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Allahabad High Court
Bhartu vs Deedar Singh And Anr. on 7 January, 1929
Equivalent citations: AIR 1929 All 241, 113 Ind Cas 831
Author: Mukerji


Mukerji, J.

1. The plaintiff Deedar Singh who is one of the cosharers of the village instituted the suit out of which this appeal has arisen for the ejectment of the defendants granting them a chance to remove the materials of a house It appears that defendant 3 and the plaintiff are two of the cosharers of the village and defendant 1 was a tenant occupying, the house in question in the village sire Defendant 1, Kaley, rented the house to defendant 2 and, subsequently, on 2nd October 1925, sold it to defendant 3. On these facts the suit was instituted. Defendant 3 contested the suit on the ground that although a tenant had no right to sell the house without the consent of the cosharers of the village, yet the house having been transferred to one of the cosharers in the village, the plaintiff had no cause of complaint and had no remedy. The suit was dismissed by the Court of first instance but it has been decreed by the lower appellate Court. The learned Additional District Judge found that not only the materials, but the site of the house had been sold and he laid stress on the fact that the tenant had no right to sell the house.

2. On an examination of the original sale-deed which was in possession of the appellant’s counsel and a copy of which was in possession of the respondents’ counsel, it became clear that Kaley never purported to sell the site. What he did purport to sell was his right to residence and the materials of the house. He expressly exempted the site of the house from sale. The Judge’s finding, therefore, that the site had been sold is wrong. The question, however, remains whether defendant 3 can retain possession of the house and keep the materials there in the shape of a house for the simple reason that he is a cosharer. In other words, does the admitted inability of the tenant to sell the house as such cease to operate as soon as the purchaser is a cosharer in the village. No authorities have been cited on either side, except the one to be mentioned presently on behalf of the appellant. On principle, as enunciated by this Court, the fact that defendant 3 is a cosharer does not improve his position, in law. It has been held in this Court that one of several cosharers in a joint village could not build on joint land without the permission and consent of the other cosharers. That view of the law must be taken as established, so far as this Court is concerned. If that is so, it ought to follow that a cosharer, by merely procuring a sale-deed from one of the tenants of a house, cannot improve his position. This view was taken by one of the learned Judges of this Court so long ago as in the year 1907, see: Raghunandan Das v. Ram Krishan Das, S.A. No. 1013 of 1905 reported in Reporters Diary, 4 A L.J. 196. The learned Counsel for the appellant relied on the case of Shib Narayan Lal v. Muhammad Abdul Rafi Khan [1906] 3 A.L.J. 669 decided by two learned Judges of this Court. It was a case in which one of the cosharers of the village took a lease from a tenant and the tenant died. The other cosharers of the village wanted to oust the cosharer from the land and it was held that they could not. The land in question was ordinary cultivatory land and the cultivation of that land by one of the cosharers of the village was a perfectly legitimate use of the land. The occupancy by one of the cosharers of the cultivable land did not imply and did not involve an ouster of the other cosharers. That was the basis of the decision. As I have already mentioned, in the case of constructing a house, it is the view of this Court that a cosharer is not permitted to do it, because the act amounts to an ouster of other cosharers. The two cases are therefore clearly distinguishable.

3. The result is that the appeal fails and is hereby dismissed with costs.

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