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Sudarshan Das Vs. Biraja Sundari Dasi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.338
AppellantSudarshan Das
RespondentBiraja Sundari Dasi and ors.
Cases ReferredKumudini Mazurndar v. Rasik Lal Mazumdar
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 95 - execution--purchase of undivided share--symbolical delivery to purchaser of specific plot in judgment-debtor's possession--bights of purchaser--use and occupation, claim for damages for. - .....he obtained symbolical possession of certain specified portions of the property which were in the exclusive possession of his judgment-debtors under some arrangement between them and their co-sharers, which took place more than twenty years before the sale. the plaintiff the purchased the right of the execution purchaser and brought the present suit against the mortgagor, the principal defendant, who was in possession of the particular portions of the property. the court below held that the plaintiff had purchased only an undivided 2/3rd share and was not entitled to more than of the rent as compensation. plaintiff appeals to this court and relies upon the case of kumudini mazurndar v. rasik lal mazumdar 11 c.w.n. 517 where it was held that 'when by private arrangement amongst.....
Judgment:

1. The plaintiff-appellant brought the suit out of which this appeal arises for assessment of rent of certain specific portions of buildings against the persons in possession of the same, and also for recovery of damages for the use and occupation thereof in respect of the period prior to the suit. It appears that the plaintiff's vendor purchased 2/3rd share of certain property at sales held in execution of mortgage decrees. Although he purchased an undivided 2/3rd share, he obtained symbolical possession of certain specified portions of the property which were in the exclusive possession of his judgment-debtors under some arrangement between them and their co-sharers, which took place more than twenty years before the sale. The plaintiff the purchased the right of the execution purchaser and brought the present suit against the mortgagor, the principal defendant, who was in possession of the particular portions of the property. The Court below held that the plaintiff had purchased only an undivided 2/3rd share and was not entitled to more than of the rent as compensation. Plaintiff appeals to this Court and relies upon the case of Kumudini Mazurndar v. Rasik Lal Mazumdar 11 C.W.N. 517 where it was held that 'When by private arrangement amongst co-sharers, erne of them is in exclusive possession of a certain portion of the ijmali land, a purchaser of the right, title and interest of the latter is entitled to be placed in the same position as his vendor,' and that such arrangement amongst co-sharers continues to be a good and binding arrangement until the co-sharers themselves agree to give it up and come to some other arrangement or until any one of the co-sharers demands a partition of the entire joint lands either in Court or out of Court.' It is unnecessary to discuss the principle there laid down. In the present case the execution purchaser is found to have obtained symbolical possession of specified portions of the property which were in the exclusive possession of the judgment-debtor under process of the Court, and the symbolical possession thus obtained amounted to actual possession as against the judgment-debtor. Here, the very same judgment-debtor is the contesting defendant in the suit; and she cannot raise the objection that the plaintiff or his vendor was not entitled to possession of any specific portions of the property which were in his exclusive possession. The plaintiff purchased all the rights and interest of the execution purchaser and, if the execution purchaser was entitled to possession of the specific portions of the property which were in the exclusive possession of the judgment-debtor, (the present contesting defendant), we think the plaintiff is entitled to get the entire compensation in respect of the property in his possession from the defendant. The result is that the decree of the lower Appellate Court is set aside and that of the Court of first instance restored with costs.


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