Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Hari Bhusan Halder vs Sheikh Abdul And Ors. on 11 March, 1926
Equivalent citations: AIR 1927 Cal 54, 97 Ind Cas 441
Author: B Ghose


B.B. Ghose, J.

1. These two appeals arise out of two suits for possession of 8 annas share of different plots of land by partition on the allegation that these lands belonged to the plaintiff and the pro forma defendant in equal shares; that the pro forma defendant had granted leases of his 8-annas share in the lands in 1910 to the defendants in both these suits, that by virtue of these leases the defendants took possession of the entire lands. The plaintiff served upon them notice to quit his 8-annas share, but they did not pay any heed to that notice and wrongfully remained on the land.

2. The defendants raised various picas which are not necessary to state in detail now. Several issues wore raised in the trial Court and that Court dismissed the plaintiff’s suit for khas possession, but only declared his title to 8-annas share and his right to recover rent from the defendants with regard to his 8-annas share on the basis of the leases granted by the pro forma defendant the plaintiff appealed in both the cases against that decision of the Munsif arid on appeal the questions which were principally argued were whether the defendants got settlements of the entire lands in suits or only the 8-annas share of the pro forma defendant and whether the plaintiff was entitled to have khas possession of his share in the land on partition. With regard to the first point, the Subordinate Judge observes that it was common ground of the parties that the plaintiff had 8-annas share in the land while the pro forma defendant had the other 8-annas share. He also came to the conclusion that by virtue of the pattas, Exs. A and B, the pro forma defendant made settlements in respect of his share of the land only. Ho comes to this conclusion from the fact that the pattas did not purport to grant settlements of the entire lands and that the pro forma defendant had obtained decrees for rent only for his share with regard to the lands in suit.

3. The Subordinate Judge further remarks that the pattas did not specifically mention the quantity of land in his share, nor do they mention the extent of his share. The Subordinate Judge next observes that after the settlement the defendants began to possess the entire lands as tenants and made substantial structure thereon and many improvements. The Subordinate Judge further says that it is in evidence that the plaintiff was fully aware of these and also that the plaintiff gave notice to the defendants in 1912 asking them not to make further buildings on the lands. But he held that the plaintiff not having taken any further steps against the defendants who went on making the buildings was not entitled to treat the defendants as trespassers on his share of the lands. On that finding he dismissed the suit for khas possession on partition. In taking this view it seems that the Subordinate Judge had a somewhat vague idea of applying the rule of estoppel as against the plaintiff. That rule is, however, that where a person in bona fide belief that a certain property belongs to him spends money upon it and the true owner stands by and allows him to spend the money and make improvements upon his land, the true owner is estopped from asserting his title to the land as against the person making improvements in such bona fide belief.

4. Here the circumstances do not call for the application of that rule of estoppel. The defendants cannot be said to have occupied the entire land in the bona fide belief that the whole had been let out to them. Nor can it be said that the plaintiff stood by and allowed the defendants to spend money on the land and make improvements. The finding is that in 1912 the plaintiff gave notice to the defendants to desist from building any structure. The idea on which the Subordinate Judge seems to have acted was that the plaintiff should not only give notice, but do something more. But I cannot think what more the plaintiff was bound to do in addition to giving notice to the defendants, even if they had acted bona fide, that he had a right to the land and he objected to the defendants’ making any further use of it. The plaintiff is not bound to rush to the Court if he does not find it convenient to do so at once. It is clear, therefore, that the defendants went on spending money on the land at their own risk and that cannot debar the plaintiff from asserting his legal right to his own property. In such a case as this it has been laid down in a long series of cases of the highest authority that the plaintiff’s only remedy is to seek for a partition and that is the remedy which he has asked for and which has been, I think, wrongly denied to him by the Court below.

5. It has been urged by one of the learned Counsel for one of the defendants that the lease was granted for the entire land by the pro forma defendant acting as a karta of the joint family consisting of the plaintiff and the pro forma defendant. But although there is such an allegation made in the written statement that was not persisted in and no evidence was adduced to show that there was any joint family or that the pro forma defendant was acting as a karta of the joint family even if we accept the argument that the leases cover the entire lands. This argument, therefore, is not sustainable.

6. It was argued by another counsel on behalf of the other defendant that the plaintiff’s suit was barred by limitation, because it was open to the defendants to plead either that they were tenants on the land or in the alternative that they were trespassers, and if the plaintiff did not choose to accept the defendants as tenants they might raise the plea of adverse possession as against the plaintiff. But in this case such a plea does not appear to be open to the defendants, because their whole case throughout was that they were on the land as tenants having been induced by the co-sharer of the plaintiff, the pro forma defendant. Even if they were brought on the land before 1910 when the leases were granted it would not make them trespassers holding adversely to the plaintiff as on their own showing they were holding as tenants of his co-sharer. Further, as the learned Subordinate Judge remarks that in the written statements the defendants did not deny the plaintiff’s title, on the other hand the plaintiff’s title to 8-annas share was admitted. Under the circumstances the argument with regard to the question of limitation cannot be given effect to.

7. The judgments and decrees of the Courts below in the two suits must, therefore, be set aside and the cases remanded to the trial Court to effect a partition according to the usual rules for making partitions.

8. The plaintiff is entitled to his costs in this Court and in the lower appellate Court. Costs of the trial Court will abide the final order of that Court.

Cuming, J.

9. I agree.

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