INDER Vs. PARAS RAM AND OTHERS

JUDGEMENT

(1.) THIS appeal of Inder arises out of a suit filed by him for possession of land comprised in khasra numbers 1134 and 1136 along with a gharat (water mill) which he held as a co -owner with the three Defendants, Paras Ram, Shib Ram and Achhar. The suit which was brought on 4th of April, 1955 was decreed by the trial Judge on 31st of May, 1956. The Plaintiff had also claimed a sum of Rs 100/ - as damages. This portion of the claim was disallowed by the trial Judge. From the decree of the trial Judge both sides preferred appeals. The lower appellate Court dismissed the appeal of Inder so far as it related to the claim for damages. The Defendants' appeal was allowed and the decree for exclusive possession was converted into one for joint possession.

(2.) FEELING aggrieved the Plaintiff has come to this Court in -appeal. It is contended by Mr. Mahajan, the learned Counsel for the Plaintiff, that the parties to the litigation being co -owners exclusive possession of one cannot be disturbed without a partition being effected. A decree for joint possession, according to the learned Counsel, would virtually amount to his ouster from the land which the Plaintiff owns jointly with the Defendants. As stated in the plaint, the Plaintiff was in lawful possession of the land of which he had been forcibly dispossessed in June, 1954. The Plaintiff claimed exclusive possession of the land from which he had been so dispossessed and on the concurrent findings of the Courts below that the land was held by the Plaintiff and Defendants as co -owners a decree for exclusive possession should have been allowed as a matter of course. In Karam Chand v. Dr. Karam Dad Khan, (1938) 40 P.L.R. 653, it was held by Tek chand that "in a case of a joint khata, where one co -sharer - has been in exclusive possession of a portion of the joint land, which does not exceed his share in the entire holding, another co -sharer cannot dispossess him against his will from the portion of which he had been in possession." There is no finding that the Plaintiff had been in possession of land which is in excess of his share in the entire holding and on the principle enunciated in this authority he is clearly entitled to a decree for exclusive possession of the land of which he has been dispossessed. This principle was reaffirmed in a subsequent Division Bench judgment of Tek Chand and Bhide JJ. in Sukh Dev v. Parsi, I.L.R. 22 Lah 583. The principle was extended even to sales which were made by co -sharers - and it was held that "if a co -sharer is in exclusive possession of any portion of an undivided holding, not exceeding his own share, he cannot be disturbed in his possession until partition. Such a co -sharer can transfer that portion and the transferee is entitled to remain in possession of such portion subject to adjustment of the rights of the other co -sharers therein at the time of partition."

(3.) THERE seems to be no doubt in my mind that the Plaintiff being in exclusive possession of the suit land is entitled to remain there as such till a partition has been effected. In this view of the matter, this appeal must succeed and the suit of the Plaintiff decreed. As a concession on the point had been made before the lower appellate Court which based its decision on this admission, I would make no order as to costs of this appeal.