1. This is an appeal by the plaintiffs in a suit fordeclaration of title to land and for recovery of joint possession thereof alongwith the defendants. The land in dispute is included in an estate owned jointlyby the plaintiffs and the defendants. Both the plaintiffs and the defendantswere dispossessed by the proprietor of a neighbouring estate, who tookpossession of the land on the assertion that it formed part of his estate.Subsequently, the defendants took a lease of this land from the adversepossessor. The plaintiffs, assert that as the defendants are their co-sharers,their possession cannot be treated as adverse to them. The Courts below haveconcurrently overruled this contention, which appears to us to be wholly unfounded.

2. Reliance has been placed by the plaintiffs on thedecision of the Judicial Committee in the case of Corea v. Appuhamy (1912) A.C.230 : 81 L.J. P.C. 151 : 105 L.T. 836 where Lord Macnaghten stated, with regardto the possession of a co-owner, that his possession is in law the possessionof his co-owner, and it is not possible for him to put an end to thatpossession by any secret intention in his mind; nothing short of ouster orsomething equivalent to ouster can bring about that result. That doctrine hasno application to the circumstances of the present case. Here the possession ofthe plaintiffs was not terminated by the defendants. The possession of both ofthem was terminated by a hostile claimant. The defendants subsequently cameinto possession under a lease granted by the claimant. Their possession mast bereferred to the title which they acquired under the lease, and not to theirtitle as co-owners of the property held by them and the plaintiffs jointly. Nodoubt, as observed by Wood, V.C. in Thomas v. Thomas (1855) 2 K.J. 79 : 110R.R. 107 : 25 L.J. Ch. 159 : 1 Jur. : (N.S.) 1160 : 4 W.R. 135 : 69 E.R. 701possession is never considered adverse, if it can be referred to a lawfultitle. Here, however, the possession of the defendants is referable only totheir title as lessees under a person who claims to hold adversely both to theplaintiffs and the defendants. We must, consequently, hold, on the principlesexplained in Lokenath Singh v. Dhwakeshwar Prosad Narayan Singh 27 I. C. 465 :21 C.L.J. 253. : 20 C.W.N. 51 that there was an ouster of the plaintiffs by thedefendants, and as that ouster has continued for more than 12 years, the titleof the plaintiffs has been extinguished.

3. The result is that the decree of the Sub-ordinate Judge isaffirmed and this appeal dismissed with, costs.

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Biseswar Gangooly and Ors. vs. Bhagabati Charan Banerjee andOrs. (13.05.1915 - CALHC)