P.N. Mookerjee, J.
1. This is a Letters Patent appeal against the judgment of our learned brother, Bijayesh Mukharji, J. The appellant before us was the contesting defendant in the suit, which was brought by the plaintiff-respondent for declaration of title and recovery of joint possession along with pro forma defendant No. 3.
2. The suit was dismissed by the two Courts below, but, in second appeal, this Court decreed the plaintiff's suit.
3. The whole controversy between the parties rests on the effect of a Memorandum on the rights of the parties under Section 53A of the Transfer of Property Act. That Memorandum, as we read the same, records the fact of taking of possession by the parties concerned in pursuance of an exchange or agreement of exchange, made by mem in respect of their respective properties in Pakistan and India. It is the defendant's case that, in view of the said Memorandum, he is entitled to have his possession protected under Section 53A of the Transfer of Property Act. The Memorandum has been set out in the judgment of our learned brother on a translation from the original, which is in Bengali. The translation appears to be a proper translation and, proceeding upon the same, we read the Memorandum as only a record of the fact of taking of possession by the respective parties in pursuance of an agreement for exchange. In our opinion, the said Memorandum cannot be treated either as a contract of exchange or as a deed of exchange, which, on registration, may pass title to the parties concerned. In this view, we hold that our learned brother was justified in rejecting the defence contention on this point and in decreeing the plaintiff's claim in respect of the share, claimed by him.
4. The decree, however, that was ultimately passed by our learned brother, was a decree for recovery of possession after ousting the contesting defendant. It appears from the record that, on the plaintiffs owncase, he was only a co-sharer, holding a particular share in the disputed property, the remaining share, belonging to the pro forma defendant No. 3. It appears further that the said pro forma defendant No. 3 died during the pendency of the appeal in this Court and the plaintiff's second appeal abated, so far as he was concerned. In the circumstances, our learned brother was right in holding that there could not be a decree for joint possession with pro forma defendant No. 3. At the same time, however, that would not entitle the plaintiff to a decree for possession against the contesting defendant after ousting him from the disputed property. The plaintiff can only get a decree for possession to the extent of his share, and, accordingly, although the plaintiffs suit will be decreed, it will be decreed only to the extent of declaring his title to the share, claimed by him in the disputed property, and granting him a decree for joint possession along with the contesting defendant, however much he may be a trespasser in the disputed land. : AIR1929Cal28 , affirmed in : AIR1935Cal646 ).
5. We would, accordingly, allow this appeal only to this extent that the decree, passed by our learned brother Bijayesh Mukharji, J., will be modified by converting the decree for possession against the contesting defendant, who is the appellant before us, after ousting him from the disputed property, into a decree for joint possession of the disputed property along with the said contesting defendant.
6. There will be no order as to costs in this appeal.
Amiya Kumar Mookerji, J.
7. I agree.