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Sheotahal Dube Vs. Lal NaraIn Prasad Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All695a
AppellantSheotahal Dube
RespondentLal NaraIn Prasad Chand and anr.
Excerpt:
- - in such a case definite shares can be enjoyed separately......section 41, t p. act, and also a denial of the right of one co-owner to got possession of the entire plots. the plea under section 41 was not pressed in the court below and has been disposed of by us in the connected appeal, it being found that it has no force.2. a sale-deed was executed by the plaintiff's mother not as his guardian but in her own right. the lower appellate court has found that she was a mere benamidar and had no right to the land. in the absence of any question of estoppel a transfer by her would confer no right on the defendant. the lower appellate court has found and this finding has been accepted by a learned judge of this court that the defendant-appellant was no more than a trespasser.3. the only other point pressed before us is that one co-owner cannot obtain.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a defendant's appeal arising out of a suit for possession. The plaintiff claimed to be one of the owners entitled to a number of plots, The other owners did not join in the suit. The defendant who was in possession claimed to have acquired these plots under a sale deed from the plaintiff's mother. He took the plea, of protection under Section 41, T P. Act, and also a denial of the right of one co-owner to got possession of the entire plots. The plea under Section 41 was not pressed in the Court below and has been disposed of by us in the connected appeal, it being found that it has no force.

2. A sale-deed was executed by the plaintiff's mother not as his guardian but in her own right. The lower appellate Court has found that she was a mere benamidar and had no right to the land. In the absence of any question of estoppel a transfer by her would confer no right on the defendant. The lower appellate Court has found and this finding has been accepted by a learned Judge of this Court that the defendant-appellant was no more than a trespasser.

3. The only other point pressed before us is that one co-owner cannot obtain possession of the entire plots. Reliance is placed on the case of Rohan Singh v. Ahsan Begam [1912] 17 I.C. 469. On the other hand there is clear authority in the cases of Mannu v. Nasrat Ullah [1901] A.W.N.36 and Sri Thakurji v. Hira Lal A.I.R. 1922 All. 408 to the effect that one cosharer can sue to eject a trespasser from the joint land. It seems to us that if the property in dispute had been the zamindari share it might have been possible to argue that the plaintiff should be given a decree of the share to which he himself was entitled and should not get a decree for the shares to which the other co-owners would be entitled. In such a case definite shares can be enjoyed separately. But the property in dispute in the present case consists of entire plots which may be cultivated. A cosharer has a joint interest in all the entire plots, and has a right to eject a trespasser who is holding them without any right and title. We think that for the purpose of ejecting a trespasser from such plots it is not necessary that all the cosharers should join in the suit.

4. The appeal is accordingly dismissed with costs.


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