R.L. Gulati, J.
1. The petitioner is a co-sharer of certain land with respondent Nos. 3 to 5. In 1963 respondent Nos. 3 to 5 filed a suit in the court of the Assistant Collector, First Class, Moradabad, under Section 59 of the U. P. Tenancy Act seeking a declaration that they were the owners to the extent of 5/6th share of the land comprised in Schedule I annexed to the plaint and the petitioner was the owner of the remaining 1/6th. The petitioner contested the suit on various grounds. He contended that earlier in 1950 he had filed a suit for partition and an ex parte decree was passed in his favour declaring him to be the owner of 1/3rd share and he was put in possession of the one-third share through a dakhalnama. The ex parte decree was later set aside and a fresh decree was passed in 1952 allotting to him only a one-sixth share, but he continued in possession of the one-third share which he had already occupied. His contention was that the opposite parties had failed to apply for restitution under Section 144, Civil Procedure Code and by virtue of Sub-section (2) thereof the suit was barred. It was further contended that he perfected his title to the extent of one-third share through adverse possession as he remained in continued possession from May 16, 1950 onwards. The suit was dismissed by the (trial court on January 30, 1964 on the ground that the suit as framed was not maintainable. The trial court repelled the petitioner's contention that he had acquired a title through adverse possession. There was an appeal against that order and the Additional Commissioner by his order dated August 4, 1964, allowed the appeal, set aside the decree and order of the trial court and decreed the suit of the plaintiffs (respondent Nos. 3 to 5) declaring that they were the co-tenants of the land along with the petitioner and that their share in the holding was 5/6. The petitioner filed a second appeal which has been dismissed by the Board of Revenue. The petitioner has now filed this writ petition challenging the orders of the Additional Commissioner and of the Board of Revenue.
2. Learned counsel for the petitioner has raised three contentions. His first contention is that the suit is barred by Sub-section (2) of Section 144, Civil Procedure Code. Sub-section (1) of Section 144, Civil Procedure Code provides for restitution where a decree has been varied or reversed and Sub-section (2) thereof bars a fresh suit where no such application is made. In my opinion that provision of the Civil Procedure Code has no application. Where an ex parte decree is set aside, it cannot be said that the decree has been varied or reversed, A decree can be varied or reversed on appeal or in some similar proceedings. When an ex parte decree is set aside, a new decree is passed thereafter and that decree cannot be said to be the result of any variation or reversal of any prior decree. A restitution in such a case may be claimed under Section 151, Civil Procedure Code. But Sub-section (2) of Section 144, Civil Procedure Code will not come into play at all so that it cannot be said that a fresh suit would be barred. This view of mine is supported to a great extent by a decision of the Madras High Court in Kandaswami Mudali v. Annamalai Reddi AIR 1937 Mad 150.
3. The second contention was that there was no joint tenancy left after the suit for partition had been filed and decreed in 1952 and therefore the view taken by the Additional Commissioner and the Board of Revenue that the possession of the petitioner was that of a co-sharer was wrong. I do not agree with that contention either. After the ex parte decree was set aside, the parties had been relegated to their original position, so that they became co-sharers once again in respect of the entire land. The fact that the petitioner continued to remain in possession of a larger share than belonged to him did not in any way alter the character of his possession. In my opinion the character remained that of a co-sharer. It is now well settled that the possession of a co-sharer is on behalf of all the co-sharers and cannot be said to be adverse to the remaining co-sharer (see Mohammad Baqar v. Naim-un-nisa Bibi : AIR1956SC548
4. Learned counsel for the petitioner in the end contended that the suit as framed was not maintainable and it had been rightly dismissed by the trial court. He argued that in the circumstances of the case a suit for declaration of exclusive rights over 5/6th share was not maintainable when the petitioner had already been put into exclusive possession of one-third share in pursuance of an ex parte decree passed in 1950. There is no force in this contention. The ex parte decree has already been set aside and it cannot be said that the petitioner remained in possession of one-third share by virtue of any decree in his favour. Moreover, such an objection ought to have been raised by him before the two lower appellate courts. He cannot be allowed to raise such a contention for the first time before this Court in a petition under Article 226 of the Constitution.
5. In the end. I am of opinion that the petitioner has failed to show any injustice having been done to him. This Court will not interfere when the petitioner merely relies on technicalities and does not show any injustice. The remedy under Article 226 of the Constitution is discretionary and the Court will be hesitant to grant a relief under that Article to a petitioner when it finds that substantial justice has been done between the parties. The trial court held that the petitioner was entitled to one-sixth share and not to one-third and this finding has been upheld by the two lower appellate courts. In the circumstances this petition fails and is dismissed with costs.