JAGDISHWARI DEVI Vs. CHANDRIKA KUER

JUDGEMENT

(1.) In the suit which is the subject-matter of this appeal the plaintiff asked for a declaration of title with regard to plot 730, khata No. 90 of village Bahuara, and also for partition of the plaintiff's share in this plot. The plaintiff alleged that she had two annas eight pies share in the touzi which was in joint possession of the 16 annas landlords. Plot 730 was recorded as Ghair Mazrua Malik. It was alleged on behalf of the plaintiff that there was a canal irrigation dispute between herself and defendant No. 1. Defendant No. 1, Mahabir Prasad, claimed before the Executive Engineer that he had taken raiyati settlement of the plot from all the co-sharers including the plaintiff and prayed that his name should be entered in respect of this plot in the Canal Department. The plaintiff stated before the Executive Engineer that she had made no settlement of her share in the plot with Mahabir Prasad. The Executive-Engineer rejected the claim of the plaintiff and his order was affirmed by the Commissioner of the Division. Thereafter the plaintiff instituted the present suit. Defendants 1 and 2 controverted the allegation of the plaintiff. They alleged that they had taken settlement of the entire plot from all the co-sharers including the plaintiff. Defendants 1 and 2 claimed that they were settled raiyats of the plot and they had acquired right of occupancy in the disputed plot and there had been complete ouster of the plaintiff. The other defendants, who are co-sharers, did not contest the suit. The trial Court accepted the case of the plaintiff and grafted a decree to the effect that "the plaintiff will recover possession after partition and dakhaldehani". The decree has been affirmed by the Subordinate Judge of Arrah and by Mr. Justice C.P. Sinha in second appeal.

(2.) Defendants 1 and 2 have preferred this appeal under the Letters Patent against the decision of Mr. Justice C.P. Sinha.

(3.) In support of this appeal counsel submitted in the first place that defendants 1 and 2 were in possession of Plot 730 in the status of co-sharer landlords and the plaintiff being co-sharer landlord herself was not competent to bring a suit for ejectment. It was argued that the only remedy of the plaintiff was to bring a suit for Partition of all the lands held in common by the co-sharer landlords, and the plaintiff was not entitled to be granted a decree for ejectment of defendants 1 and 2. In support of this proposition learned counsel placed reliance on Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy, AIR 1924 PC 144 (A), where it was held that partition was the only remedy which a co-sharer has if he and the other co-sharers cannot agree as to how the lands which they hold in common should be managed. It was also held that each co-sharer was entitled to cultivate in his own interest in a proper and husband like manner any part of the lands which was not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. It was also held by the Judicial Committee in that case that such an exclusive use of the lands held in common by a co-sharer was not an ouster of his co-sharers from their proprietary right. Learned counsel on behalf of the appellants also relied on Biswanath Missir v. Ram Prasad Tewari, AIR 1931 Pat 389 (B). But we do not think that these decisions apply to the facts of the present case. The suit in the present case was brought by the plaintiff against defendants 1 and 2 not in the character of co-sharer landlords but in the character of alleged lessees of the disputed plot. It is true, as the learned counsel for the appellants urged, that defendants 1 and 2 are also co-sharer landlords to the extent of 2 annas 8 pies share, but the specific case of defendants 1 and 2 in the written statement was that they were in possession of plot 730 in the character of lessees and they had taken settlement from all the co-sharer landlords including the plaintiff and further that defendants 1 and 2 were settled raiyats of the plot and so had acquired right of occupancy and there had been complete ouster of the plaintiff. That was the case set up by defendants 1 and 2 in their written statement. It is obvious, therefore, that the principle of these two authorities -- AIR 1924 PC 144 (A) and AIR 1931 Pat 389 (B), has no application to the present case. The gist of the present case is that it is a suit by a co-proprietor for ejectment of a person who had taken settlement from all the other co-proprietors. It would be mentioned at this stage that on the question of settlement the Courts of fact have found that defendants 1 and 2 have not proved settlement of the land by the plaintiff with regard to her share. Upon this finding of fact the question arises in law whether the plaintiff is entitled to get a decree for ejectment against defendants 1 and 2 with regard to the disputed plot. We have already stated that the plaintiff had brought the suit against defendants 1 and 2 in the character of lessees and, therefore, the plaintiff is entitled to be granted a decree in ejectment. But we consider that the decree passed by the trial Court in this case and affirmed by the High Court in second appeal is somewhat erroneous and requires to be modified. It is admitted that the plaintiff has only 2 annas 8 pies share in the disputed plot, defendants 1 and 2 have 2 annas 8 pies share and the balance of the milkiyat share to the extent of 10 annas 8 pies is owned by defendants 5 to 18, The proper decree to be passed in this case is a decree for joint possession in favour of the plaintiff and other co-sharer landlords as against defendants 1 and 2. The plaintiff is also entitled to a declaration that she has 2 annas 8 pies un divided share in the disputed plot.