Prabhas Chandra Dhibar v. Shankar Ojha — 1989 DIGILAW 397 (PAT)

Judgment S.B. Sinha, J. This first appeal arises out of a judgment and decree dated 23.2.1980 passed by Sri Jiwan Tigga, Addl. Sub-Judge, 2nd Court, Dhanbad, in Title Suit no. 60/35 of 1968-79, whereby and whereunder the said learned court dismissed the plaintiff/appellants suit inter alia, on the ground that the same was not maintainable. 2. The plaintiff/appellants filed the aforementioned suit for a declaration to the effect that the plaintiffs no. 1 to 3 have 2/5th share and plaintiffs no. 4 and 5 have 1/5th share in the properties in suit which are tanks and as have been described in details in the schedule appended to the plaint. 3. The plaintiffs/appellants filed the aforementioned suit alleging inter alia, there that the two tanks in question namely Bara Bandh Joria Bandh and Ojha Bandh @ Geruabandh were recorded under Khewat Nos. 19/6 and 47/6 of Mouzas Bagmara and Ranipokha respectively. The plaintiffs alleged that one Nilmani Ojha and Ors. of Ranipokhar had been in possession of the suit tank in their permanent Brahmottar right. Nilmani Ojha and Ors. made permanent settlement of the said tanks with heritable right with Raju Dhibar, Mahindi Dhibar, Kirtan Dhibar, Sadu Dhibar and Kamini Jelani for rearing and catching fish by reason of a registered deed of Patta dated 6.6.1922 and the lessees also executed a registered Kabuliyat in favour of the lessees and thereafter the said lessees came in possession thereof. It is alleged that all the co-sharers had equal share and that Mahindi Dhibar had 1/5th share therein as Mahindi Dhibar predeceased his father, upon death of Raju Dhibar 2/5th share was inherited in relation to the said tanks by the plaintiffs no. 1 to 3. It is further alleged that Raju Dhibar died 30 years ago and since then the plaintiffs had been in possession of the said tanks with other co-sharers. It is further alleged that Kamini Jelani died 28 years ago and her 1/5tn share was inherited by her husband's brother's sons, who are plaintiff nos. 4 and 5 and they are also in possession jointly with other co-sharers. It is further alleged that Sadu Dhibar died 25 years ago and his 1/5th share was inherited by his daughter Nishada, who also died 3 years ago and her 1/5th share was inherited by her son Mathna Dhibar defendant no. 15 and her daughter Kamala Dhibarani, defendant no. 16. 4. It is further alleged that Sadu Dhibar died 25 years ago and his 1/5th share was inherited by his daughter Nishada, who also died 3 years ago and her 1/5th share was inherited by her son Mathna Dhibar defendant no. 15 and her daughter Kamala Dhibarani, defendant no. 16. 4. It is further the case of the plaintiffs that Kirtan Dhibar died on 20.2.1968 and his 1/5th Share was inherited by his son defendant no. 13 and daughters defendants nos. 18 to 20. 5. It was further alleged that the defendant nos. 1 to 3 in collusion with the aforementioned Kisto Dhibar filed a suit being Title Suit no. 150 of 1962 against Kirtan Dhibar and others in the court of Munsif 2nd court, Dhanbad for declaration of title to the extent of 12 annas share in the tanks in question. 6. The said suit was dismissed and the plaintiffs thereof preferred an appeal which was registered as Title Appeal no. 92/65. In the said appeal a compromise petition was filed on 8.6.1967. By reason of the said compromise petition, the defendant no. 6 thereof admitted 12 annas share in the plaintiffs/appellants of the said suit/appeal who are defendant nos. 1 to 3 in Title Suit no. 60/68. According to the plaintiffs, the compromise decree passed in the aforementioned Title Appeal no. 92/65 was not binding upon them and as such they filed the aforementioned suit for declaration. 7. The contesting defendants filed separate written statements infer alia taking the plea that as the plaintiffs had not been in possession of the tanks in suit, the same was not maintainable. 8. Mr. T.K. Das, learned counsel appearing on behalf of the plaintiffs/appellants drew my attention to the judgment of the trial court and submitted that learned court below had accepted the fact that Kirtan Dhibar had all along been in possession of the tanks in question. He, therefore, submitted that in view of the fact that the learned trial court has arrived at a finding that Kirtan Dhibar was a co-sharer of the plaintiffs in the earlier suit, a compromise in relation whereof had been entered into by and between the parties in Title Appeal no. He, therefore, submitted that in view of the fact that the learned trial court has arrived at a finding that Kirtan Dhibar was a co-sharer of the plaintiffs in the earlier suit, a compromise in relation whereof had been entered into by and between the parties in Title Appeal no. 92/65 thereof was not binding upon the plaintiffs and thus it was not necessary for the plaintiffs to pray for consequential relief inasmuch as possession of Kirtan Dhibar would be deemed to be possession of the plaintiffs. Learned counsel in this connection has relied upon a decision in P. Lakshmi Reddy v. L. Lakshmi Reddy, reported in A.I.R. 1957 S.C. 314. 9. Mr. Jai Prakash, the learned counsel appearing on behalf of the defendants no. 1 to 3 (respondent no. 1 to 3/a), on the other hand, drew my attention to the paragraph 22 of judgment of the learned trial court and submitted that in view of the fact that by reason of an order dated 1.5.1965 passed in Title Suit no. 150/62, the plaintiffs were allowed to catch fish (Ext. C) and further in view of the consent decree passed in Title Appeal no. 92/65 (Ext. H), the defendants no. 1 to 3 would be deemed to be in possession of the tanks in question and in that view of the matter, the suit was not maintainable in terms of the proviso to section 34 of the Specific Relief Act 1963. 10. In the instant case, the learned trial court has negatived the plea of the defendants to the effect all the original issues surrendered the tank in question to the their landlord, who settled the same in favour of the predecessor in interest of the defendant nos. 1 and 3 and Kirtan Dhibar. By reason of the compromise, entered into by and between the original defendants no. 1 to 3 and Kirtan Dhibar in the aforementioned Title Appeal no. 92/65, the parties admitted title and possession of the Kirtan Dhibar at least to the extent of 4 annas in the tanks in question. 11. Before this court the findings of the learned trial court to the effect that defendants no. 1 to 3 and/or their predecessor in interest did not have any light, title, interest or possession in relation to the tanks in question, have not been challenged. 12. 11. Before this court the findings of the learned trial court to the effect that defendants no. 1 to 3 and/or their predecessor in interest did not have any light, title, interest or possession in relation to the tanks in question, have not been challenged. 12. In this view of the matter the only question that arises for consideration in this appeal is as to whether the possession of the Kirtan Dhibar would be deemed to be possession on behalf of the plaintiffs also and in that view of the matter whether the suit was maintainable? 13. The learned trial court after analysing the evidence on records held as follows:- "Thus from the above evidence adduced from the side of the contesting defendants it is clear that there is not any documentary or oral evidence in respect if rearing and catching fish and division of share among the heirs of Debilal Ojha and Ors. The plaintiffs have also failed to show that rearing and catching fish and division of their share in respect of the suit tanks. On close examination of oral evidences of both parties and after consideration of various facts and circumstances of both the parties I find that Kirtan Dhibar was all along in possession of the suit tanks by rearing and catching fish. Kirtan Dhibar died last amongst Rajib Dhibar, Mahnindi Dhibar, Sadu Shibar and Kamini Jalani." The learned trial court further held as follows:- "The plaintiffs have produced the evidence of Kirtan Dhibar which was recorded in Title Suit no 150/62 Ext. 5/a. Admitedly Kirtan Dhibar died on 20.2.68 before the institution of the present suit. Ext. 5/a would clearly go to show that Kirtan Dhibar and the heirs of Sadu and Kamini were in possession of the suit tanks till the death of Kamini. He has also stated in respect of surrender of Patta. According to him, the date of death of Kamini Jelani which appears to have been taken place in or about 1940. The Sada Hukumnama Ext. D is dated 25th Falgoon, 1341 B.S. corresponding to 1936. On close examination of Ext. D I do not find any mention of surrender of the suit tanks by the original lessees. The original registered patta is Ext. The Sada Hukumnama Ext. D is dated 25th Falgoon, 1341 B.S. corresponding to 1936. On close examination of Ext. D I do not find any mention of surrender of the suit tanks by the original lessees. The original registered patta is Ext. E. There is also no any endorsement on the back of it in order to show that Rajib and others surrendered the same (para 17 begins) to the ex-landlord. After consideration of the entire evidence, facts and circumstances of the case and the document Exts. D and E I find that the story of surrender as made out by the contesting defendants Shankarlal Ojha and others can not be believed. From the documents it appears that the plaintiffs appear to have been in joint possession of the suit tanks till 1960 through their co-sharers." 14. It is thus absolutely clear that the learned court below has found that Kirtan Dhibar and after his death his heirs had all along been in possession of the tanks in suit. 15. It is true that the plaintiffs have not been able to show their possession in or over the tanks in question not have they been able to show that they had been taking shares from Kirtan Dhibar and others so far as the fish caught therefrom is concerned. However, in law the possession' of one co-sharer must be held to be possession of all. 16. It is not the case of the defendants that at any point of time Kirtan Dhibar or his heirs ousted the plaintiffs. 17. Unless and until a case of ouster is pleaded and proved, a co-owner of a property although not in actual physical possession will have a juridical possession in or over every part of the properties of which he is a co-owner along with others. In P. Lakshmi Reddy v. L. Lakshmi Reddy, reported in A.I.R. 1957 S.C. 314, the Supreme Court has clearly held that possession of one co-owner will be deemed to be possession on behalf of the co-owners. 18. Further in this case in terms of compromise petition (Ext-B/1) and decree which was prepared in pursuance therefore (Ext-H), the share of Kirtan Dhibar in 'relation to the tank in question at least to the extent of 4 annas was not disputed. 19. In such a situation, the defendant nos. 18. Further in this case in terms of compromise petition (Ext-B/1) and decree which was prepared in pursuance therefore (Ext-H), the share of Kirtan Dhibar in 'relation to the tank in question at least to the extent of 4 annas was not disputed. 19. In such a situation, the defendant nos. 1 to 3 in law must be held to have admitted the possession of Kirtan Dhibar in or over the properties in suit even in terms of aforementioned compromise petition. Thus in view of the finding of the trial court that the plaintiffs were co-owners of the aforementioned Kirtan Dhibar, the possession of Kirtan Dhibar in the aforementioned tank would enure to their benefit also. 20. In a suit of this nature where the plaintiffs have merely prayed for a decree that they have some share in the properties in suit along with the defendants, in my opinion, it was not necessary for the plaintiffs to pray for consequential relief of recovery of possession inasmuch as seen hereinbefore, possession of Kirtan Dhibar will be deemed to be possession of all the co-owners including the plaintiffs. 21. So far as Ext. G is concerned the same is an order dated 1.4.1965. From a perusal of the said order, it appears that an application for injunction was filed by the defendant no. 6 thereof for restraining the plaintiffs of the aforementioned suit, who are defendant no. 1 to 3 before the court below from rearing and catching fish. During the course of healing of the said application it was suggested that a receiver should be appointed in respect of the tanks in question, so that injury may not be caused to the parties for not being able to rear and catch fish in the tanks in suit because of pendency of the said suit. 22. In such a situation, the court permitted the plaintiffs thereof (defendant nos. 1 to 3 before the court below) to catch the fish in presence of defendant no. 6 thereof and further directed him that he would maintain accounts in relation to the fish caught from the disputed tanks upon this furnishing security of Rs.10,000/-. In effect and substance, the court directed the plaintiff to catch fish from the tanks in suit as an officer of tile court and not as a party who had been in undisputed possession of the properties. 23. In effect and substance, the court directed the plaintiff to catch fish from the tanks in suit as an officer of tile court and not as a party who had been in undisputed possession of the properties. 23. As noticed hereinbefore, Ext. H in the consent decree in Title Appeal no. 92/65, prepared pursuant to the compromise petition filed therein (Ext 4). As the' learned court below it self has held that the plaintiffs being not parties in the aforementioned suit and appeal were not bound by the said decree and having further held that the plaintiffs have also shares in the tanks in question along with Kirtan Dhibar the said document was wholly irrelevant for the purpose of finding out actual physical possession of the parties. In this case the said consent decree could not have been looked into for resolving the disputed question of possession. 24. The learned court below, therefore, committed an illegality in holding that in terms of Exts. G and H, the defendants would be presumed to be in possession of the suit tanks. 25. As noticed hereinbefore, the learned court below has also committed an illegality in holding that the possession of Kirtan Dhibar can not be said to be possession on behalf of all co-sharers. 26. In this view of the matter, the judgment and decree passed by the learned trial court can not be sustained. 27. This appeal is, therefore, allowed and the judgment and decree passed by the trial court are set aside. It is held that the plaintiffs arc entitled to the relief’s sought for. However, in the facts and circumstances of the case parties shall bear their own costs throughout.