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Allahabad High Court
Mahabir vs Baijnath Singh And Ors. And Anr. on 11 April, 1929
Equivalent citations: AIR 1929 All 609, 117 Ind Cas 339
Author: Bennet


Bennet, J.

1. This is a second appeal against the concurrent judgments of the two lower civil Courts which have awarded the respondent-plaintiffs a decree for joint possession as cosharers with the appellant in certain plots in which it is admitted that the respondents own 13/16th shares. The points raised in appeal are that joint possession should not have been granted because the defendant had not denied the title of the plaintiffs and because there was an apprehension of the breach of the peace. The facts are simple. The plots in question were held by a tenant Mata Mahesh and all the cosharers, i.e. appellant and the respondents, brought a suit in the revenue Court for ejectment of the tenant. Under the Agra Tenancy Act 3 of 1926 it is necessary that all the cosharers should join in such a suit, and by bringing this suit along with the respondents the appellant clearly admitted that respondents were cosharers with him in regard to this tenancy. Subsequently one of the respondents applied for withdrawal of the suit, and it was withdrawn. The appellant then applied for reinstatement and without the consent of the other cosharers he obtained a decree of ejectment and delivery of possession in execution by himself alone though in the name of the cosharers. These proceedings were clearly not binding on any other cosharers, and they were clearly contrary to the provisions of the Tenancy Act. Under Section 266(3) where the remaining cosharers refuse to join a cosharer in a suit for money recoverable by them jointly, such a co-sharer may sue separately for his share joining the remaining cosharers as defendants. The suit, however, in the revenue Court was not for money but for ejectment. Under Section 266(1) it was necessary, therefore, for all the cosharers to join in the suit, and when the other cosharers refused to proceed with the suit it was wrong for the revenue Court to have decreed that suit of ejectment at the instance of the appellant alone. The method, therefore, by which the present appellant recently obtained possession of this holding was by a trick imposing on the revenue Court. The learned advocate for the appellant seems to think that his client’s case is improved by pointing out the fact that his client purported to act in the name of all the cosharers. But under Section 266(1) one co-sharer cannot act on behalf of all the cosharers unless he has been appointed as an agent to act on behalf of them all, and the learned advocate has failed to show that his client had any such authority.

2. The possession by the appellant was obtained on 13th April 1926. Subsequent to this the tenant was again put in possession by the plaintiffs, but the appellant brought a criminal suit for trespass against him and obtained possession from the criminal Court on 31st December 1926. The argument for the appellant is far from clear. On the one hand, his learned Counsel contends that he is in joint possession on behalf of all the cosharers in virtue of the possession which he took in the name of all the cosharers on 13th April 1926, and on the other hand his learned Counsel contends that he has to remain in actual separate possession and oust the possession of other cosharers and reduce their rights to merely obtaining profits from him. Reliance for this position is placed on a Pull Bench ruling of this Court, reported in Hanuman Prasad Narain Singh v. Mathura Prasad Narain Singh A.I.R. 1928 All. 472 This ruling laid down at p. 995 (of 26 A.L.J.):

A decree for joint possession may certainly he granted to one co-sharer against another

… Such a decree may undoubtedly be given even where the plaintiff has not been in actual possession.

3. At p. 998, it is stated:

That the Court has some discretion in the matter of granting a decree is obvious from the decision of the Privy Council in the case of Watson and Co v. Ram Chand Dult [1891] 18 Cal. 10 but we find no authority in that judgment for holding that in the exercise of their discretion the Courts are to be guided by any other consideration than the rights and interests of the parties concerned. Such considerations, as the danger of a riot or criminal proceeding have really nothing to do with the rights and interests of the parties inter se and should not, we consider, be entertained by a civil Court. The question whether the Court has any discretion to refuse to grant, a decree in such a case on the ground that it would be impracticable, must be answered in the negative. If the plaintiff is entitled to a decree in accordance with the principles of justice, equity and good conscience, as laid down in the decision of the Privy Council, we consider that the Court must give him a decree whether it believes that it would be useful to him or not

4. I may note that this portion of the ruling fully disposes of the second ground of appeal that possession should not have been granted because there was an apprehension of the breach of the peace. It was further stated at p. 996:

We think, therefore, that we answer this part of the question by saying that the Court has no discretion to refuse a decree merely on the ground that it would be inadvisable for reasons unconnected with the rights of the parties.

5. On receipt of the ruling of the Pull Bench the original Bench deciding the suit held as follows on p. 997:

We must accordingly examine the facts of this case and the findings of the Court below. In the written statement the defendant did not expressly deny the plaintiff’s title. The main point taken in para. 18 was that the sir and waste lands had been in exclusive possession of the defendant, and the plaintiff had no right to get actual possession thereof…. We therefore think that as in this case the defendant’s possession had been exclusive and peaceful for a long number of years this is not a fit case in which his possession can be disturbed by passing a decree for joint possession in favour of the plaintiffs.

6. This shows that the grounds which influenced the original Bench in refusing to grant the plaintiffs a decree for separate possession were, firstly, that the defendants had been in exclusive and peaceful possession for a long number of years with the consent of the plaintiff and secondly that there had been no denial of the title of the plaintiffs. Of these conditions the only one which exists in the present case is that the defendant has not denied the title of the plaintiffs. The possession of the defendant has been exclusive and peaceful for a long number of years, nor has it been at any time with the consent of the plaintiffs. Further the case of sir land is altogether different from the case of a tenancy. If joint possession were refused in the present case on the ground that a general rule of refusal should apply to cases like the present, then it would be open to any cosharer to obtain possession by any means whatever of the land of a tenant and to claim that he can hold that land in his separate possession against the claim of his cosharers. This I consider would be a very improper and inequitable proposition of law. Accordingly I dismiss this appeal under Order 41, Rule 11.

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