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Bhirgunath Rai Vs. ApnaraIn Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1923All445; (1923)ILR45All157; 71Ind.Cas.455
AppellantBhirgunath Rai
RespondentApnaraIn Rai and ors.
Excerpt:
joint ownership - exclusion of one co-sharer from, possession of joint, property--nature of decree to which the person so excluded is entitled. - - in the present case the learned judge of the lower appellate court has stated in his judgment that a decree for joint possession might lead to considerable difficulty and trouble by reason of the parties not being on good terms......the plaintiff as a co-sharer claims a declaration of his right to the lands in dispute and also joint possession. the courts below have decreed the claim for a declaration of his right but have refused to grant him joint possession. in our opinion, in so doing the courts below are in error. it is true that under certain old rulings of this court, in a suit between co-sharers a decree for joint possession was refused, but in the recent course of rulings of this court it has been held that a decree for joint possession ought to be granted. we may refer to the cases of bhairon rai v. saran rai (1904) i.l.r. 26 all. 588 jagarnath ojha v. ram phal (1911) i.l.r. 34 all. 150, bisheshar singh v. hanuman singh (1921) i.l.r. 44 all. 1 and sarabjit singh v. raj kumar (1921) i.l.r. 44 all. 5. the.....
Judgment:

Pramada Charan Banerji and Gokul Prasad, JJ.

1. The plaintiff claimed joint possession of nine plots of land comprising 8 bighas and 13 biswas. He is one of the co-sharers in the village and is also the lambardar; the principal defendants are also co-sharers in. the village. It was alleged that the defendants had forcibly turned out the non-occupancy tenants who cultivated these lands, that the tenants brought a suit for restoration of possession and that the matter was compromised and, in the end, the-principal defendants took exclusive possession of the nine plots in. question. The plaintiff as a co-sharer claims a declaration of his right to the lands in dispute and also joint possession. The courts below have decreed the claim for a declaration of his right but have refused to grant him joint possession. In our opinion, in so doing the courts below are in error. It is true that under certain old rulings of this Court, in a suit between co-sharers a decree for joint possession was refused, but in the recent course of rulings of this Court it has been held that a decree for joint possession ought to be granted. We may refer to the cases of Bhairon Rai v. Saran Rai (1904) I.L.R. 26 All. 588 Jagarnath Ojha v. Ram Phal (1911) I.L.R. 34 All. 150, Bisheshar Singh v. Hanuman Singh (1921) I.L.R. 44 All. 1 and Sarabjit Singh v. Raj Kumar (1921) I.L.R. 44 All. 5. The case last mentioned is almost exactly on all fours with the present case. In that case it was held that the plaintiff was entitled to a. decree for joint possession. In the present case the learned judge of the lower appellate court has stated in his judgment that a decree for joint possession might lead to considerable difficulty and trouble by reason of the parties not being on good terms. In every case in which one co-sharer forcibly dispossesses another or keeps another co-sharer out of possession, there is undoubtedly a good deal of bad feeling between them, but that is no reason for depriving a plaintiff of the, possession to which he is entitled. No doubt there may be eases in which joint possession ought not to be granted.

2. Some of these cases were pointed out in the ruling in Jagarnath Ojha v. Ram Phal (1911) I.L.R. 34 All. 150, and a similar case is the case of Watson and Co. v. Ramchund Dutt (1890) I.L.R. 18 Calc. 10, referred to by the learned judge in his judgment. If a co-sharer were allowed to take possession to the exclusion of other co-sharers he would be able to convert land held under all the co-sharers by non-occupancy tenants into his own khudkasht and in this way lie may usurp the whole of the land in the village and take actual possession of it. This certainly is not what the law contemplates. We think that the courts below were wrong in refusing to grant a decree for joint possession and that they ought to have, followed the ruling in Sarabjit Singh v. Raj Kumar (1921) I.L.R. 44 All. 5. We allow the appeal, vary the decrees of both the courts below and make a decree for joint possession in Addition to the decree already made by those courts. The appellant will have his costs of this portion of the claim in the courts below and the costs of this appeal.


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