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Ram Khelawan Koeri Vs. Bishwanath Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All81
AppellantRam Khelawan Koeri
RespondentBishwanath Prasad and ors.
Excerpt:
- .....to earn khelawan who is the appellant before me. the plaintiffs brought a suit within 12 years for joint possession of this land. it has bean ruled by a full bench of this court in the case of hanuman prasad narain singh v. mathura prasad narain singh : air1928all472 that a decree for joint possession cannot be refused on the mere ground that it would be impracticable or inadmissible, and a decree has been passed by the lower appellate court in favour of the plaintiffs on the ground that they are joint zamindars in this holding and that the defendant ram kholawan being a permanent lessee from one co-sharer alone is a trespasser as far as the other co-sharers are concerned, in appeal it is argued that the judgment of the full bench to which i have referred is in favour of the appellant.....
Judgment:

Pullan, J.

1. The plaintiffs and one Shaobadal Lal are co-sharers in a certain village. Many years ago Sheobadal Lal brought into cultivation a plot of waste land which ha made over by, means of a permanent lease to Earn Khelawan who is the appellant before me. The plaintiffs brought a suit within 12 years for joint possession of this land. It has bean ruled by a Full Bench of this Court in the case of Hanuman Prasad Narain Singh v. Mathura Prasad Narain Singh : AIR1928All472 that a decree for joint possession cannot be refused on the mere ground that it would be impracticable or inadmissible, and a decree has been passed by the lower appellate Court in favour of the plaintiffs on the ground that they are joint zamindars in this holding and that the defendant Ram Kholawan being a permanent lessee from one co-sharer alone is a trespasser as far as the other co-sharers are concerned, In appeal it is argued that the judgment of the Full Bench to which I have referred is in favour of the appellant because in that case it was held that a decree for joint possession was properly refused where the defendants had been in undisturbed possession for a period of about 25 years of joint sir lands with the plaintiffs' implied consent and had never denied the title of the plaintiff. But the facts of the two cases are dissimilar. In the present case it appears to me that the defendant has denied the plaintiffs' title, His defence was that there had bean a partition between the co-sharers, that the area in which this holding is situated belonged exclusively to his lessor Sheobadal Lal and that the plaintiff had therefore no right to sue for possession. Even if Sheobadal Lal had brought under cultivation this waste land and occupied it as his exclusive property with the agreement of his co-sharers, namely, the plaintiffs, it was still not permissible for him to alienate that property by means of a perpetual lease in favour of the present appellant : Jamna v. Jhalli [1920] 55 I.C. 94. Indeed, as hold by their Lordships of the Privy Council in Midnapur Zamindary Co. v. Naresh Narayan Roy A.I.R. 1924 P.C. 144 no co-sharer can as against his co-sharers, create, by letting the lands to cultivators as his tenants, any right of occupancy in the lands in them. It appears to me therefore that the lower Court was right in holding that the appellant is as far as the plaintiffs are concerned a trespasser, that he has denied the plaintiffs' title, and that they are entitled to a decree for joint possession in this holding.

2. I dismiss this appeal with costs.


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