Amir Lal Thakur v. Ram Krishna Singh — 1969 DIGILAW 153 (PAT)

Judgment B.P.Sinha, J. 1. Ramkrishna, and others opposite party instituted a Title Suit No. 83 of 1963 in the Court of the Munsif at Begusarai for declaration, of title and recovery of possession in respect of 1 katha 5 dhurs of land, against Amrilal Thakur and others. One of the plaintiffs, namely, Kamlakar Prasad Singh, plaintiff No. 6 died during the pendency of the suit. A petition was filed by the plaintiffs for substitution of the names of his widow and son in place of Kamlakar Prasad Singh. That petition was not filed within time. The petitioners then filed a rejoinder objecting to the prayer of substitution and contending that the whole suit had abated. The learned Munsif -rejected the prayer for substitution. He, however, held that the whole suit had not abated and as such the hearing of the suit would proceed at the instance of the remaining plaintiffs. Against that order this petition has been filed. 2. The contention of the learned Counsel, for the petitioners, is that the effect of heirs of plaintiff No. 6 having not been brought on the record is that the entire suit abated and the learned Munsif should have dismissed the suit. 3. The allegations in the plaint are that Raudi Singh, ancestor of the plaintiffs, as karta of the joint family had purchased 12 kathas 7 dhurs of land bearing plot No. 899 in the year 1917 and since then the plaintiffs have been coming in possession of the same. The defendants who held land adjacent west of the plaintiffs land forcibly encroached upon 1 katha 5 dhurs of the plaintiffs" plot on 15 of Asarh, 1367 Fs and thereby dispossessed the plaintiffs therefrom. The plaintiffs, therefore, instituted a suit for eviction of the defendants as trespassers. The defence is that the defendants acquired title over disputed land on account of possession for 40 years. Thus this was a suit instituted against the defendants as trespassers by the plaintiffs, who are members of the joint family. The plaintiffs therefore claimed possession over the disputed land as joint owners. Now the question is whether the death of one of the plaintiffs would have the effect of abatement of the entire suit. For determination of this question, the test is whether the remaining plaintiffs could maintain the suit as filed. 4. The plaintiffs therefore claimed possession over the disputed land as joint owners. Now the question is whether the death of one of the plaintiffs would have the effect of abatement of the entire suit. For determination of this question, the test is whether the remaining plaintiffs could maintain the suit as filed. 4. In this connection the contention of the learned counsel for the petitioners is that the suit was instituted by all the members of the joint family; it was not a suit by the karta in his representative capacity, though in the plaint there is a statement that plaintiff No. 1 is the karta; the effect of the death of plaintiff No. 6 is that the suit remains to be prosecuted by the remaining coparceners only. It is submitted that in the case of a joint Hindu family, however, some of the coparceners only have no right to institute a suit for eviction of trespassers. That is to say, according to the learned Counsel the remaining plaintiffs, in absence of legal representatives of the deceased coparcener plaintiff No. 6, cannot maintain the suit for eviction of the petitioners and as such the whole suit has to abate. 5. In my opinion, the point involved in this case is fully covered by a Full Bench decision of this Court in Ram Niranjan Das V/s. Loknath Mandal, 1969 Pat L JR 96 = ( AIR 1970 Pat 1 FB). That was a case instituted for eviction of trespassers. It so happened that some of the persons interested in the property were not made plaintiffs. The question arose as to whether a suit by a co-sharer for eviction of trespassers was maintainable in respect of the entire land without impleading the other co-sharers or was he entitled to a decree for joint possession with the trespassers to the extent of his share only. It was observed:- - "..... a co-sharer, with his title in equity, has a better claim to be in possession on behalf of all the co-sharers, than a complete trespasser. It is true, no doubt, that a trespasser whose possession can be taken in law, to be possessory title cannot be disturbed in his possession by another trespasser, and, as against the latter, he has a right to recovery or possession. It is true, no doubt, that a trespasser whose possession can be taken in law, to be possessory title cannot be disturbed in his possession by another trespasser, and, as against the latter, he has a right to recovery or possession. It is well settled that merely a possessory title, when confronted with a better title will yield place to the better title which must prevail over a trespassers possessory title pure and simple. A co-sharer, having an interest in a property jointly with others, is apparently a person with a better title than a trespasser. Following this principle there is no reason why his suit should not be decreed. It is relevant also to consider in this connection that it is well settled principle of law that one of the various co-owners of a property, if in possession, will be deemed to be in possession on behalf of all the co-sharers, and it is for this reason that his possession, in law, therefore is not regarded as adverse to other co-owners unless there is distinct proof of ouster. In that view of the matter also, the interest of an undivided co-owner or co-sharer must be taken to cover every inch of land which may be the subject-matter of dispute as belonging to the co-owners, and hence it is clear that there is no support for Mr. Kailash Rais contention either in principle or in authority as to why a co-sharers suit cannot be held to be maintainable without impleading other co-sharers, and why it should not be decreed in respect of the entire interest of the co-owners which of course, however, will not affect the rights of the co-owners vis-a-vis successful plaintiff in a suit against a trespasser". According to this decision a co-owner can maintain a suit for eviction against a trespasser with regard to the entire property. Learned Counsel for the petitioners, has however, contended that this decision has got no application to the facts of the instant case, inasmuch as, the present case is not by the co-sharers in the sense in which the plaintiffs of the case under consideration in that Full Bench Decision were. It is urged that here the plaintiff are the coparceners of a joint Hindu family and as such the principle laid down in the aforesaid Full Rench decision has got no application to the instant case. It is urged that here the plaintiff are the coparceners of a joint Hindu family and as such the principle laid down in the aforesaid Full Rench decision has got no application to the instant case. I do not see any reason for making any distinction in the way the learned Counsel for the petitioners has tried to do. The sum and substance of the Full Bench decision is that a person having a better title is fully entitled to evict a trespasser who has got no title and since a co-sharer has got some interest in the property, he holds a better title and therefore he has got right to evict the trespasser from the entire property in which he has got a share. Because of joint ownership, a co-sharer has got right to remain in possession over the entire property in preference to a trespasser and therefore he has got right to evict a trespasser from the entire property. The same principle can be applied in the case of coparceners. Coparceners of a joint Hindu family are undoubtedly co-owners of the property. The only distinction in the case of coparceners of a joint Hindu family and other kind of co-sharers is that the coparceners are joint owners having no defined share (his share being liable to in crease or decrease), whereas in the other case the shares of the sharers are defined so far the right of possession over the joint property is concerned, I do not see any reason to make any distinction between co- owners with defined shares and co-owners with undefined shares. Even a co-owner with undefined shares has got title to every inch of the joint property and therefore he holds a title better than that of a trespasser, and as such he can maintain a suit for eviction of the trespasser from the entire property according to the principles laid down in the aforesaid decision. There is no substance in the contention of the learned Counsel that a joint family has to act as a unit and no individual coparcener can maintain a suit for eviction of a trespasser. 6. There is no substance in the contention of the learned Counsel that a joint family has to act as a unit and no individual coparcener can maintain a suit for eviction of a trespasser. 6. The learned Counsel for the petitioners has referred to a decision of the Privy Council in Dingangowda Dad-Basangowda Patil V/s. Basangowda Bistangowda Patil, AIR 1927 PC 56 in support of his contention that any coparcener cannot institute a suit for eviction of the trespasser. In my opinion that case is not authority for this proposition. What was held in that case was that when a case has been fought by a person representing the joint family, an individual member of the family cannot be permitted to litigate again and again the same matter. There cannot be any dispute about this proposition. Here the question is if the suit against the trespassers which was instituted not in a representative capacity but by all the members of the family could be continued by some of the coparceners, who remained on the record. In this connection it has been submitted that the effect of non-substitution of the legal representatives of the deceased plaintiff is that the defendants have obtained a decree in the cause and therefore the surviving plaintiffs cannot be permitted tp litigate the matter. There is no merit in this contention. The deceased plaintiff was not suing as representing the entire family. The Privy Council decision has no application to the facts of the instant case. 7. The learned counsel has further referred to a decision of Bombay High Court in Balkrishna Moreshwar Kunte V/s. Municipality of Mahd, (1887), ILR 10 Bom 32. No doubt in that case it was held that co-owners can sue jointly. But that is contrary to the view expressed in the aforesaid Full Bench decision of this Court which has to be followed with respect. 8. Learned Counsel has referred to a decision of this Court in Md. Saddique V/s. Khedan Lal, AIR 1916 Pat 251 in support of his contention. The observation of that case has no application. It was decided in that case that a karta represents the joint family in suit for eviction of a trespasser. In that case it was never decided that any other member of the joint family as co-owner cannot maintain a suit for eviction of the trespasser. 9. The observation of that case has no application. It was decided in that case that a karta represents the joint family in suit for eviction of a trespasser. In that case it was never decided that any other member of the joint family as co-owner cannot maintain a suit for eviction of the trespasser. 9. Thus it is clear that in case it would be found that the petitioners have not acquired any title, and are mere trespassers, the suit would not fail simply on the ground that the legal representatives of the deceased plaintiff have not been brought on the record. The result is that there is no merit in this revision and it is accordingly dismissed.