JUDGMENT M.L. Malik, J.—This is an appeal by the defendants against the judgment and decree of the Court of the Additional District Judge, Betul, in Civil Suit No. 36-A of 1966 dated the 30th November, 1967. 2. Smt. Damdibai had filed the suit for joint possession to the extent of her half share in the fields; Khasra Nos. 48/3 area 0.45 acres, 48/4 area 2.90 acres, 61 area 13.66 acres, 101 /2 area O.72 acres and 102 area 2.35 acres of mouza Rondha, tahsil and district Betul and in the two houses, one situated in the Abadi and the other in Khasra No. 61. The Additional District Judge gave a decree in her favour except in respect of Khasra Nos. 101/2 and 102, which he held, were the self-acquired property of Mahangilal. 3. The following genealogical tree will elucidate the judgment: Panchu (died sometime before 28-9-1891) Kallu Nanha (died on 28-9-1891) widow Smt. Raso (died on 15-2-1933) One daughter (died on 30-11-1933) Damdibai (Plaintiff) (died during the pendency of the appeal on 24-4-1971) Mahangilal (died on 4-10-1964) widow Sarjoobai (Defendant No, 3) (Her legal representatives are the Respondents.) [Defendants 1 and 2 are sister's sons of Sarjoo. They are transferees of the property from Sarjoo, vide sale-deed dated 5-11-1964.]. 4. According to the plaintiff-Damdibai the lands in suit were held in ordinary tenancy right by Panchu. On his death, his two sons, Kallu and Nanha inherited them. On the death of Kallu, Smt. Raso inherited his interest and she and Nanha held the lands as tenants in common. On the death of Smt. Raso, her interest passed by inheritance to her daughter, the plaintiff. That the cause of action for the suit arose on account of the transfer of the entire property by Smt. Sarjoobai in favour of her sister's sons. She could not transfer the plaintiff's half share. 5. The defendants pleaded that the lands other than Khasra No. 61 were the self-acquired property of Mahangilal, in which the plaintiff could claim no share. That even Khasra No. 61, on the death of Kallu, would pass by survivorship to Nanha. Smt. Raso had only a right to claim maintenance. In any case, after the death of Smt. Raso in 1933, Mahangilal alone managed the lands in his own rights. The plaintiff claimed no share and Mahangilal prescribed title by adverse possession. That even Khasra No. 61, on the death of Kallu, would pass by survivorship to Nanha. Smt. Raso had only a right to claim maintenance. In any case, after the death of Smt. Raso in 1933, Mahangilal alone managed the lands in his own rights. The plaintiff claimed no share and Mahangilal prescribed title by adverse possession. The defendants 1 and 2 further asserted that they were purchasers from an ostensible owner and, therefore, the plaintiff was not entitled to disturb their possession. They further pleaded that there had been a partition between Smt. Raso and Nanha in the year 1912. Smt Raso was given her share of the lands. The lands in dispute fell to the share of Nanha and the plaintiff could not lay a claim over them. 6. As aforesaid, the plaintiff's claim for joint possession has been decreed except in respect of Khasra Nos. 101 /2 and 102 and the defendants have come up in appeal. There is no cross-appeal or cross-objection in respect of the claim disallowed and we must abide by the finding that Khasra Nos. 101/2 and 102 were the self-acquired property of Mahangilal. It is also conceded that the house in the Abadi would pass by survivorship to Nanha and the plaintiff could claim no share in it. We would, therefore, be concerned in this appeal with the Khasra Nos. 48 /3, 48 /4 and 61 of mouza Rondha and the house situated in Khasra No. 61. 7. As would appear from Ex. P-2 (Nakal Jamabandi of the year 1894-95). Nanha and Raso were shown as co-tenants in respect of 60.59 acres, out of which 29.45 acres were held in absolute occupancy rights, 4.19 acres in occupancy rights and the rest in ordinary occupancy rights. Khasra No. 174 shown in this Jamabandi was renumbered as Khasra No. 61, and old Khasra Nos. 207 and 211 total area 13.14 acres were renumbered as Khasra No. 48 in the settlement year of 1917-18. (The renumbering Parcha is Ex. P-15). Initially, therefore, the family was in possession of the whole of Khasra No. 48. The defendants have sought permission of this Court to bring on record a sale-deed dated 10th August, 1937, whereunder Mahangilal had sold the entire Khasra No. 48 area 13.18 acres to Beharilal Bhoyar. Mahangilal purchased back a portion of this land by sale-deed dated 28-3-1957 (Ex. 1/2-D-4) from Bhaiyalal Bhoyer. The defendants have sought permission of this Court to bring on record a sale-deed dated 10th August, 1937, whereunder Mahangilal had sold the entire Khasra No. 48 area 13.18 acres to Beharilal Bhoyar. Mahangilal purchased back a portion of this land by sale-deed dated 28-3-1957 (Ex. 1/2-D-4) from Bhaiyalal Bhoyer. We have to consider in this appeal whether the property lost to the family, if re-acquired by one of the members, should be treated as his self-acquired property. The disposal of Khasra Nos. 48/3 and 48/4 shall depend upon that. Khasra No. 61, however, continued with the family all along. We are also required to consider how the house, the well and the pumping sets in Khasra No. 61 should be dealt with if they had been constructed and set up by Mahangilal alone with his own exertions. 8. The learned Additional District Judge, relying on the authority of this Court reported in Smt. Rewati Vs. Smt. Gouribai and Others, held that since the devolution opened on the death of Kallu in 1891, the state of law as understood under the C.P. Tenancy Act of 1883 then in force, would govern the relationship of parties and that the later interpretation by Federal Court in AIR 1941 72 (Federal Court) , that the term 'devolution' would include the rule of survivorship, could not divest the interest already vested in a person long ago, and that the principles of 'stare decisis' should come to help in retaining and maintaining the vested and settled rights. The authority, as we read it, is in all force applicable to the present case. The placitum gives the facts and pronouncement of law pithily thus; The suit property consisting of occupancy lands originally belonged to A, who died sometime before the year 1897. It was inherited by hi& two sons G and S, who were members of a joint family. In the year 1897, G died, leaving daughters. Thereafter S's name was entered in the revenue records as occupancy tenant. In the year 1954 S died, leaving daughters. The respondents, daughters of G, filed the suit after the death of S, claiming half share as against the daughters of S. The defence was that the plaintiffs as daughters of G could not claim any share because, at the death of G, S, being joint with him, became exclusive tenant. In the year 1954 S died, leaving daughters. The respondents, daughters of G, filed the suit after the death of S, claiming half share as against the daughters of S. The defence was that the plaintiffs as daughters of G could not claim any share because, at the death of G, S, being joint with him, became exclusive tenant. It was found as a fact that although the holdings was recorded in the name of S alone after the death of G, the former used to give to the daughters of G, their share of the crop produce from the holding. The question was what rights G and S acquired in the property of their father sometime before 1897 when A died. Held (i) according to the State of law as understood before 1897 when A died, there is no doubt that the Judicial Commissioner's Court of Nagpur specifically excluded the rule of survivorship and coparcenary in the matter of devolution to tenancy holdings. As such, it could not be said that G and S inherited the suit property as joint tenants after their father's death. They could only inherit as tenants in common, with the result that, upon the death of G, his interest would devolve on his daughters and not on the surviving joint coparcener S. From the circumstances in the case it was clear that the parties for a long time from the year 1897 to the year 1954, acted on the view of the law as declared by the Court of the Judicial Commissioner. Otherwise, there was no occasion for S to give to the daughters of G their share of the crop produce. Therefore, this case would be a suitable case for the application of the principle of stare decisis so as not to unsettle the vested and settled rights of the parties on account of a subsequent authoritative interpretation of the law in In re Hindu Women's Rights to Property Act or on account of the later C.P. Tenancy Amendment Act, introducing the rule of survivorship. Hence the question whether G and S inherited the tenancy lands of their father before 1897 as tenants in common or as joint tenants ought to be decided on the principle of stare decisis and not on the principle of the general Hindu law or the later exposition of the Hindu law by the Federal Court in In re Hindu Women's Rights to Property Act. Plaintiffs, therefore, became tenants-in-common along with the daughter of S and as such they had a right to claim partition to the extent of there half share. 9. If the authority lays down the correct law, as we respectfully hold it does, Raso would inherit Kallu's share on 28-9-1891 and upon her death, her interest would pass to her daughter Damdibai. The learned counsel for the appellants vehemently contended that till the date of death of Kallu in 1891, there was no authoritative pronouncement of the Judicial Commissioners' Court that the incident of survivorship was ruled out in the devolution of occupancy or ordinary tenancy lands. What was said in Anant Ram Rajput v. Takatsing and others IV Central Provinces Law Reports 57 (a decision of the year 1884) was thus: Because a member of a Joint family is tenant of a holding, it does not follow that all the other members of the joint family are also tenants. The impost of the observations, the learned counsel submitted, could not, by any stretch of imagination, be construed to mean that in matter of devolutions, personal law of the tenant was excluded. Likewise the learned counsel argued that in Chudamen Singh v. Sakharam and others XIII Central Provinces Law Reports 137 (a decision of the year 1900) what was decided was that a joint grandson was a preferential heir to a separated son. The Court, however, proceeded to observe: It would be difficult under any circumstances to apply to occupancy rights the incidents attaching to ancestral property. It could not I think be held that the sons acquire by birth a right in the tenancy, or that they could claim partition or restrain alienation. "Interest by birth" and "devolution by survivorship" do not mean the same thing and, the learned counsel said, in understanding the above observations, the distinction between the two expressions must be borne in mind. "Interest by birth" and "devolution by survivorship" do not mean the same thing and, the learned counsel said, in understanding the above observations, the distinction between the two expressions must be borne in mind. Their Lordships did not mean to suggest that the sons inheriting the father's tenancy lands, though had no interest by birth, could not succeed to either brother's share by survivorship in the event one of them died issueless. 10. The two authorities, according to the learned counsel, did not rule out survivorship as a mode of devolution if the personal law of the tenant so permitted. That being so, if upon Kallu's death, Nanha took the entire property by the right of survivorship and Raso remained content with her maintenance alone out of the family income, there was nothing like interest vesting in Raso which was being unsettled by subsequent interpretation of the law. 11. Upon being questioned as to why the name of Raso was allowed to be mutated in the revenue papers as a co-tenant and why no objection was raised to her name continuing as a co-tenant during the settlement of the year 1917-18, the answer was that it was done out of respect for the lady lest she felt that her husband's brother might any day drive her out of the house. There is no evidence, the learned counsel said, that the crops were ever divided half and half, or the lady ever claimed a partition and separate possession of her half share. Upon being asked as to why the lady was joined as a party to certain transfers of the family lands when to all and sundry she was just a maintenance holder and everyone knew that the law of devolution recognized survivorship and the lands had passed to Nanha the answer was that since she was shown as a co-tenant in the village papers, the purchasers insisted upon her joining as a transferor. In fact, according to the learned counsel, the entries in Revenue Papers and her joinder as a transferor in the sale deeds, were no evidence of any interest vesting in her. Mutation in the Revenue Papers conferred no title and the sale-deeds were executed for discharging debts. Nothing was received for a division between the transferors. The third query related to the partition that was pleaded by Sarjoo. Mutation in the Revenue Papers conferred no title and the sale-deeds were executed for discharging debts. Nothing was received for a division between the transferors. The third query related to the partition that was pleaded by Sarjoo. How was it that Raso was given a share when she could claim none. The answer was that the document of partition had been held to be a forgery by the Court and the plea of partition had been expressly negatived. The pleading of partition, therefore, the learned counsel said, must be ignored. Even otherwise the deed of partition was unregistered and created no interest and there was no evidence that it was acted upon. 12. It is difficult to deduce the ratio, the learned counsel for the appellants would like us to do from the two authorities Anant Ram Rajput v. Takatsing and others and Chudaman Singh v. Sakharam and others cited above. The two authorities were referred in Pancham Singh and others v. Nankoo Singh 3 NLR 182 as an aid to laying down the following proposition: Moreover, by virtue, of section 41 (1) (1), Tenancy Act, the right of an absolute occupancy tenant "devolves as if it were land'' and the use of the word "devolves" appears by necessary implication to exclude, for example, the taking by survivorship which obtains among Hindus in respect of joint ancestral property. In Tekchand v. Tulai 5 NLR 103 reliance was placed on Narayandas v. Gulabchand 4 CPLR 59 again to say that "the right of an absolute occupancy tenant was not a proprietary but a tenant right and was not subject to the right of coparcenary and survivorship, which obtain among Hindus in respect of joint ancestral property." In Ghanya and another v. Ukund Rao and others 4 NLR 9 the law of devolution governing tenancy lands was explained thus: The property is an agricultural holding covered by the Central Provinces Tenancy Act. It is an estate created by contract and statute, and its devolution is governed by the same statute. No doubt the statute provides that such estate shall devolve as if it were land, but this is merely a rule for guidance in dealing with each tenant according to the personal law to which he is subject. It is not enacted that all the principles of such personal law shall be applied to the estate. No doubt the statute provides that such estate shall devolve as if it were land, but this is merely a rule for guidance in dealing with each tenant according to the personal law to which he is subject. It is not enacted that all the principles of such personal law shall be applied to the estate. The statute merely directs that when it becomes necessary to find the heir of a deceased tenant, he shall be the person who would be heir to an estate of ownership in land. The Tenancy Act does not recognize such things as succession by right of survivorship, the vesting of a son's interest by birth, and so on. Any tenant may surrender a holding whenever he pleases; if he leaves it uncultivated for two years in some cases he is deemed to have surrendered it. Such provisions obviously ignore anything resembling vested interests in the tenant sons or other heirs. In the same way each one of several tenants holding in common can give up his share without consulting his descendants. The tenancy Act makes provision for succession to surrendered holdings but it is succession by virtue of a fresh act of the Revenue authority. In the case of Hindus the Courts in dealing with agricultural holdings, will follow the Hindu Law of inheritance so far as it may be consistent with the principles of the Tenancy Act and no further and it seems to me that the peculiar feature in the former, under which a son gets by birth a vested interest in the property of his father which controls the father's power over such property, has no place in the latter. 13. The observations in Anant Ram Rajput v. Takatsing and others and Chudaman Singh v. Sakharam and others were of much wider import than what the learned counsel for the appellants wants us to comprehend and confine ourselves to. The authorities were understood to convey more meaning and in the later pronouncements of the Court, that meaning was expounded. The law enunciated in Pancham Singh and others v. Nankoo Singh, Ghanya and another v. Ukund Rao and others and Tekchand v. Tulai was followed in subsequent decisions. To quote a few, reference may be made to Mst. Cowra v. Chaitram and another AIR 1924 Nag. The law enunciated in Pancham Singh and others v. Nankoo Singh, Ghanya and another v. Ukund Rao and others and Tekchand v. Tulai was followed in subsequent decisions. To quote a few, reference may be made to Mst. Cowra v. Chaitram and another AIR 1924 Nag. 372 , AIR 1926 433 (Nagpur) , AIR 1927 381 (Nagpur) Shankar Rao v. Daulat 27 N L R 371 and Kalu and another v. Mst. Birajbai 27 N L R 323. 14. In all these authorities, the expression "shall devolve as if it were land", used in the Tenancy Acts of 1883 and 1898, was the subject matter of interpretation, and the expression was understood to mean devolution by inheritance according to personal law, excluding taking interest by birth or taking by survivorship. We are concerned here with the Tenancy Act of 1883 and in section 61 (1), the provision for devolution of ordinary tenancy was as under: Section 61 (1): "When an ordinary tenant dies, his right in the holding shall devolve as if it were land." The absolute occupancy lands and the occupancy lands also devolved in the same manner. 15. It follows as a necessary sequence that on the death of Kallu, Raso inherited his share in the land in accordance with the law then prevailing, as authoritatively pronounced by the Highest Court of the State. That was the reason why the Revenue authorities, presumably after making due enquiries, recorded her name as a co-tenant. Her name continued to be shown in the settlement papers. The purchasers were bound to insist on her joining as a transferor because the law as they understood, made her a co-tenant. This should explain why mutation of Raso's name and her joinder as a transferor, were not circumstances innocuous as the appellants' counsel tried to suggest. Those circumstances indicated that Kallu's interest had vested in Raso and she asserted her right as a tenant-in-common. She may not have claimed separate share in the crops. She was living under the same roof as Nanha and it was not necessary that she should claim a separate share if she was well looked after and well provided. 16. The C.P. Tenancy Act, 1920, brought about no change in devolution of occupancy lands till the Amendment Act XI of 1940. On Raso's death in 1933, her interest passed by inheritance to her daughter Damdi. 16. The C.P. Tenancy Act, 1920, brought about no change in devolution of occupancy lands till the Amendment Act XI of 1940. On Raso's death in 1933, her interest passed by inheritance to her daughter Damdi. The amendment in the law brought about in 1940, permitting devolution by survivorship, could not operate retrospectively so as to unsettle the vested rights of Damdi. 17. As said above, the enunciation of law in Smt. Rewati v. Smt. Gouribai fully applied to the present case, and has been correctly followed by the learned Additional District Judge. 18. The second contention of the learned counsel for the appellants was that Mahangilal had been in adverse possession of the land after the death of Raso. He alone managed the entire cultivation without sharing the crops with Damdi. He constructed a house in Khasra No. 61, dug a well and invested a good deal of money for getting the land tractor ploughed. He got engine and pump fixed in the well. After Raso's death, Damdi did not bother to get her name mutated. The Revenue papers showed Mahangilal alone as the tenant. He also transferred khasra No. 48 in the year 1937 without protest. All these acts, the learned counsel said, were acts of hostility and in denial of the title of Damdi. Damdi's suit in the year 1964 was clearly barred by limitation. 19. We have on record evidence of three witnesses who affirm that Damdi was being given some share in the produce. Parasram (P. W. 1) is Damdi's son and he says that so long Mahangilal was alive, Damdi used to bring 4 to 5 Khandis of grain, as was required for the need of the family. Sometime, she used to send Parasram. Rama (P. W. 2) and Salakram (P.W. 4) corroborate Parasram's testimony. They had seen Damdi bringing grain from Pondha. There is no apparent reason why the witnesses should not be believed, it may be true that the lady did not insist on taking her half share in full measure. She was content with whatever little her cousin gave her. She brought only as much as was the need of the family. She was bound to behave like that. If she contributed nothing towards seed, bullocks or labour, she must be content with whatever the cousin gave her. We are satisfied with the evidence that Damdi was not excluded completely. She was content with whatever little her cousin gave her. She brought only as much as was the need of the family. She was bound to behave like that. If she contributed nothing towards seed, bullocks or labour, she must be content with whatever the cousin gave her. We are satisfied with the evidence that Damdi was not excluded completely. She did receive something out of the crops, not by way of charity but because she had interest in the lands. 20. Taking the worst, even if she did not bother to get her name mutated and allowed the co-tenant to manage and cultivate the entire land without demanding a share in the produce- that would not amount to adverse possession of the co-tenant. It was a trust reposed in the co-tenant and it was for the co-tenant to plead and prove when actually he became faithless to the trust and asserted a hostile title to the knowledge of the other tenant. Even the erection of a building on joint property by one co-owner or non-participation of profits could not be regarded as conclusive evidence of ouster. (See Jagannath Marwari v. Mst. Chandni Bibi) AIR 1921 Cal 647. After all, Damdi and Mahangilal were near relations and if Damdi was in affluent circumstances, she would not bother taking a share of the produce. It is only when Mahangilal's widow transferred the lands to her sister's sons, Damdi's sentiments were offended and she filed the suit. 21. As regards alienation of Khasra No. 48 in 1937, for ought we know, it might have been done with the consent of Damdi. If the alienation was not acceptable to her, she could have successfully challenged it. Not having challenged it, the property is lost for good. But that would not mean that she had abandoned her interest in the other property left, of which she was a co-tenant. In fact, the alienation of 1937 was not pleaded as a hostile act and one does not know what facts could be stated in defence. In the result, the plea of adverse possession destroying the title of Damdi, mast fail. 22. The third contention of the appellants' learned counsel was that khasra No. 48 having been lost to the family in 1937, acquisition of a part of it twenty years after by Mahangilal, would not impress it with the original status of co-tenancy. In the result, the plea of adverse possession destroying the title of Damdi, mast fail. 22. The third contention of the appellants' learned counsel was that khasra No. 48 having been lost to the family in 1937, acquisition of a part of it twenty years after by Mahangilal, would not impress it with the original status of co-tenancy. The land would, instead, be the separate property of Mahangilal. Similarly, the house constructed on khasra No. 61, the well dug in that field and the engine and the pump set up, would belong exclusively to Mahangilal. He had taken Takavi loans to make valuable improvements. The documents on record amply prove this. 23. With this contention of the appellants, we must agree. The learned counsel cited an authority of the Bombay High Court reported in AIR 1960 159 (Bom.) which has our respectful concurrence in the law stated: Where the ancestral and joint family properties are partitioned between the defendant and the plaintiffs who formed the joint family, by the severance of the status the plaintiffs and the defendant become tenants-in-common of the property held by them. Where even after the partition the defendant continues to remain in possession of the entire properties of the family, there is no presumption that the property which is acquired by the defendant after severance of the joint family status must, even if there be no agreement in that behalf, be regarded as acquired for the family. Because the defendant continued to receive the rents and profits of the share of the plaintiffs in the properties which were originally ancestral or joint family properties he did not thereby become a trustee of the rents and profits so received for the plaintiffs. As a co-sharer, it is true, the defendant was and continued to be liable to account for the rents and profits received by him, but the fact that the defendant failed to maintain separate accounts of the income of the plaintiffs' share collected by him did not impress the fund accumulated by him after severance with the character of a fund belonging jointly to the plaintiffs and the defendant the fund in the hands of the defendant was still a fund of which he was the owner. It was not impressed with any trust in favour of the plaintiffs: and the property acquired with the aid of that fund was the exclusive property of the defendants and the plaintiffs had no claim or share in that property. 24. If a co-tenant has in good faith effected valuable improvements upon the common property at his own expense, equity demands that he should have the exclusive advantage of those improvements; and when it comes to partition, he should be allotted the share with improved facilities. The house, the well, engine and pump must necessarily go to Sarjoo's share. In the present case, however, the claim of the plaintiffs respondents is for joint possession and we are inclined to decree it in respect of Khasra No, 61 alone, with the direction that the house and the well shall be in exclusive possession of the appellants (purchasers from Sarjoobai). The suit in respect of Khasra Nos. 48/3 and 48/4 shall stand dismissed. The appeal is accordingly accepted and the decree granted by the Additional District Judge shall stand suitably modified. Since the appeal has partly succeeded, we direct the parties to bear their own costs of the appeal. Counsel's fee as per rules. A.P. Sen J. 1. This was a suit by Smt. Damdibai daughter of Kalloo for joint possession of her father's one-half share in bhumiswami lands bearing Khasra Nos. 61 area 13.78 acres, 48/3 area 0.45 acre and 48/4 area 2.90 acres, situate in village Pondha, a pucca residential house in the abadi of the village and an agricultural house situate in khasra No. 61 together with the well, engine and pump fitted therein, mango trees and crops, and for a declaration that the sale-deed, Ex. D-1, dated 5-11-1964, executed by the defendant No. 3, Mst. Sarjoo widow of Mehangilal alienating the property, in favour of her sister's sons, Sunderlal and Ramesh, the defendants Nos. 1 and 2, was not binding on her. Her claim to the extent indicated above has been decreed by the Additional District Judge, Betul, but her claim with respect to khasra No, 101 /2 area 0.72 acre and khasra No. 102 area 2.35 acres, has been disallowed, since it was accepted that these two fields belonged to Mehangilal, who had purchased them by the sale-deed. Ex. D-2, dated 7-4-1944. 2. Ex. D-2, dated 7-4-1944. 2. The facts of this case are sufficiently set forth in the judgment of the learned Additional District Judge and may be briefly stated as follows:-- In the Settlement of 1894, the plaintiff's mother Mst. Raso and Nanha, father-in-law of the defendant No. 3 Mst. Sarjoo, were jointly recorded as ordinary tenants of Khasra Nos. 174/13.78 acres, 207/7. 10 acres and 211/6.04 acres vide Jamabandi Misl Bandobast for the year 1894-95, Ex. P-2. Their names remained recorded as such in the Settlement of 1916 vide Jamabandi Misl Bandobast for the year 1916-17 Ex. P-6. In that Settlement, khasra No. 174 came to be re-numbered as khasra No. 61 and khasra Nos. 207 and 211 as khasra No. 48 vide re-numbering parcha, Ex. P-15. The names of Mst. Raso and Nanha remained jointly recorded as ordinary tenants thereof till the year 1920, and thereafter as occupancy tenants. In 1933, both Mst. Raso and Nanha died, and the name of Mehangilal son of Nanha came to be recorded as the occupancy tenant of the fields. Mehangilal died on 4-10-1964. On 5-11-1964, his widow Mst. Sarjoo, defendant No. 3, purported to alienate the entire property by the sale-deed dated 5-1 1-1964, Ex. D-1, in favour of her sister's sons Sunderlal and Ramesh, defendants Nos. 1 and 2. On this, the plaintiff Mst. Damdibai instituted the suit for joint possession to the extent of her one-half share on 19-1-1965. 3. The facts, no longer in controversy, are: The fields were originally held by the common ancestor Panchu Pawar as an ordinary tenant. He also owned a pucca residential house in the village abadi. Panchu Pawar and his two sons-Kalloo and Nanha, constituted a joint Hindu family. Panchu Pawar died sometime before 1891, and his two sons inherited the fields and the house. The plaintiff's father Kalloo died on 18-9-1891. After his death, the fields were jointly recorded in the names of Mst, Raso widow of Kalloo and Nanha. 4. The plaintiff asserts that the fields in question were held in joint ownership by her mother Mst. Raso and Nanha, each representing the two branches of Panchu Panwar, namely of Kalloo and Nanha and that on her death, she inherited one-half share of Kalloo's branch, and the other half-share was held by Nanha's son Mahangilal. 4. The plaintiff asserts that the fields in question were held in joint ownership by her mother Mst. Raso and Nanha, each representing the two branches of Panchu Panwar, namely of Kalloo and Nanha and that on her death, she inherited one-half share of Kalloo's branch, and the other half-share was held by Nanha's son Mahangilal. In other words, she claimed Chat the lands "came into her ownership" after the death of her mother and, therefore, she was a bhumiswami of the fields to the extent of her one-half share, but that the defendant No. 3 Mst. Sarjoo, after the death of her husband Mahangilal on 4-10-1964, purported to alienate the entire property by executing the sale-deed, Ex. D-1, dated 5-11-1964, in favour of her sister's sons Sunderlal and Ramesh, defendants Nos. 1 and 2, at the instigation of others, with a view to defeat her claims. Her case was that since the fields were left to the care and management of Mahangilal, his name came to be recorded in the village papers as representing the joint ownership. The plaintiff, accordingly, claims that the sale-deed is not binding on her and does not affect her half share in the suit property, and seeks the relief of joint possession as the defendants Nos. 1 and 2, Sunderlal and Ramesh, taking advantage of the sale-deed in their favour, had entered into wrongful possession of the property. 5. In denial of the plaintiff's claim, the defendants assert that Kalloo and Nanha were never tenants-in-common of the fields in question, which constituted coparcenary property in their hands, and, therefore, upon the death of Kalloo in the year 1891, the property devolved on his brother Nanha, by the rule of survivorship. They pleaded that the plaintiff's mother Mst. Raso had no right or title therein, and that the fields were formally recorded in her name in the village papers, in lieu of her right of maintenance, and in the alternative, that even if Mst. Raso had any right in the property, as alleged, such right was extinguished by her death and no one claimed that right against Nanha was the full-fiedged owner thereof, and was managing the same as such, and was recognised to be the tenant of the fields by the Malguzar, by acceptance of rent from him. They further pleaded that the plaintiff's mother Mst. They further pleaded that the plaintiff's mother Mst. Raso was never in possession of the fields; that after the death of Nanha, his son Mahangilal succeeded to the whole of the ancestral property as a full owner of the same, and remained in possession as such from the year 1933 till his death on 4-10-1964; and, that the plaintiff Mst. Damdibai having never exercised or asserted her rights against Mahangilal, her right even if she had any, was lost by adverse possession. These pleas of theirs not having prevailed, the learned Additional District Judge has decreed the plaintiff's claim as indicated above. 6. The most important point in the appeal is whether upon the death of the plaintiff's father Kalloo on 28-9-1891, i.e., the date when succession opened, his one-half share in the fields in dispute devolved on the plaintiff's mother Mst. Raso by inheritance or on his brother Nanha by the rule of survivorship. There can be no doubt that upon the death of Panchu Pawar his two sons, Kalloo and Nanha, inherited the residential house in village abadi with the incident of survivorship and, therefore, on the death of Kalloo on 28-9-1891, Nanha took it by survivorship. The plaintiff can, therefore have no claim with respect to this house. But the fields of which the plaintiff's father Kalloo was an ordinary tenant devolved by the special mode of succession provided by section 61 (1) of the C.P. Tenancy Act, 1883 which reads as follows: 61 (1). When an ordinary tenant dies, his right in his holding, shall devolve as if it were land; Provided that a collateral relative of the tenant shall not be entitled to inherit his right unless, at the death of the tenant, he was a co-share in the holding. 7. The decision of the appeal turns on the word "devolve" in the expression "shall devolve as if it were land" in section 61 (1) of the Act. 7. The decision of the appeal turns on the word "devolve" in the expression "shall devolve as if it were land" in section 61 (1) of the Act. It is urged on the strength of the observations of Gayer, C.J. in In the matter of the AIR 1941 72 (Federal Court) that the word "devolution" is wide enough to comprehend both survivorship as well as inheritance and, therefore, the narrow construction placed upon the word "devolve" by the Court of the Judicial Commissioner of the Central Provinces in a series of decision, right from the year 1884, succession as meaning inheritance only must be regarded as having been overruled by the Federal Court, as not laying down the correct law. It is further urged that the correctness of the decision of this Court in Smt. Rewati Vs. Smt. Gouribai and Others, is open to question inasmuch as that the learned Judges were wrong in holding that the principle of stare decisis applies as, it is said, there was not a 'long consistent course of decisions' interpreting the expression "shall devolve as if it were land", at the relevant time, as the learned Judges wrongly assumed. The contentions are, in my view, wholly unfounded and can hardly be accepted. 8. As regards the state of the law in the Central Provinces in the year 1891, i.e., when the succession opened, it was undoubtedly held by the Court of the Judicial Commissioner in a long course of decisions, that the expression "shall devolve as if it were land" meant succession by inheritance. This interpretation of the law in 1884 has prevailed down to recent years. It is rather late in the day to contend otherwise i.e. that the expression also embraces the rule of survivorship. That construction would, indeed, be against the very scheme of the C.P. Tenancy Acts, 1883 and 1898. Such a construction would also be barred by the principle of stare decisis. The restricted meaning the narrow construction placed by the Court of the Judicial Commissioner on the expression had a genesis of its own. This would be clear from the history of land tenures in the Central Provinces. (See, Baden-Powell's Land System of British India Vol. 2, pp. 481-499.) 9. The history of legislation governing the relations between landlords and tenants in the Central Provinces originated with the Central Provinces Tenancy Act, 1883. This would be clear from the history of land tenures in the Central Provinces. (See, Baden-Powell's Land System of British India Vol. 2, pp. 481-499.) 9. The history of legislation governing the relations between landlords and tenants in the Central Provinces originated with the Central Provinces Tenancy Act, 1883. Prior to this, the Bengal Tenancy Act, 1859 was in force. That Act for the first time evolved the 12 years' rule for conferral of occupancy rights, and tried to define the rights of occupancy enjoyed by a raiyat. It was doubted whether the Act afforded some measure of adequate protection to the actual tiller of the soil. This Act did not make any reference to the facts and circumstances of a tenancy (enacted as it was for a state of things totally different to what existed in the Central Provinces) as affording the ground for protecting the tenant by giving an occupancy right; it merely said by section 6, that every tenant who had held for 12 years could not be ejected, except on certain conditions proved in Court; and that he could only have his rent enhanced in certain way. 10. Sir Barnes Peacock C.J., in Ajoodhia Persad v. Emambandee 7 WR 528 (F B) held that there was nothing in section 6 of the Act which showed that it was the intention of the legislature to alter the nature of a jote and to convert a nontransferable jore into a transferable one merely because a raiyat who held it for 12 years had thereby gained a right of occupancy. The learned Chief Justice also added an expression of his doubt, whether a right of occupancy actually gained u/s 6 was necessarily heritable, stating: Speaking for myself, I am not at all sure that a right of occupancy gained u/s 6, Act X of 1859 is necessarily heritable. 11. Accordingly, this Act was replaced by the Bengal Tenancy Act, 1855, which went much further than the Act of 1859, in the way of improving of the status of the occupancy rajput. A new section 26 was enacted to counteract the effect of the decision in Ajoodhia Persad v. Emambandee (supra). 11. Accordingly, this Act was replaced by the Bengal Tenancy Act, 1855, which went much further than the Act of 1859, in the way of improving of the status of the occupancy rajput. A new section 26 was enacted to counteract the effect of the decision in Ajoodhia Persad v. Emambandee (supra). Section 26 dealt with the question of devolution of occupancy rights on the death of the raiyat, and provided that "such right shall, subject to any custom to the contrary descend in the same manner as other immovable property." Sir Asutosh Mookerjee. A.C.J., in Chandra Binode v. A.B. Dewan AIR 1921 Cal. 15 (SB) while speaking for a special Bench of five Judges, observed that the phraseology used in some of its provisions could hardly be reconciled with the theory that the right of occupancy was a purely personal right. That very eminent Judge, accordingly held that the right of occupancy was by section 26 of the Act placed on the same footing as "other immovable property" and this was hardly consistent with the theory that the right of occupancy was merely a personal right. That, however, is a matter of history. We need not pursue the question any further because the Bengal Tenancy Act, 1885, was never brought into force in the Central Provinces. 12. Incidentally, Mahmood J., in Gopal Pandey v. Parsotam Das 5 All 121 (FB) at p. 132 interpreting the words, "the right shall devolve as if it were land", in relation to an occupancy tenant u/s 9 of the N.W.P. Rent Act, (sic), observed: It appears to me that the right of an occupancy tenant in these Provinces resembles the emphyteusis of the Roman Law. It is a right carved out of the proprietary estate of the Zamindar by the operation of the statute, as indeed it might have been by grants from the landlord himself. That such was the nature of the right of occupancy intended to be conferred by the Legislature upon tenants of twelve years' standing seems to me to be dearly shown, not only by the general provisions of the Rent Act, but by the express language of a clause in section 9--That clause lays, down that "when any person entitled to such last-mentioned right dies the right shall devolve as if it were land. *** *** *** Under section 9 the right is capable of devolution by inheritance and also of transfer by act of parties, but both these capabilities are subject to the limitations provided by that section. It provides that the right of occupancy shall not be transferable by grant, will, or otherwise, except as between persons who have become by inheritance co-sharers in such right. "These limitations, however, do not alter the nature of the right so as to take it from one class of rights recognised by jurisprudence into another class. Therefore, according to my view, the holding of an occupancy tenant must, for the purposes of the present question, be regarded as land or any other real and substantive interest in immovable property. Then, at page 134: I have already endeavoured to show by introducing a comparison between the occupancy right of an Indian cultivator and the emphyteusis of the Romans, that the right as now defined by the statute is subject to its own limitations as much a real and subsisting right as any other kind of estate carved out of the full ownership of land. The duration of the tenant's life plays no part in determining the right. Like any other estate it devolves upon heirs, and is also transferable by act of the parties, the devolution and the transfer being both subject to the limitations provided by section 9. It cannot be taken to be in the nature of an estate for life; nor can the position of the tenant's heirs be compared to that of reversioners. That this is so appears to me to be clear from the fact that the right can be fully transferred by the tenant in favour of any one of the "persons who have become by inheritance co-sharers in such right," even though such transfer may be against the will and to the prejudice of all other persons of the same class, or those on whom the right would otherwise devolve upon the death of the tenant. *** *** *** Like emphyteusis, it is a right which falls short of ownership for it has reversion expectant upon it, the reversion being not in favour of the tenant's heirs, but in favour of the Zamindar to show the right reverts on default of such persons as could succeed to it under the rules of section 9. *** *** *** Like emphyteusis, it is a right which falls short of ownership for it has reversion expectant upon it, the reversion being not in favour of the tenant's heirs, but in favour of the Zamindar to show the right reverts on default of such persons as could succeed to it under the rules of section 9. These observations from such high authority clearly supports the construction of the expression "shall devolve as if it were land" as meaning "inheritance." 13. The experience of the working of the Bengal Tenancy Act, 1859 had shown the necessity for a special legislation befitting the peculiar conditions of the Central Provinces. Accordingly, in 1863, the Settlement Commissioner, by circular, called attention to this subject. The Government of India was referred too, and the result was that the order well-known as "Circular G (1865)" was issued. This solved the difficulty by ruling that tenants in six classes specified should be protected by being recorded as "unconditional" i.e., not liable to be ejected, even if the Bengal Tenancy Act, 1959 were repealed. The protection was achieved by inserting clauses in every wajib-ul-arz. Among the various classes to whom there was the grant of this unconditional or (as it is now called) absolute occupancy right, was the following: Raiyats cultivating lands which have descended to them by inheritance, provided that the possession either by themselves, or by themselves and some other persons from whom they have inherited, shall have lasted continuously for not less than twenty years. The other five classes of tenants protected by being called as unconditional i.e. absolute occupancy, are enumerated in Baden-Powell Vol. 2, p. 483. When these six classes were provided for, all other tenants were left to whatever provisions the Tenancy Law enacted for their protection. That is the historical origin of three of the classes of tenants found in the C.P. Tenancy Act, 1883, viz. the absolute occupancy tenant, the occupancy tenant and the ordinary tenant. 14. Eventually, the C.P. Tenancy Act, 1883 was passed by the Imperial Council. The Act was amended in 1889 and subsequently repealed by the C.P. Tenancy Act, 1898. That is the historical origin of three of the classes of tenants found in the C.P. Tenancy Act, 1883, viz. the absolute occupancy tenant, the occupancy tenant and the ordinary tenant. 14. Eventually, the C.P. Tenancy Act, 1883 was passed by the Imperial Council. The Act was amended in 1889 and subsequently repealed by the C.P. Tenancy Act, 1898. The expression "shall devolve as if it were land" was used in respect of absolute occupancy; occupancy and ordinary tenants to denote their heritability in sub-section (1) of sections 38, 43 and 61 of the C.P. Tenancy Act, 1883, and was re-introduced in sub-sections (i) of sections 41, 46 and 70 of the Central Provinces Tenancy Act, 1898 to regulate their heritability, respectively. 15. The statements of objects and reasons for the C.P. Tenancy Act, 1898 said: The right of inheritance to an occupancy holding has been extended to collaterals who hold land or are permanently resident in the village and are in the male line of descent from an ancestor who occupied the holding. It has been ascertained that this is at present the common rule of succession prevailing in the Central Provinces; and as the sub-division of holdings extends, the present more limited rule would operate, in the event of the failure of one branch of the family, to exclude the other branches from the succession to which, if still joint, they would be entitled. vide, the Central Provinces Gazette Part V, dated 16-10-1897, pp. 59-61. 16. The expression "shall devolve as if it were land" was, therefore, meant "inheritance". That expression had given rise to much controversy and was, therefore, replaced by the term "heritable" in the C.P. Tenancy Act, 1920. The Act brought about many important changes. One was that the ancient institution of ordinary tenants was done away with. The old class of ordinary tenants was merged in the occupancy tenant, while the ordinary tenant of sir land was declared to be a sub-tenant. The other change brought about by section 11 was that the law of inheritance of an occupancy tenant was declared to be the personal law of the tenant, subject to two important provisos. The first proviso was intended to exclude the rule of survivorship, and thus prevent a son taking an interest in a holding during the life-time of his father, while the second proviso was meant to exclude distant collaterals. The first proviso was intended to exclude the rule of survivorship, and thus prevent a son taking an interest in a holding during the life-time of his father, while the second proviso was meant to exclude distant collaterals. It is noteworthy that while the new Act extended the rule of survivorship to the devolution of interests of an absolute occupancy tenant, that of an occupancy tenant was still governed by inheritance according to the personal law, even in the case of a Mitakshara Joint Hindu family. This was clear from the deliberate omission of the word "survivorship" from section II, as also from proviso (i) appended thereto. 17. The Court of the Judicial Commissioner, therefore, gave to the expression "shall devolve as if it were land" a restricted meaning. In Anant Ram Rajput v. Takatsingh & Ors (1884) 4 CPLR 57 Crosthwaite J.C. held that because a member of a joint Hindu family was a tenant of a holding, it would not follow that all the members of the joint family were also tenants, stating that the person who was the tenant alone had the tenant right. In Chudaman Singh v. Sakharam & Ors. (1889) 13 CP LR 137. Stanley Ismay, J.C. held that it would be difficult under any circumstances, to apply to occupancy right the incidents attaching to ancestral property. As between a separated son and united grandsons, it was held that the latter would take the holding as preferential heirs, as to hold otherwise would not only be productive of great inconvenience but might, as in that case, work a positive injustice. 18. In Pancham Singh & Ors. v. Nankoo Singh (1905) 3 NRL 182 Drake-Brockman, A.J.C. made the following observation, namely,-- Moreover, by virtue of section 41 (1), Tenancy Act, the right of an absolute occupancy tenant "devolves as if it were land", and the use of the word "devolves" appears by necessary implication to exclude, for example, the taking by survivorship which obtains among Hindus in respect of joint ancestral property. That has throughout been taken to be the correct exposition of the law and has consistently been followed in subsequent cases. In Ghanya and Or. V. Ukund Rao and Ors 1907 4 NLR 9 Stanyon, A.J.C. stated: The Tenancy Act does not recognize such things as succession by right of survivorship, the vesting of son's interest by birth, and so on. In Ghanya and Or. V. Ukund Rao and Ors 1907 4 NLR 9 Stanyon, A.J.C. stated: The Tenancy Act does not recognize such things as succession by right of survivorship, the vesting of son's interest by birth, and so on. In Tekchand v. Tulai 1909 5 NLR 103 Skinner, A.J.C. approved of the view that the right of an absolute occupancy tenant was not subject to the rights of coparcenary and survivorship, which obtained among Hindus in respect of joint ancestral property. In Vithal v. Mst. Mendri 1909 5 NLR 172 Drake-Brockman, J.C. re-affirmed his earlier view, and observed: The Central Provinces Tenancy Act, by providing that the right of a tenant shall devolve as if it were land' appears to exclude by necessary implication the taking by survivorship which obtains among Hindus in respect of joint ancestral property. What the Act does do is to narrow the right of succession to occupancy and ordinary holdings by excluding collaterals who were not at the time of the tenant's death co-sharers in the holding. 19. In Bhura v. Ramrao (1912) 8 NLR 154. Stanyon, A.J.C. referred, with approval, to his previous decision that: The Tenancy Act does not recognise such things as succession by right of survivorship, the vesting of a son's interest by birth, and so on. In Shankar Rao v. Daulat (1931) 27 NLR 371 Macnair, J.C. after reviewing all the authorities on the subject, felt himself bound by the principle of stare decisis, to hold that the expression "shall devolve as if it were land", excludes, by necessary implication, the taking by survivorship, and stated: It seems quite clear that if a tenancy devolves as if it were land and this provision excludes taking by survivorship, sons can have no vested interests in the holding; the holding could not pass by inheritance if the sons had vested interest in it. The rulings I have cited interpreting the expression "devolve as if it were land" have been consistently followed for twenty years. 20. In Kalu and Anr. v. Mst. Birajbai (1933) 29 NLR 323 Staples, A.J.C. stated: It is clearly laid down that the interest of an occupancy tenant was on his death passed by inheritance in accordance with his personal law. 20. In Kalu and Anr. v. Mst. Birajbai (1933) 29 NLR 323 Staples, A.J.C. stated: It is clearly laid down that the interest of an occupancy tenant was on his death passed by inheritance in accordance with his personal law. This can only, I think, mean that it passes by inheritance according to the rules of inheritance and that the law of survivorship, which is not inheritance, is excluded. In my view, section 61(1) of the C.P. Tenancy Act, 1883, as well as section 70 (1) of the C.P. Tenancy Act, 1898, which dealt with the devolution of the rights of an ordinary tenant, must bear the same construction. 21. It is, however, necessary to refer the two decisions of Hallifax, A.J.C. in AIR 1926 277 (Nagpur) and AIR 1927 272 (Nagpur) taking a view to the contrary. Hallifax, A.J.C. expressed an opinion that the use of the word "inheritance" in section 11 of the C.P. Tenancy Act, 1920 does not rule out survivorship. In neither case did the learned Judge consider the effect of proviso (i). With the greatest respect to him, it seems to me that the effect of the use of the word "inheritance" together with the proviso, manifestly reads out "survivorship". The use of the word "inheritance", if that stood alone, might, as he thinks possible, be due to inadvertance, though that view seems to me difficult to accept having regard to the marked contrast between the wording of section 11 and section 5. Section 5 provides that "The interest of an absolute occupancy tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his personal law", whereas the words "or survivorship" are omitted from section 11. However that may be, proviso (i) makes it apparent that the word is used advisedly I can only read that proviso as meaning that no person shall take any interest by birth in an occupancy holding during the life-time of the tenant. That construction of mine is reinforced by section 13 which provides a remedy where there has been a sale in contravention of section 12. It provides that any person who, if he survived the tenant without nearer heirs, would inherit the holding, may apply to the Revenue Officer to be placed in possession, subject to certain conditions. The opinion of Hallifax, A.J.C. therefore, does not seem to be correct. 22. It provides that any person who, if he survived the tenant without nearer heirs, would inherit the holding, may apply to the Revenue Officer to be placed in possession, subject to certain conditions. The opinion of Hallifax, A.J.C. therefore, does not seem to be correct. 22. There is a well-known principle of construction, that where the Legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted, unless a contrary intention appears. (See Craies on Statute, 6th edn., p. 167). The expression "shall devolve as if it were land" was used in respect of absolute occupancy, occupancy and ordinary tenants to denote their heritability in sub-sections (1) of sections 38, 43 and 61 of the C.P. Tenancy Act, 1883. That expression if it was of a doubtful meaning, had received a clear judicial interpretation and, therefore, when the Imperial Council re-introduced the same expression, as it stood in the 1883 Act, in sub-sections (1) of sections 41, 46 and 70 of the C.P. Tenancy Act, 1898, with the same phraseology and without any change, in a similar context, must be interpreted according to the meaning that had previously been ascribed to it. The re-enactment of the expression "shall devolve as if it were land", therefore, gives statutory authority to the judicial construction which had been put upon it. The phrase, therefore, must bear the narrow construction placed upon it by the Court of the Judicial Commissioner as meaning "inheritance". 23. The matter can be viewed from another angle. In the settlement of 1894, the plaintiff's mother Mst. Raso and Nanha, the predecessor-in-title of the defendants, were jointly recorded as ordinary tenants of khasra Nos. 174/13.78 acres, 207/7.10 acres and 211/6.04 acres vide Jamabandi Misl Bandodast for the year 1894-95, Ex. P-2. Their names remained recorded as such in the Settlement of 1916 vide Jamabandi Misl Bandobast for the year 1916-17, Ex. P-6. In that Settlement, khasra No. 174 came to be re-numbered as khasra No. 61 and khasra Nos. 207 and 211 as khasra No. 48 vide re-numbering parcha Ex. P-15. Mahangilal not having brought a suit u/s 83 of the C.P. Laud Revenue Act, 1881, the entries in the record-of-rights under which Mst. P-6. In that Settlement, khasra No. 174 came to be re-numbered as khasra No. 61 and khasra Nos. 207 and 211 as khasra No. 48 vide re-numbering parcha Ex. P-15. Mahangilal not having brought a suit u/s 83 of the C.P. Laud Revenue Act, 1881, the entries in the record-of-rights under which Mst. Raso was entered as ordinary tenant of the fields in question, must be presumed to be correct. That presumption has in no way been rebutted by the defendants. The effect of such an entry is to make it a presumptive piece of evidence in a collateral proceeding; that is to say in a suit based on title, where such au entry is relied upon by one or other of the parties. In Abdul Waheed Khan Vs. Bhawani and Others, their Lordships of the Supreme Court, while interpreting section 95 of the Bhopal State Land Revenue Act, 1932, which is in pari materia with section 82 of the Act, stated as follows: The scope of an entry in regard to the right to hold a land u/s 89 (2) of the Act and the decision u/s 93 thereof is disclosed by section 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in section 93, u/s 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding; that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties the Court shall presume it to be correct unless the other party rebuts the presumption. Not only section 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption. The principles laid down by their Lordships are clearly applicable to the facts of the present case. The entries in the record-of-rights viz., Jamabandi Misl Bandobast for the year 1894-95, Ex. P-2 and Jamabandi Misl Bandobast for the year 1916-17, Ex. P-6, are sufficient proof of title. 24. The principles laid down by their Lordships are clearly applicable to the facts of the present case. The entries in the record-of-rights viz., Jamabandi Misl Bandobast for the year 1894-95, Ex. P-2 and Jamabandi Misl Bandobast for the year 1916-17, Ex. P-6, are sufficient proof of title. 24. I, accordingly, hold that on the death of the plaintiff's father Kallo on 28-9-1891 his undivided one-half share in the fields in dispute devolved on the plaintiffs mother Mst. Raso by inheritance u/s 61 (1) of the C.P. Tenancy Act, 1883, 25. The other point urged, namely, that the plaintiff's suit is barred by limitation is wholly devoid of substance. The suit was governed by Article 65 of the Limitation Act. The starting point was obviously 5-11-1964, the date on which the defendant No. 3, Mst. Sarjoo widow of Mahangilal executed the sale-deed, Ex. D-1, in favour of her sister's sons, Sunderlal and Ramesh, the defendants Nos. 1 and 2. The plaintiff having brought the suit on 19-1-1965, the suit was clearly within time. There is no merit in the contentions that the right or title of the plaintiff was barred by adverse possession of the defendants. As between tenants-in-common, there can be no adverse possession by one tenant-in-common unless there has been a denial of title and an ouster to the knowledge of the other. 26. The possession of one tenant-in-common is considered in law as possession of all the tenants-in-common, and he must be regarded to be in possession on the basis of the joint title. The defendants are themselves not sure of their stand. They had at first pleaded "acquiescence", and then altered it to "adverse possession". There is no plea that Mahangilal had ever asserted a hostile title, or that it was brought to the knowledge of the plaintiff, so as to constitute ouster. The burden of making out ouster was on the defendants claiming to displace the lawful title of the plaintiff by pleading adverse possession. See P. Lakshmi Reddy Vs. L. Lakshmi Reddy, . That burden they have failed to discharge. On the contrary, the testimony of Parasram (P. W. 1) shows that his mother Smt. Damdibai used to visit village Rondha every year and bring some grain for her use. There is no reason to disbelieve him. See P. Lakshmi Reddy Vs. L. Lakshmi Reddy, . That burden they have failed to discharge. On the contrary, the testimony of Parasram (P. W. 1) shows that his mother Smt. Damdibai used to visit village Rondha every year and bring some grain for her use. There is no reason to disbelieve him. It is not uncommon for tenants-in-common to leave the property to the care and management of one of them, and be satisfied with a token share of the profits. That would, to my mind, amount to participation in the profits. Till the defendant No. 3, Mst. Sarjoo transferred the suit property, with a view to defeat the plaintiff's claim, she need not have brought the suit. 27. That takes me to the next and the last point on which we differ. 1 cannot agree that the plaintiff's claim to the two fields khasra No. 48/3, area 0.45 acre and khasra No. 48/4, area 2.90 acres, is not maintainable. These two fields originally formed part of khasra No. 48, having an area of 13.18 acres. The field was left to the care and management of Mehangilal. The plaintiff's mother Mst. Raso having died in 1933, she became are occupancy tenant thereof. The defendants have filed a copy of the so-called sale-deed dated 10-8-1937, by which Mehangilal purported to have sold the entire field measuring 13.18 acres for a consideration of Rs. 400 to one money-lender named Biharilal, as well as the sale-deed, Ex. 2D-4, dated 28-3-1957 by which he re-purchased khasra No. 48/4, area 3.35 acres which was later re-numbered as khasra Nos. 48/3 and 48/4 by paying Rs. 400 to-the creditor. The transaction, on the face of it, appears to be a mortgage. It is said that the plaintiff Smt. Damdibai had acquiesced in the transaction effected by Mehangilal on 10-8-1937, as a result of which the property was lost to the family. There is no foundation laid in the pleadings to support any finding that there was acquiescence on her part. The defendants had, as already stated, earlier taken that plea but subsequently gave it up in my view, the fields having been re-claimed by Mehangilal, they were impressed with the character of being joint property. The defendants have nowhere asserted that the fields in question were acquired by Mehangilal out of his own money. The defendants had, as already stated, earlier taken that plea but subsequently gave it up in my view, the fields having been re-claimed by Mehangilal, they were impressed with the character of being joint property. The defendants have nowhere asserted that the fields in question were acquired by Mehangilal out of his own money. The plaintiff is, therefore, entitled to her share in these two fields. 28. As regards the remaining property, i.e., the agricultural house built on Khasra No. 51, the well, engine and pump fitted therein, mango trees and crops standing thereon, the defendants are, in my view, not entitled to any declaration that in the event of a partition, the said property should be allotted to their share. There was no such claim made in the written statement. The principles relied on are well settled. The authority on the subject is the decision of their Lordships in M.N. Aryamurthy and Another Vs. M.D. Subbaraya Setty (Dead) through L. R. and Others, which lays down that the joint funds in the hands of a tenant-in-common do not become impressed with any trust in favour of the other tenants-in-common; and, if the tenant-in-common acquires some property with the aid of such funds in his possession, his other tenants-in-common cannot claim a share in the property acquired by him. The difficulty, however, is in the application of those principles to the facts of the present case. It is accepted before us that though the house stood in the name of Mahangilal and the well was constructed out of taccavi loans borrowed by him, the house was built and the taccavi loans were re-paid from out of the income of the joint property. That being so, the house constructed in khasra No. 61, and the well, engine and pump fitted therein, became 'accretions 'to the common property. This was not a case where a tenant-in-common acquires some property other than the common property, with the aid of the funds in his hands, but was a case where he built upon the common property, and the accretions, therefore, became part and parcel of the same, wherein the plaintiff must have her share. 29. The result, therefore, is that the appeal must fait and is dismissed with costs. Counsel's fee as per schedule, if certified. 29. The result, therefore, is that the appeal must fait and is dismissed with costs. Counsel's fee as per schedule, if certified. Order of Reference By A.P. Sen & M.L. Malik JJ.--In view of the difference of opinion between us, the papers be laid before the Hon'ble the Chief Justice, for referring the case to a third Judge for decision on the questions, namely (i) whether the plaintiff can lay a claim to khasra Nos. 48/3 and 48/4 of village Pondha; and, (ii) whether, in the facts and circumstances of the case, the defendants are entitled to a declaration that in the event of a partition of the holding, the agricultural house situate on khasra No, 61 together with the well, engine and pump fitted therein, should beotted to all their share. OPINION OF VYAS J. ON REFERENCE The facts giving rise to this appeal have been stated in detail in the two judgments of Hon'ble Sen, J., and Hon'ble Malik, J., and, therefore, need not be restated by me. Though on certain questions raised for decision in this appeal both the learned Judges have agreed, but there was difference of opinion between them on the following two questions which have been referred to me for decision. These two questions are: (1) Whether the plaintiff can lay any claim to khasra Nos. 48/3 and 48/4 of village Pondha? and (2) Whether, in the facts and circumstances of the case, the defendants are entitled to a declaration that in the event of a partition of the holding, the agricultural house situate on Khasra No. 61 together with the well, engine and pump fitted therein, should be allotted to their share? 2. It is not in dispute that Khasra Nos. 48/3 and 48/4 were initially held by Pancho Patel through whom both the parties claim title to the suit-lands. After the death of Kallu son of Pancho and his second son Nanha in 1933, Mahangilal son of Nanha, husband of Mst. Sarjoo Bai, through whom the appellants claim title to the suit-lands became entitled to the lands held by Pancho. After the death of Pancho Patel in 1891, mutation was effected in the names of his two sons Kallu and Nanha who also died in 1933. After the death of these two sons, the names of Mst. Raso, mother of the plaintiff Damdibai and Mahangilal son of Nanha were mutated. After the death of Pancho Patel in 1891, mutation was effected in the names of his two sons Kallu and Nanha who also died in 1933. After the death of these two sons, the names of Mst. Raso, mother of the plaintiff Damdibai and Mahangilal son of Nanha were mutated. Though Mahangilal claimed to have succeeded to the entire holding on the ground of the rule of survivorship but his claim has been negatived by both the learned Judges, who heard this appeal, and they have held that Mst. Raso inherited the share of her husband Kallu and became a co-tenant with Mahangilal. In 1937 Mahangilal sold Khasra No. 48 to Biharilal and in 1957 Mahangilal purchased the same from the purchaser Biharilal. Khasra No. 61 which also was the holding of Pancho Patel and on which the names of Mst. Raso and Mahangilal were mutated as co-tenants, is said to have been improved upon by Mahangilal by sinking a well, constructing a house and fitting a water-pump and an engine. The main question on which both the learned Judges have differed is with regard to the plaintiff's title to Khasra Nos. 48/3 and 48/4 and the house, the well, the engine and the pump on Khasra No, 61. 3. It is contended that after Mst. Raso had left her interest in the suit-property except by way of sharing the profits, the two disputed Khasra numbers were sold by Mahangilal to a third person and since he repurchased them by his self-acquired means the same cannot be treated as a property of which the plaintiff and the defendants are co-tenants. The defendants in their written statement disclaimed the plaintiff's title on the ground of adverse possession as also on the ground that under the rule of survivorship Mst. Raso did not acquire any interest in the property left by her father-in-law, viz. Pancho Patel. Both these claims have been negatived by both the learned Judges. 4. Relying on AIR 1960 159 (Bom.) and M.N. Aryamurthy and Another Vs. M.D. Subbaraya Setty (Dead) through L. R. and Others, it was contended that once there was severance of status and if one of the co-tenants acquired any property by his own means and money, the property so acquired could not be treated as the property of the co-tenants, and one of the co-tenants cannot lay any claim to the property. M.D. Subbaraya Setty (Dead) through L. R. and Others, it was contended that once there was severance of status and if one of the co-tenants acquired any property by his own means and money, the property so acquired could not be treated as the property of the co-tenants, and one of the co-tenants cannot lay any claim to the property. Sen J. has held that the transfer of Khasra No. 48 (now Khasra No. 48 /3 and 48/4) in 1937 and its repurchase in 1957 was not a transaction of sale but was a transaction of mortgage only and since the property was redeemed under a pretext of repurchase the reacquired property became property of all the co-tenants and cannot be regarded as the self-acquired property of Mahangilal so as to exclude the claim of the plaintiff Mst. Damdibai. I, for the reasons given by Sen J. agree with the view taken by him. No evidence has been led to show as to what was the source of money for the re-acquisition of the aforesaid two Khasra numbers by Mahangilal. It was sold for Rs. 400 and repurchased for Rs. 400. The two cases relied upon by learned counsel for the appellants do not help the appellants at all. In both these cases there was a partition and even after partition one of the members remained in possession of some items of the partitioned property. This is not a case where there ever was partition between Mst. Raso and Mahangilal. On the contrary, both the learned Judges have held that Mst. Raso continued to share the profits of the entire holding of which she along with Mahangilal was recorded as a co-tenant. Thus the properly continued to be the property of the co-tenants and if one of the co-tenants transferred some items of the property held in common and re-purchased the same later, then it shall be deemed to have regained the same character, unless it was to be proved that the purchase was from separate funds and a separate character of ownership was meant for it and its repurchase. In these circumstances, I agree with the view taken by Sen J., that the plaintiff is entitled to the extent of her share in Khasra Nos. 48/3 and 48/4. 5. In these circumstances, I agree with the view taken by Sen J., that the plaintiff is entitled to the extent of her share in Khasra Nos. 48/3 and 48/4. 5. On the question as to whether in the event of a partition of the holding the agricultural house on Khasra No. 61 together with the well, engine and pump should be allotted to the defendants' share, both Sen and Malik JJ. have differed. According to Malik J. since the house was constructed by Mahangilal, the well was sunk and improved by him as also the engine and pump were fitted by him, the legal representatives in the event of partition are entitled to an allotment in their favour. A contrary view has been taken by Sen J. in my opinion, looking to the nature of the claim made by the plaintiff in the present suit, the declaration sought to be given to the defendants--appellants cannot be granted in this case. 6. The plaintiff has only filed a suit for a decree of joint possession on the ground that she is entitled to half share in the suit-property. She has not claimed any partition. There is thus no question of giving any advance declaration to the plaintiff in respect of a suit for partition which may or may not be filed by her. It is only when a suit for partition is filed by any of the co-tenants or their legal representatives that this question will arise and then after taking into consideration all the points relevant to the suit for partition, this question can be considered and decided. Such a declaration would be outside the scope of the suit itself and cannot and should not be granted in favour of the appellants. As and when a suit for partition is filed the defendants can raise all such grounds for allotment of these items of properties to their share and the plaintiff will then be in a position to put forward her grounds either for supporting or opposing such a claim in that suit. Accordingly, in my view, for the aforesaid reasons the declaration proposed to be given by Malik J. need not and cannot be given in the present suit. 7. Accordingly, for the reasons given above, my decision on the aforesaid two points are as under: (1) The plaintiffs Mst. Damdibai is entitled to her share in Khasra Nos. Accordingly, in my view, for the aforesaid reasons the declaration proposed to be given by Malik J. need not and cannot be given in the present suit. 7. Accordingly, for the reasons given above, my decision on the aforesaid two points are as under: (1) The plaintiffs Mst. Damdibai is entitled to her share in Khasra Nos. 48/3 and 48/4 in village Pondha and is, therefore, entitled to a decree for joint possession in respect of these two lands also. (2) In the facts and circumstances of this case the defendants are not, in this case, entitled to a declaration that in the event of partition of the holding, the agricultural house situate on Khasra No. 61, together with the well, engine and pump fitted therein shall be allotted to their share. The case shall now go before the appropriate Bench with this opinion. Judgment--On difference of opinion between Sen and Malik JJ., the case was referred to Vyas J. who has agreed with the opinion of Sen J. In view of this, the appeal fails and is hereby dismissed with costs. Counsel's fee as per schedule, if certified. Final Result : Dismissed