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Kallapa BIn Girmallapa Vs. Venkatesh Vinayak - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom676
AppellantKallapa BIn Girmallapa
RespondentVenkatesh Vinayak
Excerpt:
code of civil procedure (act viii of 1859), section 269 - undivided hindu family--attachment and sale of the interest of one of the coparceners in an undivided estate--partition--possession. - - they failed to make out the case stated in their plaint, viz......sued for a general partition, or they might have asked for a decree declaring them entitled to joint possession with the defendant. the question is, whether in the present case we should give the appellant (the other plaintiff being dead) a decree for joint possession or leave him to his remedy by another suit? having set up a false case, he is not entitled to much consideration; but, on the other hand, it must be borne in mind that the defendant ought not to have been put in exclusive possession of the whole land by virtue of a decree against one coparcener, and, also that a suit for joint possession would probably now be time-barred. for those reasons we determine to follow the precedent in babaji v. vasudev i.l.r. 1 bom. 95 and to give the appellant a decree for joint possession,.....
Judgment:

Melvill, J.

1. The defendant is in possession by virtue of an order under Section 269 of Act VIII of 1859, and the plaintiffs, therefore, could only succeed on the strength of their own title. They failed to make out the case stated in their plaint, viz., that the property in dispute came to them on partition. The District Judge, however, awarded them two-fifths of the property, on the ground that that constitutes the amount of their share in the family property. This decree cannot be maintained, as the plaintiffs, being two of several coparceners in undivided property, could not say that they were entitled to a specific share in any portion of that property. They might have sued for a general partition, or they might have asked for a decree declaring them entitled to joint possession with the defendant. The question is, whether in the present case we should give the appellant (the other plaintiff being dead) a decree for joint possession or leave him to his remedy by another suit? Having set up a false case, he is not entitled to much consideration; but, on the other hand, it must be borne in mind that the defendant ought not to have been put in exclusive possession of the whole land by virtue of a decree against one coparcener, and, also that a suit for joint possession would probably now be time-barred. For those reasons we determine to follow the precedent in Babaji v. Vasudev I.L.R. 1 Bom. 95 and to give the appellant a decree for joint possession, leaving the extent of his interest in the property to be determined, if necessary, by a future suit.

2. The decree of the District Judge is reversed, and in lieu thereof, this Court makes a decree declaring that the plaintiff Kallapa is entitled to Sole possession of the judi land (regarding which no appeal has been made) and joint possession with the defendant Venkatesh of the sirkari land in the plaint mentioned. The parties to bear their own costs throughout.


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