AJMER SINGH Vs. SHAMSHER SINGH

JUDGEMENT

(1.) THE significant question necessitating the admission of this appeal for bearing by a Full Bench is whether one co -. sharer can institute and maintain a suit for possession against a trespasser in respect of the entire property (irrespective of his own share therein) without impleading the other co-shares. Equally on the anvil is the correctness of the ratio of the Division Bench in Smt. Daya Kaur v. Jaswant Singh. 19711 cur LJ 1001: (AIR 1972 Punj 355), holding that in a decree in respect of his share only.

(2.) SINCE the aforesaid issue is admittedly the only one pressed in this Regular Second Appeal, it is unnecessary to advert to the facts in any great detail. Suffice it to mention that the plaintiff respondents had brought the suit for possession of land measuring 98 Kanals 5 Marlas which originally belonged to one Gurmukh Singh who had died issueless. The stand of the plaintiffs was that they and Balbir Singh defendant 2. being the nearest agnates of Gurmukh Singh were co-heirs and were therefore, entitled to recover possession from defendant 1. Ajmer Singh. who was a mere trespasser thereon. The suit was contested only by defendant 1 Ajmer Singh, whilst Balbir Singh defendant 2 field a separate written statement in which he admitted the claim of the plaintiffs. The trial Court decreed the suit to the extent of half share to the property holding that the plaintiffs could bring the suit regarding their share only. The plaintiff-respondents and defendant-appellant Ajmer Singh appealed against the said judgment. The appellate Court dismissed the appeal of Ajmer Singh defendant 1 appeal of Ajmer Singh defendant 1 and allowing the appeal of the plaintiff-respondents held that they could bring the suit for the whole of the property and consequently decreed the suit accordingly.

(3.) THE present appeal came up for admission before my learned brother R. N. Mittal, J. The only contention raised on behalf of the appellants was that the suit could be decreed qua the half share of the plaintiffs alone. In support of this contention, reliance was placed on Smt. Daya Kaur's case (AIR 1972 Punjab355) (supra ). Noticing that the main-stream of precedent was wholly contrary to Smt. Daya Kaur's case (supra) the appeal was admitted for hearing by a Full Bench.