RAKCHA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree dated February 25, 1966 of Shri R.M.R. Khanna, Additional Civil Judge, Gorakhpur, allowing the plaintiff-respondent's appeal after modifying the decree of the trial Court. The dispute between the parties related to the land shown by the letters A N O P on the sketch map given at the foot of the plaint. This land is a portion of a larger land denoted by the words A B C D. One Shyam Lal was the brother of the plaintiff-respondent. The defendant-appellant filed suit No. 222 of 1960 against Shyam Lal aforesaid for possession of the disputed land A N O P in this case on the ground that it was the defendant-appellant's sahan and Shyam Lal was a trespasser. That suit was decreed notwithstanding the contest of Shyam Lal. The suit giving rise to this appeal was filed by the plaintiff-respondent against the defendant-appellant on the allegation that the plaintiff and his brothers Shyam Lal and Baldeo were the joint owners of the land denoted by letters A B C D at the foot of the plaint and by a private partition the land A N O P came to the exclusive share of the plaintiff. It was alleged that the decree obtained by the defendant-appellant against Shyam Lal is vitiated by the fact that it was collusive and obtained by fraud. On the above allegations the plaintiff-respondent wanted exclusive possession of the disputed land after cancellation of the decree in suit No. 222 of 1960.

(2.) THE trial Court after taking evidence of the parties came to the conclusion that the plaintiff and his brothers Shyam Lal and Baldeo were the joint owners of the land A B C D. It repelled the plaintiff's case that there was a private partition between the brothers and by virtue of the partition the land in dispute, viz., denoted by letters A N O P, came to the exclusive share of the plaintiff. It was also held that the plaintiff was no party to the decree in suit No. 222 of 1960 and as such it is not binding on him. On the above findings the trial Court refused to cancel the decree in the previous suit and dismissed the plaintiff's claim for exclusive possession also.

(3.) FEELING aggrieved, the defendant has come up before me in second appeal. I have heard the learned counsel for the parties. I have also gone through the record. After giving the matter my anxious consideration I have come to the conclusion that the decree passed by the lower appellate Court has to be modified. The suit No. 222 of 1960 was between the defendant-appellant and Shyam Lal, admittedly one of the co-sharers in the disputed land, and he lost that suit to the defendant-appellant. Shyam Lal cannot go behind the decree. His rights as co-sharer to whatever extent they may have now been acquired by the defendant-appellant. Since the plaintiff-respondent is not the exclusive owner of the disputed property and he has a share only he can get only joint possession along with other co-sharers. I have already held above that as a result of suit No. 222 of 1960 defendant-appellant had stepped into the footsteps of Shyam Lal, the own brother of the plaintiff-respondent, and as such he became a co-sharer along with the plaintiff in the disputed land. In this view of the matter it was wrong on the part of the lower appellate Court to pass a decree for exclusive possession. That the Court should have done was to pass a decree for joint possession only.