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Tomejuddi Vs. Mulai Chowkidar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.72
AppellantTomejuddi
RespondentMulai Chowkidar and ors.
Excerpt:
co-owner's possession, effect of - abandonment by one co-owner and exclusive possession by another effect of. - 1. this appeal arises out of a suit for recovery of possession on the allegation of dispossession within 12 years. the plaintiffs said that they were 6-annas owners of a kursa holding of which the defendants were the 10-annas owners, and that the defendants having gradually encroached on their share of land, ultimately dispossessed them of this land entirely in 1313.2. the first court decreed the suit of the plaintiff for joint possession. the court of appeal has dismissed it. in so dismissing it the learned judge says that the plaintiff has failed to prove possession and dispossession as alleged by him. the dispossession as alleged, was within 12 years. in dealing with this matter, the learned judge says that they (the plaintiffs) either abandoned the land or were forcibly dispossessed.....
Judgment:

1. This appeal arises out of a suit for recovery of possession on the allegation of dispossession within 12 years. The plaintiffs said that they were 6-annas owners of a kursa holding of which the defendants were the 10-annas owners, and that the defendants having gradually encroached on their share of land, ultimately dispossessed them of this land entirely in 1313.

2. The first Court decreed the suit of the plaintiff for joint possession. The Court of Appeal has dismissed it. In so dismissing it the learned Judge says that the plaintiff has failed to prove possession and dispossession as alleged by him. The dispossession as alleged, was within 12 years. In dealing with this matter, the learned Judge says that they (the plaintiffs) either abandoned the land or were forcibly dispossessed of it, as stated by the plaintiffs' side, at some period of time within twelve years from the date of the institution of the suit' and then further on, he finds: 'the plaintiffs' story of their dispossession by force by the defendants, therefore, appears, to my mind, to be wholly false.' The dispossession within 12 years was found to be false. This would ordinarily be a complete finding for the purpose of throwing out the suit of the plaintiff.

3. It is contended, however, that there is a difference in this case because the defendants were the co-owners and that therefore the plaintiffs were entitled to treat the possession of the defendants as their own possession, unless and until the defendants prove that by open assertion and exercise of hostile title they have acquired an indefeasible title to the property. That also is a correct proposition of law and would have stood in favour of the appellant but for another finding of the learned Judge that, upon the evidence, the plaintiff must have abandoned the land for more than 12 years before suit.

4. If there was an abandonment, then -the possession of the co-sharer cannot be treated as possession in respect of which the defendant can betaken by the plaintiff as a co-tenant. The fact of the abandonment shows that they have no longer any intention to treat this land as in their possession. They cannot now say that their co-sharers, who have since the abandonment been in actual and exclusive possession of the property, did all this on their behalf.

5. In this view of the case, we think that the finding of the learned Judge that the plaintiffs have failed to prove possession and dispossession within 12 years is correct. This sufficiently disposes of the suit. The appeal is, therefore, dismissed with costs.


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