BIRDHILAL Vs. MATHURALAL

JUDGEMENT

(1.) THIS revision petition arises out of the order passed by the Revenue Appellate Authority Kota dated the 30th May, 1962. Briefly, the facts of the case are that the parties to the proceedings are the joint khatedar tenants of khasra No. 311 consisting of 14 bighas and 12 biswas in village Ganeshganj, Tehsil Itawa, District Kota. The plaintiff petitioner filed a suit for permanent injunction against the defendant respondents claiming exclusive possession of holding in dispute restraining the defendants from interfering with his possession. The petitioner claimed that the holding in dispute was in his cultivatory possession for a long time and that the respondents were threatening to cultivate his holding. The respondents claim that they were the co-tenants of the holding in dispute and as such in the joint possession of the holding, the plaintiff petitioner can only file a suit for partition and cannot claim permanent injunction. The trial Court on the basis of the entries in the khasra girdawari came to the conclusion that the plaintiff petitioner was exclusively cultivating the holding in question and passed a temporary injunction in favour of the petitioners. On appeal by the respondents before the Revenue Appellate Authority the order of the trial Court was reversed on the ground that the respondents being co-tenants were in joint possession of the holding in dispute and as such it cannot be assumed that the petitioner alone was in exclusive possession of the holding and allowed the appeal and the order of the trial Court reversed, hence this revision.

(2.) IT was contended by the counsel for the petitioner that the petitioner was in exclusive possession of the holding in dispute and till the joint tenancy was divided the petitioner was entitled to the enjoyment of the holding and the respondents by restraining from interfering with his possession. In support he cited R. R. D. 1959 page 7 and R. R. D. 1960 page 80. The counsel for the respondent repelled this argument by saying that since co-tenancy was admitted by the plaintiff petitioner, there could be no right of the petitioner to the exclusive possession of the holding in dispute. The co-tenants were jointly in possession of the holding and they cannot be restrained by injunction from the enjoyment of that holding. No right by way of adverse possession could be created in favour of one co-tenant by exclusive enjoyment of the holding unless it is by way of ouster. In support he cited R. L. W. 1954 page 723.