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Raja Sashishekhareswar Rey Bahadur Vs. Rani Hemangini Debi and ors. and Rani Kamal Kumari Debi and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.689
AppellantRaja Sashishekhareswar Rey Bahadur
RespondentRani Hemangini Debi and ors. and Rani Kamal Kumari Debi and anr.
Excerpt:
co-sharers, rights of - co-sharer in exclusive possession--suit for possession by other co-sharer, maintainability of. - .....in denial of the plaintiff's title. by his written statement he claimed the major portion of the land as appertaining to another touzi no. 208 of which he was the sole owner. in that state of the pleadings, in my opinion, it was open to the plaintiff to sue the defendant no. 1 in ejectment. it has been suggested that the learned judge has not found that the defendant no. 1 excluded the plaintiffs from those lands and denied their title. an examination of the judgment, however, will show that the learned subordinate judge intended to find an ouster of the plaintiffs by defendant no. 1. he was referred to reported oases on the subject and he distinguished those cases from the case he had before him on the ground that in those oases there was no question of ouster or exclusive possession.....
Judgment:

1. The plaintiff and the principal defendant No. 1 are co-sharers in certain lands. The lands are described in two schedules attached to the plaint. The land entered in Schedule (ka) is described as' appertaining to the demarcated land of Touzi No. 1576 and the land in Schedule (kha) is described as appertaining to Touzi No. 218. In the former estate the share of the plaintiffs is 15 annas 8 gandas 1 kara 1 kranti and in the latter the share of the plaintiffs is one-sixth. In Estate No. 1576 the remaining share belongs to defendant No. 1 and in Estate No. 218 defendant No. 1 has a two-third share. The plaintiffs sued to recover joint possession with the defendant No. 1 of the lands of these two schedules on the footing that they had been ousted therefrom by defendant No. 1. There is abundant authority on the principle governing oases of this kind between co-sharers. The difficulty arises in the application of the principle to the facts of particular cases. In the present case it is clear that the plaintiffs by their plaint complained of ouster by defendant No. 1. The plaintiffs say that the defendant No. 1 has no right to hold exclusive possession of the said lands owned and held by the plaintiffs jointly and as appertaining to these demarcated shares by ousting the plaintiffs therefrom. It seems to me again that by his written statement defendant No. 1 in effect admitted that his possession of the lands in dispute had been possession in exclusion of the plaintiffs and in denial of the plaintiff's title. By his written statement he claimed the major portion of the land as appertaining to another Touzi No. 208 of which he was the sole owner. In that state of the pleadings, in my opinion, it was open to the plaintiff to sue the defendant No. 1 in ejectment. It has been suggested that the learned Judge has not found that the defendant No. 1 excluded the plaintiffs from those lands and denied their title. An examination of the judgment, however, will show that the learned Subordinate Judge intended to find an ouster of the plaintiffs by defendant No. 1. He was referred to reported oases on the subject and he distinguished those cases from the case he had before him on the ground that in those oases there was no question of ouster or exclusive possession on the part of the defendant and he came to the conclusion that there was absolutely no analogy between those oases and the present. In my opinion, the ouster necessary to support such a suit as this, has been sufficiently pleaded and found. The appeal should accordingly be dismissed with costs.

Beachcroft, J.

2. I agree.


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