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Dwarka Nath Rai and ors. Vs. Kali Chunder Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal75
AppellantDwarka Nath Rai and ors.
RespondentKali Chunder Rai and ors.
Cases Referred and Reasut Hossein v. Chorwar Sing I.L.R.
Excerpt:
co-sharers - notice to quit--co-sharers, suit by--withdrawal of one co-sharer from the suit--ejectment. - .....one of the defendants, [plaintiff's?] saroda sundari gupta, obtained leave to withdraw from the appeal, [suit?] and was accordingly made a defendant by the other plaintiffs.3. the subordinate judge in appeal has found that, although notice was served by all the landlords, still, inasmuch as one of them was not a plaintiff in the present suit, it must fail. the authorities cited to us--radha proshad wasti v. esuf i.l.r. 7 cal. 414 and reasut hossein v. chorwar sing i.l.r. 7 cal. 470 do not support this view of the law. it seems rather that the plaintiffs now on the record are entitled to ask for a decree to get possession as against the defendants of their share of the estate provided that they succeed in other respects. as has been pointed out already by this court, if such a suit.....
Judgment:

Prinsep and Trevelyan, JJ.

1. This is a suit originally brought by five persons claiming as proprietors of the land held by the defendants, to eject them on service of notice.

2. In the course of the proceedings in the first Court, one of the defendants, [plaintiff's?] Saroda Sundari Gupta, obtained leave to withdraw from the appeal, [suit?] and was accordingly made a defendant by the other plaintiffs.

3. The Subordinate Judge in appeal has found that, although notice was served by all the landlords, still, inasmuch as one of them was not a plaintiff in the present suit, it must fail. The authorities cited to us--Radha Proshad Wasti v. Esuf I.L.R. 7 Cal. 414 and Reasut Hossein v. Chorwar Sing I.L.R. 7 Cal. 470 do not support this view of the law. It seems rather that the plaintiffs now on the record are entitled to ask for a decree to get possession as against the defendants of their share of the estate provided that they succeed in other respects. As has been pointed out already by this Court, if such a suit were not possible, it would be in the power of the proprietor of a very small portion of a property to prevent the other proprietors from ever asking for their rights.

4. We think, therefore, that the suit should proceed.


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