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Amjad Ali and anr. Vs. AzizuddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All551
AppellantAmjad Ali and anr.
RespondentAzizuddIn and ors.
Excerpt:
- - i am satisfied that article 31 has no application......not exceed rs. 500. a reference to schedule 2, provincial small cause courts act, shows that a suit for profits between co-tenants is not excepted from the cognizance of a court of small causes. the only article which can have a semblance of application is article 31, which however provides:for the profits on immoveable property belonging to the plaintiff which have been wrongfully received by the defendant.3. where one of several cosharers in an occupancy holding is in actual cultivating possession thereof his possession can-not be considered to be wrongful, nor can he be said to be in wrongful receipt of the profits accruing from the holding belonging to them in common. possession of one of the cosharers or receipt of income derived by him from the joint holding is on behalf of all.....
Judgment:

Niamatullah, J.

1. This appeal arises out of a suit for mesne profits by the plaintiff-respondents in respect of their share of an occupancy holding comprising 10 bighas 7 biswas held in common by the parties. The sum claimed in the plaint is Rs. 96-10-3. No ancillary relief for accounts was taken. Their claim was dismissed by the first Court but on appeal it was decreed by the lower appellate Court.

2. A preliminary objection is taken by the learned Counsel for the respondents that a second appeal is barred by Section 102, Civil P. C. It is pointed out that the suit is one cognizable by a Court of Small Causes, and the value does not exceed Rs. 500. A reference to Schedule 2, Provincial Small Cause Courts Act, shows that a suit for profits between co-tenants is not excepted from the cognizance of a Court of Small Causes. The only article which can have a semblance of application is Article 31, which however provides:

for the profits on immoveable property belonging to the plaintiff which have been wrongfully received by the defendant.

3. Where one of several cosharers in an occupancy holding is in actual cultivating possession thereof his possession can-not be considered to be wrongful, nor can he be said to be in wrongful receipt of the profits accruing from the holding belonging to them in common. Possession of one of the cosharers or receipt of income derived by him from the joint holding is on behalf of all the cosharers. I am satisfied that Article 31 has no application. It follows that the suit which has given rise to this appeal is of the [nature cognizable by a Court of Small Causes and therefore a second appeal is barred by Section 102, Civil P. 0, the value of the subject-matter being less than Rs. 500. The appeal is accordingly dismissed with costs.


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