DHIAN SINGH Vs. SURJAN SINGH

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the Senior Subordinate Judge, Ambala, exercising enhanced appellate powers, accepting the first appeal against the decision of the trial court filed by the plaintiffs and in the consequence granting a decree for possessing in their favour.

(2.) Plaintiffs Surjan Singh and his brothers brought a suit for possession of the land in dispute measuring 8 Kanals on the pea that they are mortgagees of this land, but defendant No. 3 Dhian Singh has taken forcible possession thereof. Dhian Singh contested the suit denying the plaintiff's status as mortgagees of the land.The learned trial court found that the plaintiffs are mortgagees of 69/99 share of this land and that Dhian Singh is occupying the whole land as a trespasser. It was, however, held that plaintiffs being mortgagees of a share of the disputed land are not entitled to claim possession from the trespasser without getting their share separated by partition. Consequent upon these findings the plaintiffs' suit was dismissed. The plaintiffs preferred an appeal against the judgment and decree of the trial court which was allowed by the lower appellate court holding that a trespasser can be ousted from land even by one of the co-sharers. By the impugned order of reversal the judgment and decree of the trial court were set aside and a decree for possession was passed in plaintiffs' favour.

(3.) The proved facts are that Dhian Singh appellant is occupying the land in dispute as a trespasser. The plaintiffs-respondents are mortgagees of 69/99 share in this land. The only point of controversy is :- whether a mortgagee of a share in land can seek possession of the whole land from a trespasser. The learned lower appellate court while answering this question in the affirmative placed reliance on a Full Bench of Patna High Court in Ram Niranjan Das v Lok Nath Mandal, A.I.R. 1970 Patna 1. In this judgment the proposition of law laid down is that a possessory title when confronted with a better title, will yield place to the better title which must prevail over a trespasser's possessory title pure and simple. A co-sharer having an interest in a property jointly with others, is apparently a person with a better title than a trespasser, and so he can institute a suit for recovery of possession of land, held by him along with other persons, against a trespasser and can obtain a decree for possession of the entire area without affecting the rights of other co-owners.