appellants, however, it has been contended that these receipts are of the year 1948, about three years after a period of twelve years from the year 1933, when the claim of ouster was made and, therefore, these receipts could not bo taken into account for the purpose of proving that there was any interruption by the plaintiffs in the acquisition of a right by adverse possession within the period of twelve years. True it is that these documents relate to a period of 1948, but taking these documents along with other documents which have already been discussed, it is clear that since after 16-9-1933, when she written statement was filed in the title suit of the year 1933, plaintiff No. 1 had been exercising acts of possession over the house in question before any right by adverse possession could accrue to the defendants.
12. The oral evidence on behalf of the plaintiffs consists of the testimony of Nanhku Prasad Singh himself, P.W. 1, and three other witnesses, namely Bhuneshwar Pande, P.W. 2. Ajodhya Prasad, P.W. 3 and Prabhu Narain. P.W. 4. P.W. 1 has stated he has got eight annas share in the house in question and that be is in possession of the same since much before the execution of the Ekrarnama and was still continuing in possession. He had further stated that whenever he came to Patna, he stayed in the house in question and that he had no other house in Patna except that house. He had brought his wife to Patna for treatment and she lived in this house and died in this house.
He also used to come during the illness of Baijnath and live in the house. His further statement is that at the time when the first appeal was compromised in the High Court he was staying in the house in question, and the talk of compromise took place in that house. In cross-examination he has definitely stated that whenever be came to Patna he stayed in the room which in the north west portion of the house in question and that one blanket and one pillow belonging to him used to be kept in the room till five months ago. P.W. 2 is the Purohit of Mahalla Bhaur Pokhar. His evidence is that he has seen the plaintiff staying and residing in the house in question. He has also stated that he was residing in the house at the time of the illness and death of Baijnath Babu.
He has supported the plaintiff that his wife died in the disputed house. There is no suggestion as to why this Purohit will come to give false evidence in favour of the plaintiffs. Witness No. 3 is Ajodhya Prasad who has stated about the allotment of share of the co-operative store to Nanhku Prasad Singh. P.W. 4. Prabhu Narain, is a senior plea-
der practising at Patna. The disputed house is adjacent of his house intervened only by a wall. He has stated that he had seen Nanhku residing in the disputed house. On one occasion, that is after the death of Baijnath, the plaintiff is said to have lived in the house for ten or twelve days. He has also corroborated the evidence of P.W. 3 on the question of there being a co-operative store in Mahalla Bhaur Pokhar, ward No. 6, of which only the residents of that ward could be the members. Of course, the services of this lawyer were dispensed with by defendant No. 1 in a certain case. The case of the pleader is that as the parties were relations he himself refused to work. Be that as it may, I do not think that that would be a motive for this lawyer to pledge his oath to give false evidence.
13. On behalf of the defendants also four witnesses have been examined. D.W. 1 is Tarkeshwar Prasad Singh, defendant No. 2, and D.W. 4 is Phul Kuar Devi, defendant No. 1. The other witnesses are Ramsaran Singh, D.W. 2, and Gopinath Verma, D.W. 3. D.W. 1 (defendant No. 2) has gone so far as to state that neither the plaintiff nor his wife ever lived in the house in question. He has, now-ever, admitted that the talk about the compromise in the High Court took place between him Nanhku and Baijnath in the house in question and the talk took two or three days. He has further stated that the wife of Nanhku came to Patna two or four times during her life time and that she came to Patna for one or two days after title suit No. 33 had been compromised and she stayed in the house in question for those one or two days. D.W. 4 (defendant No. 1) has also stated in her examination-in-chief that she never saw Nanhku living in the house and that his wife never came in this house and did not stay there.
She has, however, admitted that at the time of the death of her husband Nanhku Babu was in the house in question and that Nanhku came to the house in question ten or fifteen times after the death of her husband. She has stated that once he came to the house in question a day after the death of her husband and on the second time he came on the occasion of the sradh of her husband. On that occasion she admits that his wife also carne and both of them stayed for two days in that house. The third time that he came according to her, was on the occasion of giving advice for the settlement of the land. A very important statement that she had made in cross-examination is that the title suit of 1933 was compromised between her husband and Nanhku Babu and that there was mel milan (good terms) between them and Nanhku Babu after the compromise.
When pressed in cross-examination she had to admit that the wife of Nanhku came about ten or twelve years before the death of her husband and she stayed in the house in question for two or three days on that occasion. Thus the oral evidence considered as a whole also leaves an impression that plaintiff No. 1 had been on occasions exercising acts of possession over the house in question and that the defendants have failed to establish that they were in exclusive possession for over twelve years so as to acquire a title by adverse possession.
14. In that connection Mr. Kaushal Kishore Sinha has advanced an argument that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period, and in support of this contention reliance has been placed on the Privy Council decision in the case of Secy. of State v. Debendra Lal Khan, AIR 1934 PC 23, wherein it was held that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Their Lordships, however, pointed out in that case that the nature of the requisite possession must necessarily vary with the nature of the subject of possession and that the possession must be a kind of possession of which the particular subject is susceptible.
In the present case the position is that Baijnath Prasad Singh, as being a lawyer practising at Patna, was living in the house, but plaintiff No. 1, who was generally living in his village home lying at a distance from Patna, used to live in the house in question whenever he had occasion to come to Patna. In my opinion, in a case like this the nonresident co-sharer can very well be said to exercise his act of possession over the house in question by staying therein whenever he may have occasion to come there. This decision, therefore, in my opinion, is of no assistance to the appellants.
15. It has next been contended on behalf of the appellants that the nature of possession alleged to have been exercised by the plaintiffs is of a temporary and flimsy character and is not such so as to be evidence of interruption to the accrual of a right! by adverse possession. In support of this contention reliance has been placed on the cases of Hafiz Mohammad Fateh Nasib v. Sir Swarup Chand Hukum Chand, AIR 1948 PC 76; Ammakannu Ammal v. Narayanaswami Mudaliar, AIR 1923 Mad 633 and Wuntakal Yalpi Chenabasavana Gowd v. Rao Bahadur Y. Mahabaleshwarappa AIR 1954 SC 337. In the Privy Council case an attempt was made to show that title by adverse possession in the plaintiff could not be sustained as a criminal case for mischief by removing a bamboo fencing raised by the predecessor of the plaintiff was dismissed on the ground that the complainant had failed to establish possession on the land over which the fencing in question stood.
Their Lordships of the Privy Council did not accept this contention as in their opinion the failure of the plaintiff to prove possession on this occasion was a small matter to weigh against the mass of evidence in favour of his possession. On this basis it is argued in the present case that the living of the plaintiff in the house in question for a short period on special occasions will not disturb the accruing of the right by adverse possession. But I am unable to agree with this contention because in the Privy Council case the alleged interruption in the adverse possession was based not on actual possession but on a finding of the criminal Court of non-possession in dismissing the criminal case.
In the Madras case it was held that the mere fact that the original owner came and stayed for a few days as a guest will not operate to make the possession of the intruder less exclusive so as not to extinguish the rights of the original owner of the property. Thus, it appears that it was admitted in that case that the owner came occasionally and stayed in the house only as a guest. There is no such evidence in the present case that plaintiff No. 1 stayed in the house as a guest. In the Supreme Court case it was held that the mere assertion of the joint title by the dispossessed co-sharer will not interrupt the running of adverse possession and that he must actually and effectively break up the ex-elusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it is possible to do. This proposition of law has no application to the facts of the present case because here the plaintiffs have adduced evidence of actual user of the house in question by them.
16. In Mahomed Baqar v. Naim-un-Nisa Bibi, AIR 1956 SC 548, it has been held that, as under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them unless there is a denial of their rights to their knowledge by the person in possession and exclusion and ouster following thereon for the statutory period but there can be no question of ouster, if there is participation in the profits to any degree. In Kuthali Moothavar v. Peringati Kunharankutty, 48 Ind App 395: (AIR 1922 PC 181), their Lordships of the Privy Council held that adverse possession in order to bar by limitation a suit for possession of land must be adequate in continuity, in publicity and in extent so as to show that it is possession adverse to the claimant and that when a person is establishing his title proves that during its currency he has been exercising acts of possession, then the quality of these acts, even though they might have failed to constitute adverse possession against another may be sufficient to destroy that adequacy or interrupt that exclusiveness and continuity which is required from any person challenging by possession his title.
According to the view taken in the above two decisions it is manifest that the nature of possession required to obstruct adverse possession cannot be expected to be of the same character as possession required for creating a title by adverse possession and that even acts of possession to the extent of small degree can be enough to interrupt the accrual of right by such adverse possession. Applying these principles to the facts of the present case it is manifest that the plaintiffs have successfully established that they had interrupted by their acts of possession the accrual of any right of adverse possession to the defendants.
17. The last point contended on behalf of the appellants is that a mere suit for partition without claiming a declaration of title was not maintainable. This argument also appears to be without any substance. In Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225, it has been laid down that where the plaintiff is a co-sharer in the properties he can maintain a suit for partition even though he is not in actual possession unless exclusion and ouster are pleaded and proved.
18. No other point has been raised. For the reasons given above, therefore, there appears to he no merit in both the appeals which must accordingly be dismissed with costs payable to the plaintiffs-
respondents. There will, however be only one set of hearing fee for both these appeals which will be payable by the appellants of both the appeals half and half.