ALLAHABAD BANK LTD Vs. SUBODH GOPAL BOSE

JUDGEMENT

(1.) The plaintiff respondent is the purchaser of Tauzi No. 6 of the 25-Parganas Collectorate in sixteen annas share at a revenue sale held on January 6, 1936. As such purchaser he acquired the lands included within the Tauzi free from encumbrances with the right to annul all under-tenures which were not protected by the exceptions in Section 37 of the Bengal Land Revenue Sale Act, 1859 (Act XI of 1859). The disputed property is land at premises No.1 Ronaldshay Road, in mouza Alipore in which Tauzi No.6 had 1 anna 3 gandas share. The disputed land as also other lands in Mauza Alipore were jointly owned by the proprietors of Tauzi No.6 and several other Tauzis. The defendant's landlord held the land under a lease from the proprietors of all the Tauzis other than Tauzi No.6. The defendant is in possession of the land for a long time and has constructed valuable buildings on it. The plaintiff now seeks to recover joint possession of the land on the ground that the defendant is trespasser in respect of the plaintiff's share in it. The defendant disputed that the land appertained to Tauzi No.6 and/or that the plaintiff has any interest in it; alternatively the defendant claimed a protected interest as a tenant under Tauzi No.6. The written statement of the defendant denying the plaintiff's title was filed in 1948. All the Courts have found that 1 anna 3 gandas share of the land appertained to Tauzi No. 6 of which the plaintiff was the owner and have granted the plaintiff a declaration of his title to the extent of his share in the land. The Trial Court rejected the prayer for joint possession and mesne profits on the ground that the defendant was a tenant by implication under Tauzi No.6. The lower Appellate Court negatived the plea of tenancy of implication and granted a decree for joint possession and mesne profits. The defendant has now appealed to this Court. All the Courts have concurrently found that the defendant did not acquire a tenancy under Tauzi No.6 by adverse possession. The finding that the defendant was not a tenant under Tauzi No.6 is not now challenged. A further point that the suit is barred by West Bengal Act VII of 1950 is not pressed before us. On these findings the question arises whether the plaintiff is entitled to recovery of joint possession of the disputed land, and mesne profits and if so on what terms. In the case of Subodh Gopal Bose v. Khairunnessa Bai, 60 Cal WN 361, the same plaintiff on somewhat similar facts was given a decree for recovery of joint possession "subject to the condition that the plaintiff will not be entitled to enter into occupation or exercise any right thereon until he obtains a decree or order by a competent Court in a suit or proceeding for partition." The Division Bench hearing the present appeal doubted whether on these facts the plaintiff should be given a decree for joint possession and assuming that such a decree should be given the Division Bench disagreeing with the decision in 60 Cal WN 361 held that there was no justification for imposing the condition. Accordingly the Division Bench referred the appeal to the Full Bench after formulating the following questions for its decision:

(2.) The first question does not admit of a general answer. The answer will depend upon the facts of each case. For purposes of this case it is sufficient to say that as a general rule a plaintiff owning lands jointly with other co-owners is entitled to a decree for joint possession against a defendant who is in exclusive possession of a part of the joint lands as a tenant of the other co-owners in open denial of the plaintiff's title. Such exclusive possession in open assertion to a hostile title constitutes an ouster of the plaintiff and is adverse to him. A bare declaration of the plaintiff's title will not interrupt the running of adverse possession. Justice demands that in such a case the plaintiff should be given a decree for joint possession on the strength of which he may make a symbolical re-entry on the land and thereby interrupt the adverse possession. This conclusion is consistent with the decisions in Robert Watson and Co. v. Ramchand Dutt, 17 Ind App 110 (120) and Basanta Kumari Dasya v. Mohesh Chandra Saha, 18 Cal WN 328 : (AIR 1914 Cal 283). Whether or not there has been an ouster of the plaintiff depends on the facts of each case. Even denial of the plaintiff's title in the written statement may be sufficient to establish ouster, see Sashishekhareswar Ray v. Hemangini Debi, AIR 1918 Cal 19. On the facts of this case I am satisfied that there has been ouster of the plaintiff and he is prima facie entitled to a decree for joint possession. The fact that the plaintiff and the defendant's landlords are joint owners of other lands is not by itself sufficient to deprive the plaintiff of his prima facie right to such a decree. The defendant is not a co-owner of the other lands. There is no reason why the plaintiff should be driven to a suit for general partition of all the joint lands and be refused a decree for joint possession of a part of those lands from which he has been ousted by the defendant, especially where, as in this case, the denial of the relief may extinguish the plaintiff's title to the land and may seriously prejudice him. On similar facts the Court rightly granted a decree for joint possession in 60 Cal WN 361. In view of the ouster the plaintiff is entitled to mesne profits.

(3.) The decree for joint possession may be executed only in the manner provided for by Order XXI Rule 35(2) C.P.C., see Dwarikanath Mondal v. Ram Nath Barman, 67 Cal LJ 39. In execution of such a de the plaintiff will be entitled to get symbolical possession only and the defendant's khas possession will not be disturbed.