Short Note : 1. This second appeal is by the defendant against the reversing judgment of the Additional District Judge, Chhindwara. 2. The trial Court found that the passage E H C J was not proved to be commonly enjoyed by the plaintiffs and the defendant. The Court further held that the defendant was in the exclusive possession of the impugned portion for the last 25 to 30 years adversely to the plaintiff's, interest. The Court of first appeal was of the opinion that when in the written statement the defendant pleaded that his father and the father of the plaintiffs were brothers and in the year 1910 there was a partition between them and the disputed passage fell to the share of the defendant; unless the partition was proved the presumption of joint ness continued and the passage would be presumed to be jointly owned by the plaintiffs and the defendant. The approach of the trial Court was criticised and it was observed that the only question that required consideration was whether or not there was a partition in the year 1910. Since there was no evidence whatsoever to prove the partition, it had to be held against the defendant claiming exclusive ownership. There could then be no adverse possession. 2. Held: Looking to the facts of the case it appears true to me that the parties based their respective claim on the basis that they had long separated. It is not disputed by the learned counsel for the other side that portions O A. J k and P R S T are separately enjoyed by them and that portions to the east ED and E H are separate properties of the defendant. It. has to be accepted that the properties held by the two parties were not joint family property and there could be no question of presumption arising from the joint ness of the family. To this extent 'he Court of first appeal was clearly wrong. It was not necessary to prove the partition and the question of common user need not have been decided on the basis that the land continued to form part of the joint family property. 3. The position that emerges after considering the evidence and the findings of the Court below is that the defendant in the case could not establish adverse possession. 3. The position that emerges after considering the evidence and the findings of the Court below is that the defendant in the case could not establish adverse possession. The defendant came with a specific case of partition and it is not clear as to whether the impugned portition fell to the share of the defendant. On the other hand, the evidence points out that the passage through points A and B was commonly enjoyed by the plaintiffs and the defendant. At the end of the lane lay the portition P R S T used as a cattle shed by the plaintiffs and for coming our of that shed the only passage was through the impugned portion. There is no oral evidence as regards the user of the passage. The evidence led by the plaintiffs points out that it was used in common while the oral evidence led by the defendant is to the effect that it was used exclusively by the defendant. The circumstances point out that it could not be used exclusively There is no document which could assist in determining the rights over the land. The matter has therefore to be inferred from the circumstances and the situation of the properties. 4. It was held in The Secretary of State v. Bhatt Laxmishankar (AIR 1925, Born. 27), while dealing with an open space which was being enjoyed equally by all the surrounding houses and there was no other evidence of title as under: "Until the contrary is proved, it may generally be presumed, that the open space in a pole belongs to the owners of the surrounding houses and it would be for the owners of the other houses and not the municipality nor the Government to protest against any obstructions caused by the owner of one house against their common rights" 5. These observations were relied on by Krishnan, J. in Mannalal Kanchedilal v. Dalchand Kanhaiyalal (1960 MPLJ. 410) to determine the rights of the rival parties over the disputed land. it was observed that in such cases where there is no separate deed nor there was direct evidence on the title to the strip of land; the only appropriate and actual manner of enjoying the property being the use of it as water drain. the title bad to be inferred. it was observed that in such cases where there is no separate deed nor there was direct evidence on the title to the strip of land; the only appropriate and actual manner of enjoying the property being the use of it as water drain. the title bad to be inferred. In all such cases, it should be presumed that it is the common property of the parties in enjoyment Such a pres Imption could be rebutted by evidence: out in the absence of evidence, this would be the fairest inference. Undoubtedly, we are faced with the same situation in this case and the fairest inference could only be that the impugned portion was enjoyed in common by the plaintiffs and the defendant. I therefore, see no reason to interfere with the judgment and decree of the first Court of appeal. AIR 1925 Bom. 27 and 1960 MPU 410 relied on. Appeal dismissed.