JUDGMENT : Misra, J. - Defendants 1, 3 and 4 are the Appellants. Plaintiff's suit was for declaration of title and recovery of possession of Ga schedule lands, or, in the alternative, for partition of Kha schedule lands. Kha schedule lands constitute 31. 82 acres village Dahijira in the district of Sundergarh. Ga schedule lands are 16.92 acres forming part of the Kha schedule lands. One Thutuku Gram was the owner of the Kha schedule lands. He was a Christian and died leaving two sons behind-Kalal Gram and Mahindar Oram (Defendant No. 2). Kalal Gram left for Assam sometime before 1930 and is since unheard of and civilly dead. Defendant No. 1 is his widow. Defendant No. 3 is the husband of Defendant No. 1's sister and Defendant No. 4 is the all son-in-law of Defendant No. 1. Defendant no. 2 went to Assam and returned back in 1947. Before going to Assam, Defendant No. 2 surrendered Kha schedule lands to the Gountia who settled the same on the Plaintiff. In 1944, Defendant No. 1 convened a Punchayati and the Plaintiff gave up half of Kha schedule lands in her favour. Plaintiff came into possession of Ga schedule lands after the Punchayat's decision. In paragraph 11 of the complaint Plaintiff claimed title by adverse possession to the half share of Defendant No. 2 in Kha schedule lands. His case was put as follows: The right, title and interest in the half share of Defendant No. 2 in the holding No. 92 has thus been acquired by prescription and such right cannot be subsequently defeated by dispossession in 1947 by the Defendant No. 2 whose title had already been extinguished by continuous possession of the Plaintiff over 12 years. The Defendants are no better than trespassers in respect of the half of the holding in question. Thus it is clear that in the alternative case for partition of Kha schedule lands, Plaintiff did not advance any claim against the right, title and interest of the half share of Defendant No. 1. It was confined only against the interest of Defendant No. 2. 2. All the Defendants advanced a common plea. Their case was that Defendant No. 2, before going to Assam, gave Kha schedule lands on Bhag to the Plaintiff.
It was confined only against the interest of Defendant No. 2. 2. All the Defendants advanced a common plea. Their case was that Defendant No. 2, before going to Assam, gave Kha schedule lands on Bhag to the Plaintiff. There was no surrender of Kha schedule lands by Defendant No. 2 and no settlement by the Gountia of those lands on the Plaintiff. Defendant No. 1 was getting Rajbhag of her eight annas share an through. 3. Both the courts below concurrently rejected Plaintiff's story of surrender settlement by Punchayat in 1944 and allotment of Ga schedule lands to his share. The learned trial court discarded the defence story of Bhag-tenancy and decreed the Plaintiff's suit for partition on the finding that the Plaintiff acquired title by adverse possession in respect of the undivided eight annas share of Defendant No. 2. The learned lower Appellate court reversed the finding of the learned Munsif regarding Bhag-tenancy and held that the Plaintiff was in possession of the disputed lands as a Bhag-tenant all through. He, however, dismissed the appeal on the finding that Defendant No. 2 did not file the appeal against the ad verse decree against him that the Plaintiff acquired title by prescription in respect of his undivided eight annas share and that the decree of the learned trial court could not be reversed on the basis of the appeal filed by Defendants 1, 3 and 4, though Defendant No. 4 was a party-Respondent to the appeal. 4. The finding of the lower Appellate court that the Plaintiff was in possession of the disputed lands on the basis of Bhag-tenancy was not disputed before me on either side. Mr Mohapatra contended that the view of the learned lower Appellate court that the appeal before him was incompetent is untenanble in law. He relied upon Md. Asgar Ali v. Narayan Mohapatra. This decision is of no assistance on the question in issue. The proposition of law is well settled as enunciated in this decision that one of the cosharers can bring a suit for ejectment against a rank trespasser on behalf of the entire body of co sharers or co-owners. All the co-owners need not be parties to such ejectment suit. The decree of the court however would make it clear that it would ensure for the benefit of the other cosharers. 5.
All the co-owners need not be parties to such ejectment suit. The decree of the court however would make it clear that it would ensure for the benefit of the other cosharers. 5. The position so far as this case is concerned, is however completely different. It is not disputed that Defendants 1 and 2 are co-owners in respect of the disputed lands. They are Christians and the question of their constituting a coparcenery does not arise. In the alternative case for partition, the Plaintiff claimed title by prescription with regard to the undivided half share of Defendant No. 2 alone. The litigation might have been contested by Defendant No. 1 on behalf of Defendant No. 2 without the latter being a party. Defendant No. 2 was a party and contested the litigation. The question of one cosharers representing another cosharer, either as Plaintiff or Defendant, does not arise in this case. Whether any part of Plaintiff's case is accepted or not, no cloud was thrown on the right, title and interest of Defendant No. 1. The trial court's finding that the Plaintiff acquired title by prescription with regard to the undivided eight annas interest of Defendant No. 2, whether right or wrong (possibly it was wrong), is final so far as Defendant No. 2's interest is concerned, and when Defendant No. 2 being a party to the litigation did not contest that finding, the question of Defendant No. 1 contesting it on behalf of Defendant No. 2 does not at all aries. In course of argument, the following illustration was put to Mr. Mohapatra: Supposing in the written statement Defendant No. 2 would have admitted that the Plaintiff acquired title by adverse possession with regard to his own undivided eight annas interest, could Defendant No. 1 resist a decree in favour of the Plaintiff on the basis of such admission? The only obvious answer to such a question is that Defendant No. 1 cannot resist. Mr. Mohapatra could not furnish any satisfactory reply. Merely by virtue of the fact that the co sharers are in joint possession of the Kha schedule lands by the decree of the trial court, the interest of Defendant No. 1 was not in any way adversely affected. Defendant No. 1 was in joint possession with Defendant No. 2 and the latter could maintain a suit for partition.
Merely by virtue of the fact that the co sharers are in joint possession of the Kha schedule lands by the decree of the trial court, the interest of Defendant No. 1 was not in any way adversely affected. Defendant No. 1 was in joint possession with Defendant No. 2 and the latter could maintain a suit for partition. The interest of Defendant No. 2 having been acquired by the Plaintiff, the Plaintiff's suit for partition by metes and bounds is maintainable. 6. Mr. Mohapatra relied upon Ramlakhan Pandey and Others Vs. Digbijay Narain Singh and Others. This decision has absolutely no application. It merely lays down the elementary proposition that where there are more Plaintiffs or more Defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the Plaintiffs or to all the Defendants, anyone of the Plaintiffs or of the Defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the Plaintiffs or Defendants, as the case may be. In this case, there is no ground common to Defendants 1 and 2. Defendants 3 and 4 are strangers having no interest in the lands. Plaintiff never disputed the title of Defendant No. 1 in the undivided eight annas share in Kha schedule, and in the balance eight annas, Defendant No. 2 had full interest. There is, therefore, no ground common to both after the trial court decree, though at the stage of defence, all the Defendants had taken the plea of Bhag-tenancy. 7. Mr. Mohapatra relied upon Nageshwar Bux Roy v. Bengal Coal Company for the proposition that any title, which a trespasser may acquire by adverse possession, would be strictly limited to what he has actually so possessed. There is no dispute about the correctness of this proposition. If Defendant No. 2 would have filed the appeal before the lower Appellate court, this contention could have been advanced to establish that the view of the trial court regarding acquisition of title by prescription is wrong in view of the categorical case of the Plaintiff that Ga schedule lands were allotted to him in 1944. But that is not the question to be determined in the second appeal.
But that is not the question to be determined in the second appeal. Rightly or wrongly the learned trial court recorded his finding on the question of adverse possession and Defendant No. 2, alone adversely affected by such finding, did not appeal. However wrong, the finding is final and binding as against him. It cannot be reversed unless the appeal itself was competent. 8. I find no force in any of the contentions raised by Mr. Mohapatra. In the result, the appeal fails and is dismissed with costs. Appeal dismissed. Final Result : Dismissed