Skip to content


Radha Proshad Wasti and ors. Vs. Esuf and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal414
AppellantRadha Proshad Wasti and ors.
RespondentEsuf and ors.
Cases Referred(sic) of Hulodhur Sen v. Gooroodoss Roy
Excerpt:
ejectment - co-sharers--trespassers--co-sharer's bight. - .....possibly obtain redress except by a (sic)artition.2. their case is, that they are the twelve annas shareholders of a certain (sic) taluq, the remaining four annas share belonging to the defendant no. 4. (sic) say that the collector of noakhali unjustly dispossessed them of this (sic) ; whereupon they and the defendant no. 4 brought a suit against him (sic) section 15, act xiv of 1859, and obtained a decree for possession.3. (sic) (sic)anthile, the principal defendants, nos. 1 and 2, had been let into (sic) through the collector, of four kanis of land within the taluq ; and as (sic) or himself was a trespasser, the plaintiffs say that these defendants are (sic) they, therefore, bring this suit to obtain khas possession of the (sic) the land to the extent of their twelve annas share.....
Judgment:

Richard Garth, C.J.

1. In this case the District Judge has, unfortunately, made a nistake. According to the view which he has taken of the law, the plaintiffs, (sic)however just their claim may be, cannot possibly obtain redress except by a (sic)artition.

2. Their case is, that they are the twelve annas shareholders of a certain (sic) taluq, the remaining four annas share belonging to the defendant No. 4. (sic) say that the Collector of Noakhali unjustly dispossessed them of this (sic) ; whereupon they and the defendant No. 4 brought a suit against him (sic) Section 15, Act XIV of 1859, and obtained a decree for possession.

3. (sic) (sic)anthile, the principal defendants, Nos. 1 and 2, had been let into (sic) through the Collector, of four kanis of land within the taluq ; and as (sic) or himself was a trespasser, the plaintiffs say that these defendants are (sic) They, therefore, bring this suit to obtain khas possession of the (sic) the land to the extent of their twelve annas share jointly with the (sic) also mesne profits for the time daring which the latter have held (sic) share unlawfully.

4. (sic) principal defendants (sic) that they were rightfully occupying (sic) before the Collector book possession of the taluq ; and the defendant No. 4 supports their case, and desires to retain them upon the property.

5. The Munsif found entirely in favor of the plaintiffs, and gave them a decree for ijmali possession of the land to the extent of their twelve annas share, with mesne profits and costs.

6. The District Judge has taken a different view. He has dismissed the suit, upon the ground that, even if the plaintiffs' case be well founded as to the principal defendants having been let into possession by the Collector, they cannot bring a suit of this kind without joining their co-sharer as a plaintiff ; which means, of course, that they cannot sue at all, because their co-sharer, the defendant No. 4, is adverse to the suit.

7. If the Judge were right in this, one shareholder out of many might always set his co-sharers at defiance, by introducing objectionable persons upon the joint property against the wishes of his co-sharers ; and the latter would have no remedy, except by obtaining a partition.

8. We know of no authority which justifies such a view of the law ; and it seems to us, that the District Judge has quite misunderstood the meaning of the cases to which he refers.

9. The plaintiffs' case is, that the principal defendants are trespassers, because they were introduced upon the land by the Collector, who was himself a trespasser; and if the plaintiff's are right in this, and if they have not since recognized the defendants as their tenants, it is clear, that as against the plaintiffs they are trespassers ; and no consent to their occupation by the other defendant, No. 4, will make them any other than trespassers as regards the plaintiffs' twelve annas share.

10. If the defendant No. 4 has given the other defendants permission to occupy the land to the extent of her share, the decree to which the plaintiffs are entitled, assuming that they prove their case, is that which they ask for in the plaint, and which the Munsif has given them,-that is to say, a decree for khas possession of the four kanis jointly with the defendants to extent of their twelve annas share.

11. A similar decree was made in favor of the plaintiffs by the High Court in the case to which the Judge refers : Hulodhur Sen v. Gooroodoss Roy (20 V. R., 126). The other case which he cites, Balaji Baikaji v. Gopal Bin Roy (sic) Kuli (I. L. R., 3 Bom., 23), relates to a tenant, not a trespasser.

12. The view which the Munsif has taken of the law appears to us perfect correct.

13. When a tenant has been put into possession of ijmali property with(sic) consent of all the sharers, or what is the same thing, has been placed (sic) the managing shareholder, who has authority to act for the rest, (sic) more of the co-sharers can turn the tenant out without the cons (sic) others. But no man has a right to intrude upon ijmali property (sic) will of the co-sharers or of any of them. If he does so, he (sic) without notice, either altogether, if all the co-sharers join (sic) partially, if only some of (sic) co-sharers wish to eject him (sic) means by which such a partial ejt(sic)ment is effected, is by give (sic) possession of their shares jointly (sic) the intruder, as (sic) of Hulodhur Sen v. Gooroodoss Roy (20 W. R., 126), per (sic)ndgment of the Lower Appellate Court must, therefore, be set aside ; (sic) case must go back to that Court for retrial in accordance with the (sic) law which we have above explained.

14. (sic) appellants will have their costs in this Court; and the costs in the Court will abide the result.

15. Appeals Nos. 2148 and 2149 will be governed by this decision.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //