TARA KISHORE DAS Vs. BEHARU BARMAN AND ORS.

JUDGEMENT

(1.) THIS appeal relates to a suit for partition and separate possession, together with mesne profits by way of compensation, of certain lands held jointly or in common tenancy by the Plaintiff and the Defendants. The lands in question appertained to two holdings which were originally held by two brothers Bholanath and Kalanath in equal shares as tenants under the Gouripur Raj Estate. Kalanath died leaving a widow Mst. Rampuria Debya and Bholanath died leaving his two sons Rongbor and Bhubaneswar. Mst. Rampuria does not appear to have been recorded in the landlord's office in regard to her share of land which she inherited from her husband Kalanath.

(2.) HE therefore instituted a suit being Title Suit No. 59 of 1942 for declaration of his right to the lands in question and also for recovery of possession of specific plots of land on the ground that the brothers were in separate possession; in the alternative, if no such separate possession was found, then for partition. The two Courts below dismissed the suit, but on appeal to this Court the Plaintiff obtained a decree on the 2nd of December, 1948. By virtue of that decree the right, title and interest of the Plaintiff in the lands in question were declared and he was also given a decree for joint possession with the Defendants.

(3.) ON the face of it, the decision of the learned Subordinate Judge is quite illegal. He appears to have ignored the position that a right to obtain partition is a right inherent in the joint ownership of property. It is a natural and legal incident of ownership which could not be denied to a co -owner of the property so long as his right subsists. The mere fact that on an earlier occasion he could not obtain partition, is no ground for holding that the right of the co -owner to seek partition is barred for ever. It is a continuing right which the co -owner possesses in the lands in question; and if on account of inconvenience or differences with the co -owner, it is not possible for him to continue in joint ownership of the property, there is no reason why the right to seek partition should be denied to him.