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Tota Ram Vs. Makhan Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All578
AppellantTota Ram
RespondentMakhan Lal
Excerpt:
- - 113 referred to above all that was decided by this court was that as long as an agreement by which different co-sharers were in exclusive possession of different portions of the abadi continued, each of such co-sharers was entitled to use the plots in his exclusive possession and to enjoy them in such a way as he pleased so long as such user or possession did not interfere with the user or possession of the other co-sharers.iqbal ahmad, j.1. the parties to this appeal are brothers. the plaintiff-respondent claimed joint possession of two plots of land on the allegation that the parties were the joint tenants of these plots, and that the defendant had, contrary to his rights, taken exclusive possession of the same. the defence to the suit was that there had been a partition between the parties and that the plots in dispute had been allotted solely to the defendant by that partition. both the courts below have found that the partition set up by the defendant has not been proved. this finding of the lower appellate court is a finding of fact based on evidence and must be accepted in second appeal.2. but an ingenious argument based on an observation, to be presently noted, contained in the judgment of the lower.....
Judgment:

Iqbal Ahmad, J.

1. The parties to this appeal are brothers. The plaintiff-respondent claimed joint possession of two plots of land on the allegation that the parties were the joint tenants of these plots, and that the defendant had, contrary to his rights, taken exclusive possession of the same. The defence to the suit was that there had been a partition between the parties and that the plots in dispute had been allotted solely to the defendant by that partition. Both the Courts below have found that the partition set up by the defendant has not been proved. This finding of the lower appellate Court is a finding of fact based on evidence and must be accepted in second appeal.

2. But an ingenious argument based on an observation, to be presently noted, contained in the judgment of the lower appellate Court is advanced by Mr. Panna Lal on behalf of the appellant. The lower appellate Court has observed that

it is possible that for the proper enjoyment of the joint holding the parties might be cultivating separate plots, but any such mutual arrangement cannot confer any exclusive title on either party.

3. It is argued that in view of the decisions in Jagannath Pershad v. Badri Prashad [1912] 34 All. 113, Jamna v. Jhalli [1920] 18 A.L.J. 129 and Midnapur Zemindary Co., Ltd, v. Naresh Narayan Roy A.I.R. 1924 P.C. 144, the plaintiff was not so long as the arrangement, just referred to, continued, entitled to a decree for joint possession of the plots in dispute.

4. I am unable to agree with the contention of the learned Counsel. In the case of Jagannath Pershad v. Badri Prashad [1912] 34 All. 113 referred to above all that was decided by this Court was that as long as an agreement by which different co-sharers were in exclusive possession of different portions of the abadi continued, each of such co-sharers was entitled to use the plots in his exclusive possession and to enjoy them in such a way as he pleased so long as such user or possession did not interfere with the user or possession of the other co-sharers. It was not decided in that case that an arrangement by which co-owners were in separate possession of different items of property could not be put an end to by the other co-owners. Even if there was an arrangement between the plaintiff and the defendant by which each was cultivating separate plots of land that arrangement could be put an end to by the plaintiff or by the defendants, and it must be assumed that if there was such an arrangement that arrangement has been put an end to by the plaintiff by the institution of the suit giving rise to the present appeal. She view that I am taking is not in conflict with the view taken in the case of Jamna v. Jhalli [1920] 18 A.L.J. 129. The case of Midnapur Zemindary Co., Ltd. v. Naresh Narayan Roy A.I.R. 1924 P.C. 144 is undoubtedly an authority for the proposition that

when co-sharers cannot agree as to how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands.

5. It is to be noted that the plots in dispute in the present case are parts of an occupancy holding which obviously cannot be made the subject-matter of partition without the consent of the zemindar. The occupancy right in the plots in dispute is jointly vested in the plaintiff and the defendant and they are entitled to the joint enjoyment of that right. For the reasons given above, I dismiss the appeal under Order 41, Rule 11, Civil P.C.


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