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Krishna Sahai Vs. Murlidhar and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1948All197
AppellantKrishna Sahai
RespondentMurlidhar and ors.
Excerpt:
- - 41 in the year 1943. after that the appellant took possession of that plot as well as of plot no. where a question arises between cosharers, including among them the lambardar, about the manner in which the cosharers should use or enjoy the land, that is a question which is to be decided by a suit in a civil court, and in the last report, if no satisfactory arrangement can otherwise be secured, by a suit for partition. but this is precisely what a jambardar is entitled to do under sub-section (1) of section 245, tenancy act......cosharers the respondents are entitled to collect rent from tenants in the patti in which the plots in suit are situated. but this is precisely what a jambardar is entitled to do under sub-section (1) of section 245, tenancy act. it is said that there has in fact been a mutual partition among cosharers by which certain plots of land have been allotted to each one of them. there is no evidence of this fact, and all the cosharers in the mahal still remain owners of the entire patti. the arrangement is only one for convenience, and, in my view, there is no essential difference, between the position of the respondents in the present case and that of a lambardar under the u.p. tenancy act. in my opinion the ruling in raghubar dayal v. panna lal 34 a.i.r. 1947 all. 1 will fully apply to.....
Judgment:

Harish Chandra, J.

1. This is a defendant's second appeal from the decree of a Revenue Officer, which was confirmed by the District Judge of Farrukhabad on appeal ejecting him under Section 180, U.P. Tenancy Act, 1939, from two plots bearing plot Nos. 41 and 54 in Patti 1 of village Kampil, tahsil Qaimganj, in the district of Farrukhabad.

2. The suit was brought against the appellant (defendant) by five cosharers in the mahal who are the respondents to this appeal. It is not disputed that the appellant is also a cosharer in the mahal. It appears that one Taja was ejected by the respondents from one of the two plots in dispute, viz., plot No. 41 in the year 1943. After that the appellant took possession of that plot as well as of plot No. 54 and the respondents sought to eject him as a trespasser under Section 180, Tenancy Act, and their suit has as I have sic said, been decreed by the Courts below.

3. The contention raised on behalf of the appellant is that the respondents were not en-titled to eject another cosharer as a trespasser under Section 180 of the Act, and reliance is placed on the Full Bench case in Raghubar Dayal v. Panna Lal 34 A.I.R. 1947 All. 1. In that case a lambardar had sued a cosharer for ejectment under Section 180 of the Act, and it was held by the Full Bench that he could not do so. They were of opinion that:

Where a question arises between cosharers, including among them the lambardar, about the manner in which the cosharers should use or enjoy the land, that is a question which is to be decided by a suit in a civil Court, and in the last report, if no satisfactory arrangement can otherwise be secured, by a suit for partition.

They further point out:

Cosharers in a mahal are in the same position as tenants in common in English law, that is, each cosharer has a share in every part of the mahal and each cosharer is entitled to use any part just as much as any other cosharer provided that he does not permanently exclude the other cosharers.

4. It is argued on behalf of the respondents that their position is different from that of a lambardar. It is in evidence - and it was admitted by the appellant himself in a statement made by him in the ejectment suit against Teja - that by a mutual arrangement among cosharers the respondents are entitled to collect rent from tenants in the Patti in which the plots in suit are situated. But this is precisely what a Jambardar is entitled to do under Sub-section (1) of Section 245, Tenancy Act. It is said that there has in fact been a mutual partition among cosharers by which certain plots of land have been allotted to each one of them. There is no evidence of this fact, and all the cosharers in the Mahal still remain owners of the entire patti. The arrangement is only one for convenience, and, in my view, there is no essential difference, between the position of the respondents in the present case and that of a lambardar under the U.P. Tenancy Act. In my opinion the ruling in Raghubar Dayal v. Panna Lal 34 A.I.R. 1947 All. 1 will fully apply to the facts of the present case.

5. I therefore allow the appeal, and, setting aside the decree of the lower Court, dismiss the respondent's suit with costs throughout.


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