Ray, J.This is a plaintiffs second appeal against the appellate decree of the Additional District Judge of Saran upholding the judgment of the trial Court in dismissing the suit with costs.

2. The suit in which this appeal arises was instituted by four plaintiffs of whom plaintiffs 2, 3 and 4 are donees in respect of a part of the suit property from plaintiff 1. The allegations on which the cause of action for the suit is based are as follows: One Harnam Rai had four sons Mahip Rai, Nidha Rai, Surat Rai and Prayag Rai, Plaintiff 1 Dipnarain Rai, claims to be the grandson of Surat, he being the son of Thakur Rai since deceased. Of the aforesaid four brothers, Prayag Rai separated from the family and we are not concerned with his branch in this appeal. According to the" plaintiffs, the other three brothers Mahip, Nidha and Surat and their descendants continued to be joint in mess and estate. Nidha died issueless in the state of jointness, Mahip and two out of his three sons died in a state of jointness leaving Banarsi Rai surviving. Similarly in the branch of Surat, the plaintiff is the only surviving male member, plaintiffs 2 to i being the sons of his two sisters Bhagwati Kuar and Shyamsunder Kuar. While the plaintiff, his father Thakur Rai and Banarsi were living as members of a Hindu Mitakshara joint family, plaintiff 1 went to serve as a member of the Calcutta police and in 1909 he went away to South America. His father having died before the revisional survey, Benarsi Rai was alone recorded in that survey in respect of the entire joint family properties.

3. The plaintiff No. 1 returned from South America arriving at Calcutta on 21-10-1938. On his return home, he found that Banarsi had died and there was no member of the family either male or female then surviving.

4. He then alleges that Ramlagan Rai, Sheomangal Rai, Khobhari Rai and the defendants came into possession of the properties belonging to his family under the direction of Benarsi Rai and his mother as trustees for plaintiff 1. Plaintiff 1 having made a gift of his properties in favour of his sisters sons, plaintiffs 2 to 5, under a deed of gift dated 11-2 1939, She defendants were enraged and began interfering with his possession as a result of which a proceeding u/s 144 of the Code of Criminal Procedure was started between them. The said proceeding, however, terminated in favour of the defend ants. Hence, this suit for a declaration of title and recovery of possession.

5. The defence set up by the defendants, inter alia, was that plaintiff No. 1 was not a descendant of Harnam Rai, his alleged grandfather. Surat Rai being the son of one Bissessar Rai and not of Harnam Rai, that the defendants were legal heirs of Banarsi, and that they having been in possession of the properties for more than 20 years since the death of Banarsi, they had acquired title by adverse possession and the plaintiffs suit was, therefore, liable to be dismissed.

6. The trial Court came to a finding that the plaintiffs had failed to establish that plaintiff No. 1 was a descendant of Harnam Rai and hence they failed too to establish their title to the disputed properties. With regard to the plea of limitation, the trial Court held that the plaintiffs case was not governed by the provisions of Article 142 of the Limitation Act but it was governed by Article 144; but, however, the defendants having been in possession for more than 12 years since the death of Banarsi Rai, which took place in the year 1920, the defendants had acquired title by adverse possession. In support of the adverse character of the defendants possession the learned Subordinate Judge relied on Exs. D and E which showed that in a proceeding u/s 105 of the Bengal Tenancy Act in 1921 Khobhari Rai the ancestor of the defendants was substituted in place of Banarsi as the latters heir, and the receipts Ex. A series which showed that since the death of Banarsi in about 1920, the defendants were paying rent in respect of the lands, and lastly on Exs. C series from which it appeared that the defendants had made various transfers of different parcels of the disputed properties in assertion of their right of ownership. In short, the learned Subordinate Judge held that the defendants possessed the properties in assertion of their own rights, with adequate openness, continuity, notoriety and without any attempt at concealment, and therefore they had acquired title by adverse possession. In his view the question of knowledge of such adverse possession on the part of the plaintiff was quite immaterial.

7. The Additional District Judge in appeal differed from the learned Subordinate Judge with regard to the question of the plaintiffs title His finding on this will appear from the following passage taken from his judgment:

I hold that the plaintiffs father Thakur was joint with Mahip and his sons. The plaintiff No. 1s father admittedly died after the plaintiff No. 1 had left for British Guiana and America. I held that the plaintiffs father died in a state of jointness with Banarsi who was the only descendant of Mahip then alive. I am not prepared to attach any weight to the fact that Thakurs name was not recorded in the cadastral survey. Thus it is clear that the plaintiffs have proved that plaintiff No. 1 had title to the properties belonging to the family of Harnam, and that he became entitled to them all by survivorship on the death of Banarsi. The properties in suit are admittedly properties belonging to the family of Harnam. Admittedly there is no other member of the family of Harnam left. Thus there can be no doubt about the title of the plaintiff to the lands in suit and I hold accordingly.

8. On the question of extinguishment of the plaintiffs title by adverse possession of the defendants, the learned Additional District Judge concurred with the view taken by the trial Judge. The material facts on which he based his conclusion are stated thus by him:

Admittedly Banarsi died about the year 1920 after the revisional survey and admittedly the plaintiff was not in India at the time and he continued to be absent until October, 1938. He instituted the suit on 16-11-39, that is, only a little over a year after his arrival in India. It is also common ground between the parties that during the period of the absence of plaintiff No. 1 from India, the defendants and their ancestors were in possession of the lands in suit after the death of Banarsi.

9. Later in his judgment, he concludes to the effect that the possession of the defendants and their-ancestors must be deemed to be adverse for two reasons, namely, that the defendants ancestors could not be holding on behalf of plaintiff 1 as they did not even know whether he was alive, nor could it be said that the defendants were holding possession permissively as the person who could give such permission was not known to be alive, he having been admittedly traceless at the time, and secondly that plaintiff 1 could by exercise of due deligence have known that the defendants were exercising acts of possession over the suit properties, and that they were doing so in their own right.

10. In this appeal, there is no controversy that except for acquisition of title by adverse possession by the defendants, title would lie with the plaintiff. The outstanding question for consideration, therefore, is whether under the circumstances of the case the possession of the defendants can be held to be adverse to the plaintiffs. There is no dispute that this is a case to which Article 144, Limitation Act applies. According to the Article, the 12 years period of limitation begins to run when the possession of the defendants becomes adverse to the plaintiff. The crux of the question for determination, therefore, is when the possession of the defendants became adverse to the plaintiff.

11. It is not controverted at the Bar that possession of Banarsi as a member and more so as a manager of the Hindu joint family was on behalf of all the coparceners. Plaintiff No. 1, therefore, was in possession through him till his death in the year 1920. At the time of his death the plaintiff No. 1, who alone amongst the plaintiffs was entitled to immediate possession of the properties, was out of India. In his absence the ancestors of the defendants stepped into the shoes of Banarsi in assertion of their status as his heirs. The question, therefore, turns upon the consideration, whether this assertion of theirs combined with their actual physical possession of the properties, in suit, amounts to an ouster of the plaintiff, or, in other words, whether their possession as such begins to be adverse since then. That they asserted themselves to be heirs of Banarsi is clear from Exs. D and E series, noticed above, and this was in the year 1921. It is contended by Mr. P.R. Das for the appellants that every possession is not necessarily adverse. In favour of his proposition that the possession of the defendants under the particular circumstances of this case was not adverse, he relies upon two circumstances, namely (1) that the defendants having stepped into the shoes of Banarsi as against plaintiff No. 1 and Banarsis possession being on behalf of the plaintiff No 1, they could not claim any higher right by their possession, and (2) that there is nothing on record to prove any circumstance which if known would give the plaintiff sufficient notice that the defendants possession amounted to or started with repudiation of the plaintiffs vested title that was inherent in the joint family estate held and represented by Banarsi in his lifetime and then surviving to him.

12. The classical requirements of adverse possession as propounded by the Privy Council from time to time are that the possession must be nec vi nec clam nec precario, that is to say, the possession required must be adequate in continuity, in publicity and in extent. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. In (1934) 66 MLJ 134 (Privy Council) their Lordships negatived the contention that it was necessary for the trespasser to bring the facts of his adverse possession to the notice of the real owner. Dr. D.N. Mitter, appearing for the respondents, contends that in view of the aforesaid principle of law as enunciated by their Lordships of the Privy Council, the possession of the defendants which fulfilled the above conditions would be held to be adverse since its very commencement.

13. This argument, however, overlooks the fact that the practical application of the aforesaid principles is a matter of some difficulty in reference to varying features of particular cases. In AIR 1935 36 (Privy Council) their Lordhips, with reference to the particular facts of that case, expressed themselves to say that, in their Lordships opinion, the defendants had failed to show that the plaintiffs predecessors by exercising due diligence ought to have been aware of what was happening apart from the question that the defendants possession was adequate, in continuity and extent, and that the failure of the plaintiffs predecessors to notice these things, even if they were sufficient, when seen, to put them on their guard involves, in the opinion of their Lordships, no lack of reasonable vigilance on their part, and the defendants case must fail on this point. In this case their Lordships also found that there was no attempt at concealment.

14. This dictum of their Lordships makes it very clear that mere exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening.

15. It will appear from the following review of cases that the requirement to make possession adverse vary according to the peculiar facts of each case and depend upon the particular back ground of facts and relationship of the parties and other like circumstances in which the adverse possession commences. In AIR 1935 53 (Privy Council) their Lordships of the Privy Council have said that the principle of law firmly established is that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed, and that possession that is at its inception permissive must be shown to have become adverse by some subsequent change in its character.

16. In Ambu Nair v. Secy. of State AIR 1924 A.C. 150 their Lordships held that a licensee cannot claim title only from possession, however long, unless it is proved that the possession was adverse to that of the licensor, to his knowledge and with his acquiescence. Knowledge or notice of adverse act is necessary when permissive possession is admitted to he changed to adverse possession. Possession of a derivative holder may be deemed to be possession of the original owner.

17. It has also to be borne in mind, as a settled principle of law, that acts which prima facie are acts of dispossession may under particular circumstances fall short of evidencing any kind of ouster. They may be susceptible of another explanation, bear some other character or have some other object when placed in juxtaposition with some other facts and circumstances.

18. In the particular facts of the present case, the defendants possession may be referable to their heirship to Banarsis personal estate or may as well be referable to a state of mind in consonance with the honest intention of holding the estate in safe custody till and subject to the plaintiff 1, who was then traceless, coming back and claiming. They have proved no act of theirs which is referable and referable only to their claiming in denial of the plaintiff 1s title even if the latter be alive. The preferential right of custody of ones goods also depends upon ones preferential heirship. Therefore, claim of heir-ship of Banarsis estate is not without more a circumstance from which the true owner should be aware of his title being invaded. The state of mind of the true owner is a factor to be taken into consideration.

19. In Jagannath Marwari v. Sm. Chandni Bibi AIR 1921 Cal. 647 in which the question of adverse possession arose as between co-tenants it was held that in order to establish adverse possession as between the co-sharers, there must be evidence of an open assertion of a hostile title by one of them to the knowledge of the others. Mere non-participation in the profits by one party and exclusive occupation by the other is not conclusive. Mookherjee J., after laying down the aforesaid principle while dealing with the facts of the case, said:

Indeed, before this-action was brought, there wag no attempt on the part of the defendants to rely on adverse possession, their pretence was that they were the rightful owners, and one of them, the first defendant, has pledged his oath in support of that untrue allegation in the witness-box in this suit; they cannot consistently urge that from 1901 the first defendant began to hold adversely to the knowledge of the rightful owner.

20. In Thomas v. Thomas (1855) 2 K. & J. 79: 25 L.J. Ch. 159 Wood, V.C. held that possession is never considered adverse, if it can be referred to a lawful title.

21. The original owner may exercise possession over his property through his representative whose possession is in law deemed to be the possession of the principal, but if the representative changes his mind and determines to hold the property on behalf of himself, strictly speaking, the possession of the principal is gone, but the law interferes in favour of the principal and holds that his possession continues at least until the denial of his right is brought to his knowledge. In Govindswami Chettiar v. Kothandapani Chettiar AIR 1927 Mad. 111 the question arose whether the plaintiff had been excluded from a house which was joint family property. The plaintiff bad been absent for many years in the Straits Settlements. Defendant 1, another member of the family, executed a sale-deed in respect of the property and the alienee took possession thereof. Odgers, J. held on the question of adverse possession that the fact that Article 141 applied to suits against the alienee of a coparcener and not Article 127 did not make any difference as obviously in considering cases of adverse possession one is clearly entitled to consider the origin and quality of the possession and that unless exclusion or abandonment is proved, the question of adverse possession" did not arise. His Lordship said:

A point which had come before me on a previous occasion has been agitated in this case, namely, as to whether adverse possession can be acquired against a coparcener without his being put on notice either actual or constructive that adverse possession is running against him. There are cases on either side of the line and the matter does not appear to have been authoritatively disposed of or at least as far as this Court is concerned. I had occasion sitting with Mr. Justice Ayling in S.A. 2019 of 1920 to examine the cases on this question at some length and my opinion then was that such adverse possession could not be acquired without notice to or knowledge of the coparcener against whom it was so acquired. The same opinion was expressed by Ayling and Tyabji JJ. in Muthukrishna Aiyangar v. Sankaranarayana Aiyer AIR 1915 Mad. 447 .

22. In Mt. Sitabai v. Jumo (35) 157 I.C. 283, (Sind Judicial Commissioners Court) it was held that there could not be adverse possession if the defendant himself did not know that he was occupying somebody elses land. He must have the intention of using the property adversely against the other claimant.

23. In Bhaiji Shamrao v. Hajimiya Mohammad (12) 14 Bom. L.R. 314, it was held that the possession of joint property by one co-sharer does not constitute adverse possession against any other co-sharer until there has been a disclaimer of the latters title by open assertion of a hostile title by the former. The facts giving rise to that case were that A and S were joint owners of certain property. Both of them mortgaged-the same to B in 1866. A alone redeemed the mortgage in 1882 and mortgaged the same to the defendants who entered into possession of the property and leased it out to his heirs. The heirs of S sold their rights in the property to the plaintiff who sued in 1908 to redeem the mortgage of 1866. It was found as a fact that no knowledge of exclusion or adverse possession by A could be imputed to Ss heirs. The defendants contended that the rights of Ss heirs were barred by the law of limitation. It was held that so long as A took no step to assert a title against the plaintiff or those under whom he claimed in such a manner as to challenge their right to redeem their interest from her, the possession of A and her mortgagees would not be adverse to the plaintiff or his predecessors-in-title except in so far as the mortgagees might set up a limited title under Article 134 of the Limitation Act.

24. In Halim Shah v. Rahim Bux AIR 1930 Oudh 475, it was held that a person who takes a transfer from a co-tenant or co-owner steps into the shoes of his transferor. When he takes the assignment he is clothed with all the rights and becomes subject to all the liabilities of his transferor. In short, he becomes as much a co-tenant or co-owner as his transferor was before the transfer. This being the position there is not good reason for the rule applicable to co-owners and cotenants not being applied to the transferee.

25. In Subah Lal Vs. Fateh Mohamad the plaintiffs inherited a half share of;a shop and their first cousins inherited the other half and the entire shop was in the possession and management of these first cousins. They transferred the shop to the defendant in April 1910, who was in continuous possession since then. In November 1924, the plaintiffs sued to recover possession of their share of the shop, and the question arose whether the defendants possession should be deemed to have been adverse since April 1910, with the result that the suit was barred by time. The findings of fact were that the plaintiffs neither had any knowledge of the usufructuary mortgage nor had any reasons to suspect the conduct of their first cousins whose possession had not been in denial of the plaintiffs title. It was held by Sulaiman and Niamatullah, JJ. that the defendants possession could not be deemed to have been adverse to the plaintiffs from the date of the usufructuary mortgage, and the suit was not barred by limitation. As regards co-owners, the law is that there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the others; and the same principle applies to the case of a transferee front a co-owner who professedly takes a transfer of the whole property from him. There can be no difference in principle whether a person is the original co-owner or has become a co-owner by virtue of a transfer.

26. With reference to the last quoted decision, it may be observed that the mere fact of one co-owner assigning the whole interest, that interest being in excess of his own share, was not considered a circumstance calculated to give notice of hostile assertion of title to the other co-owner.

27. In the present case, the defendants ancestors took possession of the disputed properties on the death of Banarsi by asserting themselves to be heirs of Banarsi. As I have shown above, there is no difference in principle in considering the question of adverse possession as between two co-owners and between a co-owner and a transferee from another co-owner. I find no difference in principle to show in what way a co-owners heir can stand on a better footing than an assignee. The defendants, therefore, in order to establish adverse possession as against the plaintiffs must show that there was an ouster of which the plaintiff had either actual or constructive notice. Much reliance is placed upon the sale deeds of the year 1925 (the other ones being within 12 years of the suit are immaterial) executed by the defendants in respect of a part of the disputed properties, and it is contended that these transactions establish beyond doubt that they were asserting their own title in denial of the title of true owner. But these documents were executed in order to raise funds to pay off debts incurred by Banarsi. These transactions, therefore, do not militate against the possession of the defendants being of the same character as that of Banarsi himself.

28. The defendants having stepped into the shoes of Banarsi, their possession is subject to such equities in favour of the plaintiffs as were available to them as against Banarsi. If Banarsi ever had attempted to assert a hostile title in repudiation of the title of the plaintiff No. 1 his possession thereafter would not have been deemed to have been adverse unless this assertion was brought home to the knowledge of the plaintiff.. The learned Additional District Judge has found as a fact that neither the defendants nor their predecessors ever knew that the plaintiff No. 1 was alive. Under the circumstances, it is inconsistent on the part of the defendants to say that they were prescribing as against the plaintiff No. 1 or their assertion was in denial of the latters title.

29. It has been strenuously contended by Dr. Mitter that the question of adverse possession is a question of fact, and this Court has no jurisdiction to interfere with the concurrent findings on this point recorded by both the Courts below. I cannot accept this contention to be sound. The question is a mixed question of law and fact. To decide what are the elements that are necessary, in view of the special features of a particular case, in order to attribute the character of adverseness to the defendants acts of possession is a (question of law and if the Court of fact has misdirected himself as to these elements, he must be deemed to have committed an error of law.

30. The learned Additional District Judge has misdirected himself in law in arriving at a finding that mere acts of physical possession of the defendants without anything more were adverse to the plaintiffs from the very start. I have said it was not so till even the sale transactions of the year 1925. The adverse possession must be for the full statutory period. The defendants claiming to be representatives-in.interest of Banarsi cannot be considered to have asserted anything more or anything less than if Banarsi had suddenly started charging the character of his possession. Beyond doubt, plaintiff No. 1s suit against Banarsi for recovery of possession would not fail merely for his act of possession combined with assertion of his individual and exclusive title but the defendant Banarsi in order to defeat the plaintiffs suit would have had to prove that the statutory period of 12 years had passed before his suit since "the exclusion became known to the plaintiff" (to use the words of clause III of Article 127, Schedule I, Limitation Act). The requirements of adverse possession by Banarsis heir would be the same as above. Instead of the defendants, suppose Banarsi was succeeded by his son, widow or mother. It would be the height of absurdity to contend that their possession in order to be adverse need not be subject to the same limitations as that of Banarsi. The defendants do not claim to have been prescribing for any right higher than that of Banarsi. They could not successfully hold the disputed estate free from the charges, liens, liabilities and other equities to which Banarsis estate in his hand and on account of his doings would be liable. If so, I can see no principle in law in which would exonerate them (defendants) from fulfilling those very requirements of law to gain title to the extinguishment of that of the plaintiff 1 which would have been needed to have been fulfilled by Banarsi. As they were in actual physical possession in the shoes of Banarsi, they were recorded in the record of rights and as such in the landlords rent roll. Their dispositions of property by sale deeds in the year 1925 were for paying off Banarsis debts, that is, the debts of the family and the subsequent dispositions were within 12 years of the suit. Their act of possession can, in view of the fact that they did not know if plaintiff 1 was alive, under no circumstances be predicted to be attributable to repudiation of the title of plaintiff 1, a person unknown to them.

31. Different considerations would arise if they claimed adversely to Banarsi. Dr. Mitter argues that they were claiming adversely to Banarsis heir. This argument ignores the fact that plaintiff 1 is net an heir of Banarsi. He bad his vested right all along throughout all the material time. In that position their (defendants) position would not be a whit better than that of a co-owner or co-sharer with the plaintiff 1. The possession of a co-owner without more is not adverse.

32. In view of what I have said above, I hold that the learned District Judge was wrong in law in finding that the plaintiffs title had been extinguished by adverse possession of the defendants.

33. In this view of the matter the appeal succeeds and must be allowed with costs.

Meredith, J.

34. I agree. In my opinion there was nothing in the defendants conduct which could properly be regarded as putting the plaintiff number one upon notice that they were holding the property adversely to him, and not on his behalf if and when he should ever () return. The defendants as heirs of Banarsi would be the proper persons to hold and look after the property in either case in the plaintiffs absence. Merely by reason of their holding it, therefore, the plaintiff however vigilant could not have become aware of any assertion of title hostile to him.