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Calcutta High Court · body

1914 DIGILAW 21 (CAL)

Gajadhar Ahir v. Munshi Bhikari Lal

1914-01-19

body1914
JUDGMENT 1. This was a suit for recovery of possession of a plot of land to the extent of an 8 annas share. The Plaintiff appears to be the proprietor of the land to the extent of 8 annas and Defendants Nos. 5 and 6 to be proprietors to the extent of the other 8 annas. Defendants Nos. 1 to 3 claim to be tenants on the land, and they are supported by Defendants Nos. 5 and 6. The Munsif gave the Plaintiff a decree for khas possession to the extent of an 8 annas share jointly with Defendants Nos. 1 to 3, but not so as to entitle the Plaintiff to remove certain cattle troughs and pegs fixed by Defendants Nos. 1 to 3 thereon. The Plaintiff was not satisfied with this success, and appealed to the Subordinate Judge, who held that the title of Defendants Nos. 1 to 3 had not been proved and that the Plaintiff should recover possession of a moiety share in the disputed land jointly with Defendants Nos. 5 and 6 after removal of the Nads and pegs. Defendants Nos. 1 to 3 have appealed to this Court. On their behalf it is first urged that as the Plaintiff asked in the alternative for joint possession with Defendants Nos. 1 to 3 or with Defendants Nos. 5 and 6 and obtained a decree for joint possession with Defendants Nos. 1 to 3, he could not subsequently appeal for joint possession with Defendants Nos. 5 and 6. In the first place, it is clear that the Plaintiff only asked for joint possession with Defendants No. 1 to 3, if joint possession with Defendants Nos. 5 and 6 could not be granted. But it appears to us that that matter does not really arise in this case. All that the Plaintiff could ask for was joint possession of an 8 annas share. He could not in this suit ask the Court to decide who was entitled to possession of the other 8 annas share of the land, with which he had no concern. Secondly, it is argued that as Defendants Nos. 1 to 3 had been recognized as tenants by the co-sharer landlords Nos. 5 and 6, they could not be ejected from the whole of the land, nor could the cattle-troughs and pegs be removed. Secondly, it is argued that as Defendants Nos. 1 to 3 had been recognized as tenants by the co-sharer landlords Nos. 5 and 6, they could not be ejected from the whole of the land, nor could the cattle-troughs and pegs be removed. We have not been shown any authority for holding that a person entitled to an undivided half share of the land can sue to eject anybody from the whole of it. 2. This contention therefore must succeed. Accordingly, the decree of the lower Appellate Court will be modified. The Plaintiff will be entitled to a decree against all the Defendants for recovery of joint possession of an 8 annas share of the disputed property. He will be entitled to enforce this right by a suit for partition, if he is not satisfied with the delivery of possession of an undivided half share. Until the land is partitioned, the cattle-troughs and pegs will not be removed. The Appeal will be decreed in these terms.