1. ' The respondent filed a suit for declaration possession and manse profits in respect of Survey No, 53 situated in Deh Nahiki. It was pleased that the ancestors of the appellants transferred the said survey number along with other property by a register sales-deed to the ancestors of the respondents in the year 1919 and possession was delivered to them. In the year 1939 the respondent's father died and the entire property remained under the superintendence, control and management of the Court of Wards. In 1944 appellant filed suit No, 347/44 before Sub-Judge, Mirpurkhas for declaration that the sale-deed executed by their ancestors was mortgage and not sale. This suit was dismissed in the year 1946. The appellants filed appeal No, 32/46 which was dismissed in the year 1951. During the pendency of this appeal, on an application filed by the appellants the learned District Judge, passed an order Exh.78, dated 10-7-1946 restraining the respondents from dispossessing the appellants on their depositing in Court Rs,100 to cover the lease money for one year. Since then the appellant remained in possession. After dismissal of the appeal the appellant filed another suit for declaration that Survey No, 53 belongs to them and that the sale by their ancestors to the extent of 2/3 share in the entire land including survey No, 53 was illegal. The suit -was dismissed on 29-6-1953. The appellants preferred Appeal No, 26/53 which was also dismissed on 29-2-1956. It seems that the respondents then filed Suit No,11/58 for possession of Survey No,53 and manse profits @ Rs,100 p.m, from the year 1946, During the pendency of this suit the appellants filed Ilnd Appeal in the High Court against the order of dismissal of Appeal No, 26/53. By its Judgment, dated 27-3-1961 High Court held that so far Survey No, 53 is concerned the appellants were the owner to the extent of 1/3 share in the said property and so far the remaining 2/3 share it was observed that if the appellants have acquired adverse possession against the respondents it will be difficult to disposes them. In this background the appellant's contested Suit No, 11/58 raising plea regarding maintainability of suit and pleaded that suit was barred by time.
2. They averred that they are in possession of Survey No,53 from the time of their ancestors and claimed ownership on the basis of adverse possession. Learned trial Court decreed the suit holding that the appellants have failed to establish their continued adverse possession for 12 years and that the suit was not barred by time. The first appeal filed by the appellants was also dismissed.
3. The appellants have therefore challenged the judgment and decree passed by the learned District Judge in this Ilnd Appeal.
4. ' Mr.Khalid Niazi the learned Advocate for the appellants has challenged the impugned judgment on one ground only viz. that the finding of the Courts below that the suit is not barred by time is not warranted by law. Learned counsel contended that the appellants had filed the suit in the year 1944 for declaration that the sale was mortgage and from the order of the First Appellate Court Exh.78, dated 10-7-1946, it is clear that the appellants were in possession at that, therefore, when the respondents filed their suit for possession on 3-4-1958 the appellants were in possession for more than 12 yeaRs, The suit is, therefore, barred by time. The learned counsel contended that at least from the year 1944 appellant's possession was adverse to the respondents therefore, as suit was filed after expiry of 12 years from 1944 it was hit by the bar of limitation.
5. ' In order to appreciate the contention of the learned counsel it is necessary to keep in mind the nature of possession of the appellants and the dates which have been mentioned above and may be repeated again. The appellants had filed suit in the year 1944. After its dismissal, in appeal the learned District Judge passed an order Exh.78, dated 10-7-1946 in the following terms:- "Heard Mr.Hotechand for the applicant and Mr.Gidumal for the Court of Wards. The evidence of previous lessees of Survey No, 53 Motumal and Jhamumal Exhibits 17 and 20 shows that they were not in possession of this survey number at any time. The Judgment also shows that the applicant is in possession. I, therefore, order that injunction prayed for be issued on the applicant depositing in Court Rs,100 which would according to parties cover roughly the lease money for one year."
6. ' This appeal was dismissed on 29-2-1956 and Ilnd Appeal was filed on 27-3-1961. The appellants claimed adverse possession from the year 1944. However in July, 1946 they apprehended dispossession by the respondents and filed application for injunction whereupon order Exh.78 was passed. The appellants thereafter retained possession at the strength of this order which continued till the dismissal of appeal on 29-2-1956. The respondent filed suit for possession against the appellants on 3-4-1958. The appellants had maintained the said adverse possession hardly for a period of two years up to the date of the order A Exh.78. Thereafter their possession was permissive as ordered by the Court. Therefore, the possession of the appellants from 10-7-1946 cannot be termed as hostile and adverse to the respondents.
7. ' The admitted position is that in the Ilnd Appeal filed by the appellants which was disposed on 23- 7-1961 the appellants and respondents were held to be the co-shareRs, While disposing of the Ilnd Appeal following observation was made:- "Survey number 53, situated in Deh Nahki, taluka Tando Allahyar, District Hyderabad, was also the subject-matter of S.No,13 of 1951. The finding of both the Courts below is that this agricultural land is in possession of the appellants. In fact, the respondents admitted before the trial Court that the appellants are in possession of this particular property. In view of this, it is absolutely clear that the appellant's claim in respect of 0/5/4 ps. share is not barred by adverse possession, as was the case in respect of the other parties referred to above. Mr.Sher Ali, the learned counsel for the respondents could not satisfy me what prevented the learned Subordinate Judge to grant a declaration to the appellants in respect of the 0/5/4 ps. share in respect of this survey number.
8. Mr.Sher Ali contended that no decree for possession can be granted to them in this case in respect of the remaining 0/10/8 ps. share, because, to that extent, the possession is the same as in respect of the other survey numbers, which are the subject-matter of this appeal. This contention is well- founded, but at the same time if the appellants have acquired adverse possession' against the respondent in respect of the remaining 0/10/8 ps. share, it will be difficult for the respondents to dispossess them from the property in dispute. I will, however, not express any opinion on this question, and it will be open to the respondents to take appropriate proceedings for the recovery of the possession of 0/10/8 ps. share in survey number 53 in separate appropriate proceedings. In my opinion, the claim of the appellants in respect of 0/5/4 ps. share does not in the least suffer from any legal bar which could prevent the learned Subordinate Judge to give a declaration of their claim to the extent of their share. Accordingly, I will allow the appeal and give the appellants a declaration that they are co-owners in the property in dispute to the extent of 0/5/4 ps. share in Survey No,53, situated in Deh Nahki, Taluka Tando Allahyar District Hyderabad.
9. ' From this observation it is clear that appellants were in possession of Survey No,53 having at 1/3 share and no observation was made about their having acquired any right by adverse possession.
10. The question arises whether appellants have established adverse possession for 12 years? In this regard the law is well-settled. The posession of one co-owner is ordinarily held to be for the benefit of all tjie co-owners and will not be presumed to be adverse to the other. In this regard reference can be made to Corea v. Appuhamy 1912 AC 230, Muttuenayagan v. Brito 1918 A C 895, Hardit Singh v. Gurmukh 64 .PR 1918 P C and Varada Pillai v. Jeavanathnammal 1919, 43 Mad 244 P C. Every co- owner is entitled to use and possession land without adversely affecting the title of the other co- owner. A mere user by one sharer will not amount to ouster of possession of the other co-sharer, in the land. Where a co-owner claims adverse possession against the other co-owner much stronger evidence is required to establish an adverse possession. Such co-owner can succeed if he conclusively establishes that he has openly repudiated the title of his co-owner. Such repudiation should be coupled with the fact that the adverse possession was brought to the notice of the other co-owner. Such notice can be inferred from the obvious, overt and declared acts of ouster which are so manifest that no other inference can be drawn except that it is a clear denial of title known to the concerned persons. Mere silent possession and use will not amount to denial of title or property rights of the other co-owner. The adverse act should be openly proclaimed and should be so notorious that it may lead to no other conclusion but the denial of title. Rustomji in his book 'On the law of Limitation and adverse possession' after referring to various authorities concluded that "mere possession however exclusive or long continued if silent cannot give one co-tenant in possession title as against the other co-tenant. The possession of one co-owner is the possession of all the co-owners, and in the absence of an ouster or something equivalent to ouster, time does not run against the co-owner not in possession." Reference was made to 1923, 50 Cal. 487 and 1950 Mad.
11. 1084.
12. Now applying these principles to the present case it seems that the appellant has not satisfied the conditions necessary for claiming dverse possession for twelve yeaRs, Both the learned Courts have held that the appellants have not been able to establish that they were in continuous adverse possession of S.No,53 against respondents for twelve yeaRs, As observed earlier the possession if at all hostile was E from the year 1944 but it was interrupted in 1946 and from 10-7-1946 it continued under the orders of the Court otherwise as apprehended by the appellants the respondent would have dispossessed them. The appellant's possession was adverse hardly for a period of 2 yeaRs, And when the respondents filed the suit the appellants were not in adverse possession for 12 yeaRs, In the circumstances the respondent suit was not barred .by time.
13. ' For reasons stated above the appeal is dismissed with no order as to cost.