1. The only question that has been sought to be raised by Dr. Naik, the learned advocate for the appellants, in this second appeal is that as the original plaintiff Anil alias Lemichand Hukumchand was held to be only a half owner of City Survey No. 847, the Court could not give a declaration to him for the entire property as against the defendants.
2. Now, it requires to be noticed that this point (which is said to be a point of law) has not been taken in the grounds of appeal even indirectly. It is necessary to set out some of the salient facts in order to appreciate this contention.
3. Respondent No. 1 Anil alias Lemichand Hukumchand, who is the original plaintiff and who will be hereinafter referred to as 'the plaintiff', filed a suit in the Court of the Civil Judge, Junior Division, at Chalisgaon, being Regular Civil Suit No. 134 of 1963. In that suit the plaintiff claimed a declaration of title and possession of the suit property, i.e. to say, City Survey No. 847, measuring 31 square yards, situated at Chalisgaon. That was an open space having walls on all sides and a pavement intended for user of house City Survey No. 846. It would appear that in the suit there was a dispute as to the Ota and latrine attached to City Survey No. 846, but we are not with that aspect of the matter in this second appeal.
4. The plaintiff's case was that the property had been built by his grand-father Shri Narayan Bankat Shet of Chalisgaon and that the suit property, i.e. to say, City Survey No. 847 was a part of this property. It is also contended that this property had come to the plaintiff's share on partition. It was further contended that one Ramchand Nyahalchand Shet, who was the nephew of the plaintiff's grand-father Narayan Bankat Shet, had been given permission to use the suit property, i.e. to say, City Survey No. 847 and that was a permissive user.
5. The narrative then goes on to mention that the said Ramchand Nyahalchand Shet was indebted to a money-lender by the name of Multanchand Fulchand, the original defendant, and that the said Multanchand Fulchand had obtained a decree against Ramchand Nyahalchand Shet in Special Civil Suit No. 5 of 1952. In execution of the decree in that suit an auction sale was held of certain properties belonging to the judgment-debtor therein and these properties were purchased by the defendant himself at the Court auction sale.
6. Now, it is not disputed that the property City Survey No. 847 is not comprised in the sale certificate which was issued to the defendant Multanchand Fulchand. However, while taking possession of other properties the said Multanchand Fulchand improperly sought to take possession of City Survey No. 847 also.
7. It would appear from the document of auction sale, which is at exh. 107, that the said Multanchand Fulchand purchased only City Survey Nos. 848 and 849 in the Court auction and the only mention to the suit property i.e. City Survey No. 847 in the certificate of auction sale dated October 22, 1962 is that the reference is made to City Survey No. 847 as the property on the north of City Survey No. 848 and also on the north of City Survey No. 849. In other words, the reference to City Survey No, 847 is a reference to a boundary. There is nothing in that document which would show that Multanchand Fulchand had purchased City Survey No. 847 at the auction sale and, therefore, the said Multanchand Fulchand had no title whatsoever and was in wrongful possession of the suit property.
8. It requires to be noticed, however, that the original defendant Multanchand Fulchand nevertheless laid claim to the suit property which was, however, rejected by both the Courts below.
9. In these circumstances the plaintiff was compelled to file a suit for declaration and possession against the original defendant, who, however, died during the suit proceedings and his heirs were brought on record.
10. The learned trial Judge, after raising the necessary issues and considering the evidence, found that the plaintiff had proved that the property bearing City Survey No. 847 was his ancestral property and on partition had come to his share. The learned trial Judge also found that the plaintiff had proved that Ramchand Nyahalchand had only a permissive user of the property City Survey No. 847 and further that the original defendant had failed to prove that he the original defendant had purchased the suit property, City Survey No. 847 in the auction sale held by the Court in Special Darkhast No. 104 of 1957 and that he had thereby become the owner of the City Survey No. 847.
11. It may be mentioned in the passing that the learned trial Judge also held that the plaintiff had proved that the Ota and latrine, with reference to which there was some dispute, formed part of City Survey No. 846 and that the same were of the plaintiff's exclusive ownership.
12. On these findings, the defendant was held to be a trespasser and a decree was granted to the plaintiff to recover possession inter alia of City Survey No. 847.
13. It may be mentioned that during the proceedings of the suit the defendant Multanchand Fulchand died and his five heirs were brought on record. Three of these heirs considered themselves aggrieved by the order and judgment of the trial Court and filed an appeal in the District Court at Jalgaon, being Civil Appeal No. 46 of 1966 and in this appeal the other two heirs of the deceased Multanchand Fulchand were joined as respondents.
14. The learned District Judge came to the conclusion that the defendants could not claim any interest whatsoever in the suit property, City Survey No. 847. He, however, came to the conclusion as regards the plaintiff's title that City Survey No. 847 was a joint property of the plaintiff and the said Ramchand Nyahalchand. The learned District Judge was of the view that even though Ramchand Nyahalchand had purported to sell City Survey No. 847 to one Lekhimchand, who was not a party to the suit, the defendants could not draw any benefit out of this transaction of sale in favour of Lekhimchand and that in any event the defendants had no claim or interest whatsoever in the suit property, City Survey No. 847. On this view of the matter the learned District Judge confirmed the decree of the trial Court and dismissed the appeal.
15. Dr. Naik has now attempted to argue as a point of law which he says he is entitled to take notwithstanding that it is no where mentioned in the grounds of appeal that as the lower appellate Court has held the plaintiff to be only a part-owner of City Survey No. 847, the decree for declaration and possession for the entire City Survey No. 847 cannot stand against the defendants.
16. First of all I have looked into the Memo of Appeal and I find curiously that the Memo of Appeal proceeds on the footing that both the Courts below have held that City Survey No. 847 was owned by the plaintiff. My attention has been invited to grounds Nos. 31, 33, 37 and 38, which, if read, whether separately or together, only deal with the finding as to title and ownership of City Survey No. 847, but the point that is now sought to be taken that a co-owner cannot obtain a decree for possession against a trespasser has not been canvassed.
17. Dr. Naik has sought to elaborate on the question that he is entitled to raise a point of law even in second appeal provided the point of law arises on the findings of the lower Courts or on the issues as framed and on the evidence already recorded.
18. Now, there is no doubt that a pure question of law can be raised for the first time in an appeal but it is also correct to say that while the Court will be acting within its powers if it allowed a new point of law to be raised in appeal for the first time, it is nevertheless not bound to do so and may in its discretion decline to do so. However, these are all academic questions and I do not find it necessary to discuss them any further.
19. Assuming that it is open to Dr. Naik to argue that a decree for possession against a trespasser cannot be granted to a plaintiff who is not the full owner of the property and is at best a co-owner, I find that the view of the learned District Judge that the mere fact that the plaintiff has been held by him to hold only a joint half interest in the suit property cannot help the defendants in resisting the claim for possession.
20. Mr. V.V. Divekar, the learned advocate for respondent No. 1, has argued that it has been held by both the Courts below that the defendants have no right whatsoever in the suit property and that they are, therefore, trespassers. On this finding, Mr. Divekar says that the defendants cannot be heard to contend that merely because the plaintiff has not been held to be the owner of the entire City survey number, the defendants are entitled to remain on a part of it even though they had been held to be rank trespassers. In other words, Mr. Divekar's contention is that it is open to one of the several co-owners of a property to sue to eject a trespasser from the joint property. He has invited my attention to a Division Bench judgment of this Court in Tuljaram v. Harkisan (1928) 31 Bom. L.R. 448 in support of his contention. Now, in that case one Ujambai had filed the suit to recover possession of the house. It was held by the lower Courts that Ujam was entitled only to a moiety of the house and that as regards the other moiety one Narandas was a preferable heir rather than Ujam. Ujambai then appealed to the High Court and the appeal was heard by Fawcett Acting C.J. and Mirza J, when their Lordships were of the opinion that Narandas who had been found to be a preferable heir by the lower Court as well as one Chunilal should be joined as parties to the suit and they passed an interlocutory order in that behalf.
21. It requires to be noticed that in the interlocutory order or judgment Fawcett Ag. C.J. noticed the main question which was with regard to the nature of the relief that the plaintiff was entitled to get. His Lordship also noticed that the trial Court had held that the suit should be dismissed as the plaintiff had not proved her title to the whole house but only to half of it. The learned District Judge had held that it was unduly harsh to deny the plaintiff any relief because she only succeeded in proving her title only to half of it and that a decree for joint possession, with the defendant should be passed.
22. After the interlocutory order had been passed, it was found that Chunilal had died without an issue and Narandas was made a party. The appeal was then heard again. At this stage the Court noticed that Narandas claimed to be the owner of the house in suit, and that he asked that a decree for possession of the house be passed in his (Narandas's) favour. Fawcett J., who delivered the judgment of the Court, considered the new development but he felt that the kind of relief sought by Narandas could not be given as that would turn the present suit as one of quite a different nature. His Lordship observed that it was not necessary to have the dispute between Narandas and Ujam decided before any relief in the suit could be given to the plaintiff. His Lordship made the following observations (p. 452) :.we think the fairest course is to act upon the view taken by this Court in Maganlal Dulabhdas v. Budhar Purshottam I.L.R. (1926) 51 Bom, 149: 39 Bom L.R. 222 s.cand the Madras cases which have been already cited in our previous interlocutory judgment, that the plaintiff alone was competent to sue the defendant who was a trespasser and that her heirs are entitled to a decree for possession against the defendant. But we make it clear that this is on the assumption that she is either the exclusive owner of the house or a co-owner of it with Narandas.
23. I find myself in respectful agreement with this judgment of our High Court and applying it to the facts of this case I find that there can be no objection to the plaintiff (even though he be part owner) obtaining a decree for possession against the defendants who are at the very best trespassers and who have no interest whatsoever in the property. It is, of course, true that ordinarily it would be desirable that co-owners should be parties to a suit for possession against a trespasser, but that is not to say that one out of several co-owners cannot sue to eject a trespasser, particularly when that person claims the whole property for himself. Now, it may happen, as it has in this case, that the Court holds the plaintiff to be only a part-owner. But that in my view cannot defeat the plaintiff in his quest for possession as against a trespasser.
24. In the result I find the judgment of the learned District Judge perfectly consonant with law and the point taken up by Dr. Naik that a decree for possession could not be passed in the circumstances is not tenable and is rejected.
25. The appeal fails and is dismissed with costs.