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Debendra Nath Sarkar Vs. Bindhubala Dasi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.125
AppellantDebendra Nath Sarkar
RespondentBindhubala Dasi and ors.
Cases ReferredRajkrishna v. Muhtaram Das
Excerpt:
specific relief act (i of 1877), section 9 - persons dispossessed, whether must he co-plaintiffs--possession, act of--nature of property--grazing cattle whether act of possession. - .....the plaintiffs and their predecessors have for many years past exercised, with reference to the land, acts which might properly be treated as acts of ownership. he has pointed out that in 1882 the predecessors of the plaintiffs took trees standing on the disputed property, that later on in 1896, they took away cart loads of bricks and also another tree, and in 1903, 1906 and 1908 they sold under-shrubs standing on this piece of land. it is perfectly true that, as pointed out by this court in the case of rajkrishna v. muhtaram das 7 ind. cas. 700 : 12 c.l.j. 605 whether a particular act may be treated as an act of possession depends upon the nature of the property and the special circumstances of the case. in the case before us, in view of the condition of the property, the munsif was.....
Judgment:

1. In this case we are invited to set aside the decree made under Section 9 of the Specific Relief Act The subject-matter of the litigation appears to be a house which was at one time the property of one Mr. Cheap and subsequently appears to have been more or less abandoned. The case for the plaintiffs is that they, along with their co-sharers who are made pro forma defendants, were in possession of the disputed property till they were dispossessed by the first defendant on the 6th November 1909. They alleged that they could rot induce their co-sharers to join with them as plaintiffs and were consequently obliged to place them on the record as pro forma defendants. They ask for recovery of possession on the ground that the first defendant ought not to interfere with their possession. The learned Munsif, in an exhaustive judgment, has found that the plaintiffs were in possession as stated by them and that the first defendant was not in possession of the property till he raised the pagar on the 6th November 1909. In this view, he has made a decree in favour of the plaintiffs and directed the property to be held by them on their own behalf and on behalf of their co-sharers pro forma defendants.

2. On behalf of the first defendant, this decree has been assailed substantially on two grounds, namely, first, that the suit has not been properly framed and, secondly, that upon the facts found by the Court below, the plaintiffs have not such judicial possession of the property as would entitle them to ask the Court to restore them to possession. In our opinion there is no substance in either of these contentions.

3. In so far as the first point is concerned, it is plain that the suit was properly framed, The learned Vakil for the first defendant urges that as the plaintiffs were admittedly not in exclusive possession of the property, but, according to their own case, held joint possession along with their co-sharers, they ought not to be placed in exclusive possession. It is further argued that a suit of this description could not be maintained, unless all the persons in joint possession, who are alleged to have been dispossessed, joined as co-plaintiffs in the institution of the suit. This position is, in our opinion, clearly unsustainable. The policy which underlies Section 9 of the Specific Belief Act is to discourage persons from taking the law into their own hands and entering by force upon the property in the possession of other persons. The law will not suffer a person to be his own judge and will not allow him to take possession of the land, unless he has recovered it by legal means. If the first defendant, therefore, is a person who has wrongfully entered upon the land, it is open to any one of the persons dispossessed, to maintain an action to eject him, and it is no substantial grievance that all the persons whom he dispossessed have not been joined as plaintiffs in maintaining the action. He is sufficiently protected if the persons dispossessed by him are on the record either as plaintiffs or as pro forma defendants. If the contrary view were maintained, a suit of this description might easily be defeated if the dispossesser could win over one of the persons dispossessed to his side. We must, therefore, overrule the first point urged on behalf of the petitioner.

4. In so far as the second point is concerned, there is obviously no substance in it. The learned Munsif has found that the plaintiffs and their predecessors have for many years past exercised, with reference to the land, acts which might properly be treated as acts of ownership. He has pointed out that in 1882 the predecessors of the plaintiffs took trees standing on the disputed property, that later on in 1896, they took away cart loads of bricks and also another tree, and in 1903, 1906 and 1908 they sold under-shrubs standing on this piece of land. It is perfectly true that, as pointed out by this Court in the case of Rajkrishna v. Muhtaram Das 7 Ind. Cas. 700 : 12 C.L.J. 605 whether a particular act may be treated as an act of possession depends upon the nature of the property and the special circumstances of the case. In the case before us, in view of the condition of the property, the Munsif was quite fight in holding that the acts mentioned were acts of possession. On the other hand, the only act upon which the first defendant can rely is that the cattle of his predecessors grazed occasionally on the disputed property. As the Court below has pointed out, that by itself is not sufficient to show that the defendant or his predecessor was in possession of the property. In this country especially in the villages, persons are often allowed to graze their cattle on the property of others. It would be impossible, in these circumstances, to hold that the plaintiffs were not, and that the defendant was, in possession.

5. The Rule is, therefore, discharged with costs. We assess the hearing fee at two gold mohurs.


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