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The Allahabad Bank Ltd. Vs. Subodh Gopal Bose - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberFull Bench Ref. No. 1 of 1958 in A.F.A.D. No. 1142 of 1953
Judge
Reported inAIR1963Cal209
ActsBengal Land Revenue Sales Act, 1859 - Section 37; ;Code of Civil Procedure (CPC) - Order 21, Rule 35(2)
AppellantThe Allahabad Bank Ltd.;subodh Gopal Bose
RespondentSubodh Gopal Bose;The Allahabad Bank Ltd.
Advocates:Apurbadhan Mukherjee, ;Sudhir Kumar Bose, ;P.N. Mitter and ;Joygopal Ghose, Advs.
DispositionAppeal dismissed
Cases Referred(Subodh Gopal Bose v. Khairunnessa Bai
Excerpt:
- bachawat, j.1. the plaintiff respondent is the purchaser of tauzi no. 6 of the 25-parganas collectorate in sixteen annas share at a revenue sale held on january 6, 1936. as such purchaser he acquired the lands included within the tauzi free from encumbrances with the fight to annul alt under-tenures which were not protected by the exceptions in section 37 of the bengal land revenue sales act, 1859 [act xi of 1859). the disputed property is land at premises no. 1 ronaldshay road, in mouza alipore in which tauzi no. 6 had 1 anna 3 gandas share. the disputed land as also other iands in matiza alipore were jointly owned by the proprietors of tauz no. 6 and several other tauzis. the defendant's landlord held the land under a lease from the proprietors of all the tauzis other than tauzi no. 6......
Judgment:

Bachawat, J.

1. The plaintiff respondent is the purchaser of Tauzi No. 6 of the 25-Parganas Collectorate in sixteen annas share at a revenue sale held on January 6, 1936. As such purchaser he acquired the lands included within the Tauzi free from encumbrances With the fight to annul alt under-tenures which were not protected by the exceptions in section 37 of the Bengal Land Revenue Sales Act, 1859 [Act XI of 1859). The disputed property is land at premises No. 1 Ronaldshay Road, in mouza Alipore in which Tauzi No. 6 had 1 anna 3 gandas share. The disputed land as also other iands in Matiza Alipore were jointly owned by the proprietors of Tauz No. 6 and several other Tauzis. The defendant's landlord held the land under a lease from the proprietors of all the Tauzis other than Tauzi No. 6. The defendant ts In possession of the land for a long time and has constructed valuable buildings on it. The plaintiff now seeks to recover joint possession of the land on the ground that the defendant is a trespasser in respect of the plaintiffs share in it. The defendant disputed that the land appertained to tauzi No. 6 and/or that the plaintiff has any interest in it; alternatively the defendant claimed a protected Interest as a tenant under Tauzi No. 6. The written statement of the defendant denying the plaintiff's title was filed in 1918. All the Courts have found that 1 anna 3 gandas share of the land appertained to Tauzi No. 6 of which the plaintiff was the owner and have granted the plaintiff a declaration of his title to the extent of his share in the land. The Trial Court rejected the prayer for joint possession and mesne profits on the ground that the defendant was a tenant by implication under Tauzi Ho. 6. The lower Appellate Court negatived the plea of tenancy by implication and granted a decree for joint possession, and mesne profits. The defendant has now appealed to this Court. All the Courts have concurrently found that the defendant did not acquire a tenancy under Tauzi No. 6 by adverse possession. The finding that the defendant was not a tenant under Tauzi No. 6 is not now challenged. A further point that the suit is berrad by West Bengal Act VII of 1950 is not pressed before us. On these findings the question arises whether the plaintiff is entitled to recovery of joint possession of the disputed land, and mesne profits and if so on what terms. In the case of Subodh Gopal Bose v. Khalrunnessa Bai, 60 Cal WN 361, the same plaintiff on somewhat similar facts was given a decree for recovery of joint possession 'subject to the condition that the plaintiff wilt not be entitled to enter into occupation or exercise any right thereon until he obtains a decree or order by a competent Court in a suit or proceeding for partition'. The Division Bench hearing the present appeal doubted whether on these facts the plaintiff should be given 3 decree for Joint possession and assuming that such a decree should be given the Division Bench disapreeing with the decision in 60 Cal WN 361 held that there was no justification for imposing the condition. Acccordingly the Division Bench referred the appeal to the Full Bench after formulating the following questions for Its decision;

'(1) Whether one of a body of landlords is entitled to joint possession with a person who is in occupation of a part of the land belonging to him and other persons jointly, as a tenant of such other persons;

(2) If the answer to this question be in the affirmative, whether it is right in law to annex a condition that such a decree should not be executed unless a partition has taken place;

(3) Was the case reported in 60 Cal WN 361 rightly decided '

2. The first question does not admit of a general answer. The answer will depend upon the facts of each case. For the purposes of this case it is sufficient to say that as a general rule a plaintiff owning lands jointly with other co-owners is entitled to a decree for joint possession against a defendant who is in exclusive possession of a part of the joint lands as a tenant of the other co-owners in open denial of the plaintiff's title. Such exclusive possession in open assertion of a hostile title constitutes an ouster of the plaintiff and is adverse to him. A bare declaration of the plaintiff's title will not interrupt the running of adverse possession, justice demands that in such a case the plaintiff should be given a decree for joint possession on the strength of which he may make a symbolical re-entry on the land and thereby interrupt the adverse possession. This conclusion is consistent with the decisions in Robert Watson and Co. v. Ramchand Dutt, 17 Ind App 110 (120) and Basanta Kumari Dasya v. Mohesh Chandra Saha, 18 Cal WN 328 : (AIR 19W Cal 283). Whether or not there has been an ouster of the plaintiff depends on the facts of each case. Even denial of the plaintiff's title in the written statement may be sufficient to establish ouster, see Sashishekhareswar Ray v. Hemangini Debi, AIR 1918 Cal 19. On the facts of this case I am satisfied that there has been ouster of the plaintiff and he is prima facie entitled to a decree for joint possession. The fact that the plaintiff and the defendant's landlords are joint owners of other lands is not by itself sufficient to deprive the plaintiff of his prima facie right to such a decree. The defendant is not a co-owner of the other lands. There is no reason why the plaintiff should be driven to a suit for general partition of all the joint lands and be refused a decree for joint possession of a part of those lands from which he has been ousted by the defendant, especially where, as in this case, the denial of the relief may extinguish the plaintiff's title to the land and may seriously prejudice him. On similar facts the Court rightly granted a decree for Joint possession in 60 Cal WN 361. In view of the ouster the plaintiff is entitled to mesne profits.

3. The decree for joint possession may be executed, only in the manner provided for by Order XXI R. 35 (2) C. P. C., see Owarikanath Mondal v. Ram Nath Barman, 67 Cal U 39. In execution of such a decree the plaintiff will be enitled to get symbolical possession only and the defendant's khas possession will not be disturbed.

4. It is not right in law to annex to the decree for Joint possession a condition that it will not be executed until a partition has taken place or a condition that 'the plaintiff will not be entitled to enter into occupation or exercise any right thereon until he obtains a decree or order by a competent Court in a suit or proceeding for partition' as was done in the case in 60 Cat WN 361. The decree for Joint possession to which the plain-tiff is entitled cannot be rendered ineffective by imposing such a condition. The further contention of the appellant that the decree should be subject to a condition that It can be executed only in the manner provided for by Order XXI Rule 35 (2) C. P. C. is equally unsound and should be rejected. I Know no law which requrest that the Court passing a decree should declare that the decree can be executed only in accordance with law. The suggested condition is implicit in the decree and need not be made explicit

5. In my opinion the lower Appellate Court rightly passed the decree for joint possession and mesne profits in favour of the plaintiff and no case for reversal or modification of the decree is made out

6. We pass the following order : --

The questions referred to the Full Bench are answered as follows :

Q. (1). It is not possible to give a general answer to this question. The answer will depend on the facts of each case. As a general rule on proof of ouster the plaintiff co-owner will be entitled to a decree for joint possession of part of the joint lands against a person who holds the lands as a tenant of the other co-owner.

Q. (2). It is not right in law to annex to a decree for joint possession a condition that a decree for Joint possession should not be executed until and unless a partition has taken place.

Q. (3). The Case in 60 Cal WN 361, was rightly decided in so far as it decided that a decree for joint possession should be passed in the circumstances of that case, but the case was incorrectly decided in so far its it annexed to the decree the condition referred to therein.

7. The appeal be and is hereby dismissed. There will be no order as to the costs of this appeal and of the reference.

Sinha, J.

8. The facts in this case are as follows; The Allahabad Bank Ltd. the defendant appellant is in possession of premises No. 1, Ronaldshay Road, Alipore, It comprises of a residential building with garage, cut-house and a large open ground containing flower bed, tennis lawn and some fruit trees. The total area of the holding is 3 bighas, 13 cottahs and 3 chittacks with a high compound wall on three sides. The lands are in Mouza Alipore which appertains to several Touzis including Touzi No. 6. The plaintiff respondent Subodn Copal Bose purchased Touzi No. 6 at a revenue sale held on 6th January, 1936 and got possession through the Collector en 4th June, 1936. Thereafter, he served a notice upon the defendant appellant and various other parties seeking to annul all tenures, as also other interests, which are not protected under any one of the exceptions detailed in section 37 of the Bengal Land Revenue Sales Act 1859 (Act XI of 1859). According to the plaintiff respondent, the defendant appellant was a trespasser in respect of that portion of the premises which fell within the Touzi No. 6 and the interest of the defendant was an incumbrance liable to annulment. The plaintiff respondent then filed a suit (T. S. No. 16 of 194.8) in the court of the Sub Judge, Allpore asked for joint possession and other reliefs. It is not disputed now that the person under whom the defendant held the land, had taken lease from the proprietors of all the other Touzis exceot that of Touzi No. 6. Therefore, the defendant appellant would have to prove a tenancy in respect of a portion of Touzi Number 6 by operation of law, otherwise it could not claim protection under the provisions of the Land Revs-flue Sales Act mentioned above. The trial court held that the defendant was a tenant by implication and, therefore, its interest was protected. In this view it give the plaintiff a declaration of his title to the extent of 1 anna 3 gandas share of the land but rejected his prayer for joint possession etc., and declared that the interest of the defendant was protected. The plaintiff appealed against this decision and it was held by the Additional District Judge that the defendant was not an implied tenant under Touzi No. 6 and granted to the plaintiff a decree for recovery of joint possession and mesne profits etc. Thereafter, the defendant appealed against this decision in so far as it related to joint possession and mesne profits. The matter came up before a Division Bench of this Court presided over by K.C. Das Gupta, J. The learned Judges discussed the decision of another Division Bench of this Court presided over by R.P. Mookerjee, J. 60 Cal WN 361. It would be observed that this appellant there also was Subodh Gopal Bose, who is the plaintiff respondent here, and indeed it refers to lands in Mouza Alipore and Touzi No. 6. In that case, a decree was made for joint possession but subject to a condition that the plaintiff win not be entitled to enter into occupation or exercise any rights thereon until he obtains a decree or order by a competent court, in a suit or proceeding for partition. Das Gupta, J., seems to have been of the opinion that the principles of justice, equity and good conscience which the Court had to apply, in the absence of any statutory provisions in the matter, support the contention that no decree for joint possession should be made in such circumstances. But, the learned Judge was of the opinion that the condition imposed was not-justified because in reality, the condition made the decree ineffective. The matter was, therefore, referred to a Full Bench and this is how it has come before us. Although the whole appeal was referred to us, Das Gupta J. propounded three questions which are as follows :

'1. Whether one of a body of landlords is entitled to joint possession with a person who is in occupation of a part of the land belonging to him and other persona jointly, as a tenant of such other persons;

2. If the answer to this question be in the affirmative, whether it is right in law to annex a condition that such a decree should not be executed unless a partition has taken place;

3. Was the case reported in 60 Cal WN 361 rightly decided?'

9. At the present moment, the following are the undisputed fads. The lands which are the subject-matter of litigation are in Mouza Alipore which appertains to several Touzis including Touzi No. 6. The defendant appellant has not proved a tenancy in respect thereof. It has been found as a fact that at no time did it pay any rent to the owner of Touzi No. 6. Therefore, it is not a protected interest. If so, 1 do not see why the plaintiff respondent is not entitled to a decree for joint possession. Das Gupta J. has mentioned about the principles of justice, equity and good conscience. The way that this was developed before us was as follows : It was argued that this particular premises contains a large structure and has been In possession of the Bank for a large number of years. It was suggested that the proper course was to file a suit for partition and in such a suit the equities between the parties should be worked out. It may be that this particular premises would not be allotted to the owner of Touzi No. 6 at all, but that he would be given some other portion of the joint lands, of equal value. Perhaps It is from that point of view that a condition was Imposed in the case in 60 cal WN 361 (Supra) by Mookerji, J. In my opinion, it is not necessary to impose such a condition I because no injustice will be done by passing a decree for [joint possession. The way that such a decree is executed I is provided for in Order 21, Rule 35 (2) of the C. P. C. The possession that is given in such a case is merely symbolical. In other words, the party merely gets symbolical possession and not actual possession. For actual possession, the decree-holder will have to file a suit and in this case it will obviously be a suit for partition. Under the circumstances, I cannot see why the plaintiff respondent should be deprived of a decree for joint possession when he is entitled to the same. Further, if he is entitled to a decree for joint possession, then I do not see how a condition can be imposed as has been imposed by Mookerji J. in the case above mentioned. Such a condition is not necessary because at the present moment the decree-holder will not be entitled to actual possession so that the defendant appellant will not be prejudiced and the equities in the case can still be worked out and no doubt shall be worked out in a partition suit which must inevitably follow.

10. For these reasons I agree with the answers given and the order proposed to be made by Baehawat J.

P.H. Mockerjee. J.

11. This Reference arises out of a suit for declaration of title and recovery of joint possession and mesns profits, -- in the alternative for assessment of rent. The suit was decreed in part by the trial court, which gave the plaintiff a declaration of title but refused his claim for joint possession and mesne profits and assessment of rent. On appeal, that decree was modified by the learned Additional District Judge in favour of the plaintiff by decreeing his claim for joint possession too and also mesne profits and, thereupon, the defendant preferred the instant second appeal to this Court.

12. The undisputed facts stand as follows : The plaintiff is the revenue sale purchaser of Touzi No. 6 of the Alipore Collectorate. The suit land forms part of Mouza Alipore, which is a common mouza, appertaining to this Touzi No. 6 and several other Touzls. The defendant (who is the appellant before this Court) holds the suit land under a lessee of the proprietors of the said other Touzis, that is, of all the Touzis, to whcih the said Mouza appertains, excepting the aforesaid Touzi No. 6.

13. The trial court held that the defendant had 'proteced interest' In the disputed land and, upon that view, it refused the plaintiff's prayer for joint possession, mesne profits and assessment of rent. The lower Appellate Court has rejected this defence claim of 'protected interest' and has accepted the plaintiff's case that he has annulled the defendant's interest In the suit land and, upon those findings, has decreed the plaintiff's main case. In full, giving him a decree for title, joint possession and mesne profits.

14. The Referring Bench (Das Gupta and Law, JJ.) agreed with the lower appellate court on its above findings but it was of the view that, even then, the plaintiff could not, as a matter of law, claim a decree for joint possession, as, admittedly, besides the disputed land, there were other Joint lands of all the above Touzis including Touzt No. 6. It was, further, of the view that, If, however, the plaintiff was so entitled, his decree for Joint possession could not be saddled with any condition that it should not be executed until partition, as contended for by the defendant, notwithstanding authority to the contrary (Vide 60 Cal WN 361 at pp. 366 and 367).

15. As, in taking the above view, their Lordships (Das Gupta and Law, JJ.) were differing from the above-cited Bench decision (60 Cal W. N. 361), this Reference was made on the following questions ;

'1. Whether one of a body of landlords (?) (co-owners co-sharers) is entitled to joint possession with a person who is in occupation of a part of the land belonging to him and other persons jointly, as a tenant of such other persons;

2. If the answer to this question be in the affirmative, whether it is right in law to annex a condition that such a decree should not be executed unless a partition has taken place;

3. Was the case reported in 60 Cal WN 361 rightly decided?'

and, under the relevant Rules of this Court (Vide Ch. VII Rule 2 of the Appellate Side Rules), the whole second appeal was referred to the Full Bench.

16. Whether a co-owner is entitled to joint possession depends on the question whether there has been ouster or denial of title or assertion of hostile title, which, in each case, is a question of fact, depending on the materials before the Court. In the instant case, the records make it clear that the defendant denied the plaintiff's title to the suit land by contending that it was outside his purchased Touzi No. 6. By so doing, he set up a hostile title. Thus it is a case of ouster and, under established authorities (Vide 17 Ind App 110 at p. 120 (PC), Bhairon Rai v. Saran Ral, ILR 26 All 588 (F. B.) at pp. 590 and 591, Ananda Chandra Sen v. Parbati Nath Sen, 4 Cal L. J. 198 at pp. 205 and 206, Kanuman Prasad v. Mathura Prasad : AIR1928All472 , see also AIR 1914 Cal 283. : 18 Cal WN 328 and AIR 1918 Cal 19 at p. 20), the plaintiff, under these circumstances, is entitled to a decree for joint possession, there being no question here as to the correctness of the other findings of the learned lower appellate court. Similar was the position in the other reported case (60 Cal WN 361), cited hereinbefore, and there also the decree for joint possession was, obviously, justified. To this extent, I agree with the said reported decision and differ from the referring Bench, when they expressed doubt as to the validity of a decree for joint possession in the instant case.

17. On the further question, however, it seems to me that the referring Bench was right and the earlier decision (60 Cal WN 361 (supra)) must be held to be wrong. A decree for joint possession cannot be made ineffective or incapable of immediate execution by attaching to it a condition that the decree should not be executed until a partition has taken place. For this, there is no warrant in law. It may be that, under the relevant statutory provision for execution of such a decree (Vide 0. 21 R. 35 (2) of the Code of Civil Procedure; See also 67 Cal LJ 39 at p. 40), the effect will be almost the same (vide Jaintl Prasad v. Sheo Sahat, 1939 All L J 375 at p. 376), but that is entirely different from giving a decree for Joint possession and, at the same time, making it Incapable of Immediate execution. The statute runs counter to It as it, obviously contemplates an executable decree for joint possession, although its execution would be by delivery of symbolical possession -- but that also is not wholly without significance or consequence as It arrests the running of time or adverse possession (Vide Kundan Lal v. Gourl Hal, AIR 1928 lah 719) -- and not by delivery of actual possession, the resultant being that no actual possession under such a decree is obtainable in execution until partition. Indeed, one is a term of the decree itself, the other the law of its execution and the two should not be mixed up, however, much the result, may ultimately prove to be the same. To pass a decree for joint possession and to restrain its execution by a term of the same decree until partition really nullifies the decree for Joint possession, as on partition, the possession obtainable is--normally, at least, and in cases like the present, -- separate actual possession. Separate possession contradicts the decree for joint possession and actual possession contradicts the term of Order 21 Rule 35 (2) of the Code, which provides for and governs execution of such a decree. The result, then, would be an anomaly both from the point of view of the fundamental concept of a decree for joint possession and from the point of view of the prescribed law for its execution.

18. I may just add that no injustice is involves In the above view as, as already pointed out, the legal effect would still be that the decree-holder cannot get actual possession and so cannot oust the judgment-debtor from actual possession of the suit land (Vide Jainti Frarad's case, 1939 All LJ 375 (supra)), until partition. Justice and equity thus would be amply protected while law will have its full effect and the Court will have the satisfaction of fully discharging its allotted function of administering justice according to law without raising any conflict between the two, to prevent which, in particular, their Lordships in Subodh Copal's case cited (60 Cal WN 361 (supra), at pp. 366 and 367) suggested the imposition of the condition in question.

19. For the foregoing reasons, I would answer the questions framed and referred by ths learned Referring Judges, in manner, proposed by my Lord Bachwat, J., and answer the Reference itself by dismissing the instant second appeal, as proposed by him, without costs.

G.K. Mitter, J.

20. I agree with the judgment delivered by my Lord Mr. Justice Bachawat and I have nothing to add.

Laik, J.

21. This reference involves the determination of the following questions:-

(1) Whether one of a body of landlords is entitled to joint possession with a person who is in occupation of a part of the land belonging to him and other persons jointly, as a tenant of such other persons;

(2) If the answer to this question be in the affirmative, whether it is right in law to annex a condition that such a decree should not be executed unless a partition has taken place;

(3) Was the case reported in 60 Cal WN at page 361 (Subodh Gopal Bose v. Khairunnessa Bai) rightly decided?

22. The facts shortly are :-

The suit was 'instituted in the Court of the Subordinate Judge, Alipore by the plaintiff respondent as a Revenue sale purchaser for declaration of his title, recovery of khas possession and for mesne profits on the ground that the interest of the defendant appellant has been annulled by a notice. There was an alternative prayer for settlement of fair and equitable rent

23. The disputed property is premises No. 1 Ronald-shay Street, Alipore, a residential building of the Manager of the defendant Bank with a garage, out house, tennis fawn, flower beds and an open ground with fruit trees -

total area being 3 bighas 13 cottahs and 3 chittacks of land. The plaintiff claims -/1/3 Gandas share in the property which according to him appertains to Touzi Mo. 6 of the Alipore Collectorate, which Touzi the plaintiff claims to have auction purchased in a revenue sale under the provisions of the Bengal Land Revenue Sales Act, 1859 (Act XI of 1859).

24. The defences were many in the Court below with which we are not concerned now. The trial Court decreed the suit in part viz., prayer for declaration of title only was granted but other prayers were refused. The plaintiff's First Appeal to the Court of the learned District Judge was allowed viz., joint possession with the defendant was allowed to be recovered and the prayer for mesne profits for a particular period was granted. The defendant Bank's second appeal to this Court was, heard, by K. C. Dasgupta and Law JJ. and their Lordships were of the view that no decree for joint possession should be passed in such circumstances. Their Lordships, however, differed with the view of R.P. Mookherjee and P.K. Sarkar JJ. expressed in 60 Cal WN 361. In that case Moohherjee and Sarkar JJ. granted to the plaintiff a decree for joint possession subject, however, to the condition that the plaintiff would not be entitled to entar into occupation or exercise any right until he obtained a decree or order by a competent Court in a suit or proceeding for partition. In other words although the plaintiff obtained a decree for joint possession he would not, however, be entitled to execute the said decree until he obtained a decree for partition. Das Gupta and Law JJ. could not agree that a decree for joint possession could be granted far less with the said rider or condition attached to it. Hence their Lordships made this reference for the determination of the points stated above.

25. In this reference, WR are to see in the first place whether a decree for joint possession can be passed and in the second place, whether to such a decree, a condition can be attached.

26. On principle, I do not find any reason why a decree for joint possession cannot be granted. A decree for joint possession is not unknown in law and as a matter of fact, such decrees were granted by the Courts even from before the Code of Civil Procedure, 1908 came into force. The present Code of 1908 recognises the principle for passing a decree for joint possession and that will appear from the provisions of Order. 21 Rule 35 of the Code. The Privy Council decision in 17 Ind App. 110 (FC), relied upon by Mr. Mukherjee appearing on behalf of the appellant Bank is distinguishable on the face of it. True, in that case, their Lordships refused to pass a decree for joint possession but that was refused on the principles of justice, equity and good conscience, as the circumstances of that case did not warrant giving a decree for joint possession. This distinction was made by the Allahabad High Court in the Full Bench case in : AIR1928All472 , where it was held that a decree for joint possession could be granted to one co-sharer against another co-sharer.

27. In granting a decree for joint possession, a Court is, however required to consider the facts and circumstances of the case and the rights and interasls of the parties before it. The Court should consider whether the plaintiff has been able to made out a case of ouster, if the Court finds that there has been ouster of the plaintiff from the land in suit, the Court shall, in that event, grant a decree for joint possession in favour of the plaintiff. In Watson's case, 17 Ind App 110 (PC), referred to above, all that has been laid down by their Lordships of the judicial Committee, is that it is discretionary with the Court to grant or not to grant a decree for joint possession. But the exercise of that discretion, in my opinion, should not be made dependent upon the consideration of matters not connected with the rights of the parties inter se and also upon the fact that the plaintiff was not in actual possession. In the present case, I do not think that the plaintiff should be refused a decree far joint possession, for, the plaintiff has been able to prove that the defendant has been in possession of the land in suit as a tenant under the other co-owners is dental of the plaintiff's title. In order to stop the running of time against the plaintiff, a decree for joint possession should be granted to him.

28. Next, I come to the second point, namely, whether a condition can be attached to the decree for joint possession. In other words, whether it can be directed that the plaintiff will not be able to execute the decree for joint possession till he obtains a decree for partition. It was contended on behalf of the appellant Bank that a decree for joint possession should always be made subject to such a condition. In support of that contention the said decision in Subodh Gopal Dose's case 60 Cal WN 361 (supra) was relied upon. In that case, Mookherjee and Sarkar JJ. passed the decree for joint possession in favour of the plaintiff but made the same subject to the conditions, namely, that the plaintiff would not be entitled to enter into occupation of the property in question until he obtained a decree for partition in a separate suit or proceeding. The reason for which the said condition was annexed to the said decree was that it was not known which portion of the property in suit would be allotted in favour of the plaintiff as the revenue sale purchaser of Touzi No. 6. Mr. Mitter appearing on behalf of the respondent submitted that if the condition is annexed to a decree for joint possession it would lead to complications and multiplicity of proceedings. Mr. Witter further submitted that a decree for joint possession simpliciter would stop adverse possession from running against the decree-holder. In support of his contention Mr. Mittsr relied upon the said Full Bench case of Hanuman Prajad : AIR1928All472 . As already stated, it was laid down there that a decree for joint possession could be passed but the question of annexing such a condition was not thought of in that case. If we turn to the provisions of Order 21 Rule 35 (2), we find the manner In which the decree for joint possession can be executed. Law definitely recognizes the passing of such decree for joint possession without any such condition being annexed thereto. A Court of law is to see whether a decree, which is passed is in accordance with law, can be executed. As soon as it finds that a decree for joint possession simpliciter is recognized by law and can be executed under the rules of procedure, there can be no difficulty in the way of the Court in passing such a decree.

29. One of the objects of passing a decree for joint possession seems to be to stop the running of time of adverse possession as against the decree-holders. The decree-holder also gets the benefit of realising the profits of the property concerned.

30. If such a condition is annexed, it leads to the result that the decree-holder, although he gets a decree for joint possession, he will be debarred from executing the decree for joint possession until he gets a decree for partition in a separate suit or proceeding, In my opinion to annex such a condition is to deprive the decree-holder of his legal right to which he is entitled under the law. It is for the Court either to grant a decree for joint possession to the plaintiff or to refuse to grant the same, with reference to the facts and circumstances of a particular case. But the moment the Court grants decree for joint possession, it would not be right to make it practically ineffective by annexing such a condition. In that view of the matter, I fully endorse the view of Das Gupta and Law JJ, namely, that the decree would be made ineffective by appending thereto such condition and that there was no justification for the Court to pass the decree subject to that condition.

31. In my view it is not possible to give a generalanswer to question No. I. I agree with the answers givenby Bachawat J. to questions Nos. 2 and 3 and I concurthat the appeal be dismissed without costs.


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