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Kuchibhotta Seetakama Sastri and ors. Vs. Kuchibhotta Sivaramayya and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in95Ind.Cas.856
AppellantKuchibhotta Seetakama Sastri and ors.
RespondentKuchibhotta Sivaramayya and ors.
Cases ReferredAhmad Sahib Shutari v. Magnsite Syndicate Ltd.
Excerpt:
.....borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the..........executors, who like trustees must act together.5. an attempt has been made to distinguish ahmad sahib shutari v. magnsite syndicate ltd. (4), on the ground that the present is not a case of trespass, the defendants nos. 2 to 6 being agraharamdars like the plaintiffs.6. but reference to para 3 of the written statement of defendants nos. 1 to 6 shows clearly that defendant no. 2 stood upon an exclusive title by gift to the suit property and that first defendant's title was derived from the 2nd defendant.7. i think that this certainly amounted to a deaial of the agraharamdars right of joint ownership and an encroachment on the property of these joint owners in the assertion of a separate adverse title and that such acts on the part of defendants nos. 1 to 6 gave rise to a cause of action.....
Judgment:

1. It is argued that this suit should have been dismissed on the technical ground that two of the agraharamdars, who are joint owners, were not parties and that the plaintiffs' Pleader declined to add them as parties. Ahmad Sahib Shutari v. Magnesite. Syndicate, Ltd. 29 Ind. Cas. 60 : 39 M. 501 : 2 L. W. 460 : 17 M. L. T. 387 : 28 M. L. J. 598. establishes the principle that one or more co-owners can maintain an action for ejectment of a trespasser. This case quoted the opinion of Best, J., in Gopalasami v. Periasami Tevar 6 M. L. J. 27., who held dissenting from Shephard, J., who sat with him that a Hindu coparcener could sue alone to recover joint family property without making the other coparceners parties to the suit.

2. The learned Judge was in favour of remanding the suit for fresh disposal after joining the plaintiffs as defendants, observing that the trespasser-defendants could insist on the procedure in order to protect themselves from a multiplicity of suits. That was a decision under the C. P. C. of 1882 before Section 31 was amended, as regards non-joinder of parties by Order I, Rule 9.

3. I do not think that the Bench which decided Ahmad Sahib Shutari v. Magnsite Syndicate Ltd. 29 Ind. Cas. 60 : 39 M. 501 : 2 L. W. 460 : 17 M. L. T. 387 : 28 M. L. J. 598., intended to import all Best, J's observations with their exposition of the law as it stands under the Code of 1905.

4. Mohanavelu Mudaliar v. Annamalai Mudaliar : AIR1923Mad337 ., was a case of executors, who like trustees must act together.

5. An attempt has been made to distinguish Ahmad Sahib Shutari v. Magnsite Syndicate Ltd. (4), on the ground that the present is not a case of trespass, the defendants Nos. 2 to 6 being agraharamdars like the plaintiffs.

6. But reference to para 3 of the written statement of defendants Nos. 1 to 6 shows clearly that defendant No. 2 stood upon an exclusive title by gift to the suit property and that first defendant's title was derived from the 2nd defendant.

7. I think that this certainly amounted to a deaial of the agraharamdars right of joint ownership and an encroachment on the property of these joint owners in the assertion of a separate adverse title and that such acts on the part of defendants Nos. 1 to 6 gave rise to a cause of action to recover joint possession from the aliene (1st defendant).

The decrees of the Courts below are right and the second appeal is dismissed with costs of contesting respondents (one set).


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