Possession of co-owners to be presumed possession of all.

Legal representatives of the plaintiff in O.S. No.135 of 1976, on the file of Additional District Munsif s Court, Kuzhithurai, are the appellants.

2. The suit was one for partition. The following averments were made in the plaint: One Abdur Rahman had three children, viz., defendants 1 and 2 the plaintiff. In the entire survey number, he had 1/12th share, and on his death, it devolved on the original plaintiff and defendants 1 and 2. There was a suit for partition in O.S. No.310 of 1960, on the file of the District Munsif’ s Court, Kuzhithurai. That suit was filed by the other co-owners in the survey number with defendants 1 and 2 as legal representatives of Abdur Rahman. Defendants 1 and 2 herein were defendants 32 and 33 in that case.

3. Towards l/12th share, plaint property was allotted and the same was taken by defendants 1 and 2 on behalf of the plaintiff and other legal heirs of Abdur Rahman. It is also said that on 112. 1116 M.E. there was a partition between defendants 1 and 2, plaintiff and the widow of Abdur Rahman, and the plaint item was not included therein. It was said that in case there was any property available, that belonged to Abdur Rahman, the same may be partitioned as and when the same is made available or made out.

4. It is said that the plaintiff was demanding partition of this property. But the defendants were refusing to do so, and ultimately, in the cause of action, it is said that they have sold the property to other defendants, as per sale deed dated 23. 1976, as evidenced by Ex.B-14. A stranger is now allowed to be in possession. Ignoring the same, plaintiff claimed that he is entitled for partition of one-third share.

5. In the defence, it was contended that the plaintiffs are not entitled to any share. Their father has executed a will whereby the plaint property was given to them. It is also said that in the earlier partition suit, they alone were recognised as legal owners and they have taken possession of the same as absolute owners, and not on behalf of the plaintiff also. They said that the sale in favour of the other defendants are valid, and the same cannot be questioned by any one. The alienee also put forward a similar contention.

6. As per revised judgment dated 26. 1980, a preliminary decree was passed in favour of the plaintiff. The alienees, namely, defendants 3 and 4 filed appeal before the lower appellate court as A.S. No.128 of 1980. The lower appellate court held that the plaintiff is not entitled to get partition, since there is ouster and it is more than 12 years, and that therefore the suit is barred by limitation and adverse possession.

7. The legal representatives of the original plaintiff have filed this appeal.

8. At the time of admission of the second appeal, the following substantial question of law was framed.

"Whether defendants 1 and 2 can claim adverse possession relying on Ex.B-16, in spite of Ex.A-1, partition deed, to which they are parties?"

9. Plaintiff and defendants 1 and 2 are co-owners, cannot be disputed. In fact, that was not challenged by any one. It is said that there was a will dated 9. 1108 M.E., whereby the property was allotted to them only. But that statement also cannot be correct, for at that time, the property was not acquired by the acquirer. The will was in 1108 M.E., whereas the acquisition was 1111M.E.

10. That apart, even the defendants, legal heirs of the acquirer, have given a goby to the so called will, by executing Ex.A-1 partition deed. Under that deed, plaintiff was given shares, de hors the so-called will. There is also a further statement in Ex.A-4 that if in case any other property is found to be as belonging to the deceased, it will be distributed in accordance with shares under law. So, there was an obligation on the part of the defendants to distribute any property which was subsequently found out or which was not partitioned under Ex.A-4.

11. As stated earlier, the original acquirer had only undivided right i