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Mohendra Nath Pal Vs. Sheikh NasiruddIn Mahammad and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.887
AppellantMohendra Nath Pal
RespondentSheikh NasiruddIn Mahammad and ors.
Excerpt:
decree, construction of - suit for khas possession by co-sharer, maintainability of. - .....the 52 bighas, the plaintiff and his co-sharers were resisted. thereupon, a suit was brought for khas possession. that was decreed and the plaintiff was put into khas possession of the whole of the 52 bighas, except plot no. 11 which is the subject-matter of the present case. then, not having obtained actual possession of plot no. 11, the plaintiff brought a suit on the footing of an eight-anna share-holder to recover khas possession of the land. the suit was dismissed by the courts below; but this court decreed it on appeal in this manner, namely, that it declared the plaintiff's right to an eight-anna share of plot no. 11 and he was directed to take khas possession thereof, that is of 8-annas share. the view that has been attempted to be put forward is this; that 'thereof' means the.....
Judgment:

Fletcher, J.

1. This is an appeal by the decree-holder against the decision of the learned District Judge of Midnapore, dated the 11th May 1917, reversing the decision of the Munsif of the same place. The decree-holder was the plaintiff in the suit. He and his co-sharers had purchased in execution of a rent decree 52 Bighas of land. In attempting to take possession of the 52 bighas, the plaintiff and his co-sharers were resisted. Thereupon, a suit was brought for khas possession. That was decreed and the plaintiff was put into khas possession of the whole of the 52 bighas, except plot No. 11 which is the subject-matter of the present case. Then, not having obtained actual possession of plot No. 11, the plaintiff brought a suit on the footing of an eight-anna share-holder to recover khas possession of the land. The suit was dismissed by the Courts below; but this Court decreed it on appeal in this manner, namely, that it declared the plaintiff's right to an eight-anna share of plot No. 11 and he was directed to take khas possession thereof, that is of 8-annas share. The view that has been attempted to be put forward is this; that 'thereof' means the whole land and that the decree for khas possession made by this Court was not made on the basis of the plaintiff's 8 annas share. That clearly won't do. The proper construction of the judgment and decree of this Court in the suit out of which this execution arises is that a decree for joint possession was given to the plaintiff and, having got joint possession, a partition suit would lie. It is quite clear that the learned District Judge was right when he said that the plaintiff was entitled only to possession of an eight-anna share and that, if his co-sharers or the judgment-debtors were in possession of the other half share, he was not entitled to evict the persons in actual possession of that share but his only course was, if he wanted exclusive possession of his eight-annas share, to ask for a partition. The present appeal fails and must be dismissed with cost, one gold mohur.

Syed Shamsul Huda, J.

2. I agree.


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