GIRWAR Vs. BHAJNI

JUDGEMENT

(1.) This second appeal has been filed by the unsuccessful plaintiffs whose suit for ejectment of trespassers from the land in dispute was decreed by the trial court, the first appellate court reversing the same in appeal.

(2.) We have heard the learned counsel for the parties and have examined the record as well. The appellants based their claim on the ground that the parties to the suit were Biswadars of village Gopalpura, Tehsil Lachmangarh of Alwar district, that Khasra No. 325 measuring 4 Bighas and 3 Biswas had been in the possession of the appellants and that the respondents dispossessed them wrongfully. The respondents pleaded that the land in dispute was included within the Shamlat Deh -area, that its proprietory rights vested in the entire body of Biswadars, that it was used for grazing cattle and that it was never cultivated. The trial court on a consideration of the evidence led by the parties come to the conclusion that the appellants had been in possession of the disputed land and as they were dispossessed wrongfully by the defendants they were entitled to be reinstated in possession. The respondents were accordingly held as tres -passers by the trial court. The learned Additional Commissioner in appeal held that as the parties were joint owners of the disputed land the respondents had as much right to occupy the same as the appellants and hence they could not legally be branded as tres -passers. On this ground the appeal was allowed and the decree and judgment of the trial court were set aside.

(3.) In this second appeal it has been argued before us by the learned counsel for the appellants that as his clients were proved to have been in possession of the disputed land for a number of years they were entitled to recover their possession on the basis of their previous possession and subsequent dis -possession. This, however, is not a correct proposition in the eye of law. We may first refer to a Full Bench decision of the Rajasthan High Court Shatana vs. The Rajasthan Board of Revenue (A.I.R 1958 Rajasthan 164=1958 RLW. 152). In that case the following question was referred to the Full Bench for decision. "Whether relief under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance is available to a joint tenant who is not in exclusive possession of any particular portion of the land but is jointly in possession of the whole holding along with other joint tenants, "Wanchoo C.J. while delivering the judgment of the court was pleased to observe that the question had to be determined with reference to the manner in which reinstatement could be allowed to the person seeking remedy under sec. 7 of the Ordinance. Sub -sec. 4 of sec. 7 of the Ordinance provided that an order for reinstatement shall be enforced as nearly as may be in the same manner as if it were a decree for ejectment, regard however not being had to the time, if any, prescribed for the enforcement of such decree. The procedure for enforcement of a decree for ejectment is usually the same as is provided in O.31, R. 35 (sub -rule 1) i.e. the person to be ejected is actually dispossessed from the property and the person in whose favour the decree is passed is put in actual possession of the property. Such a provision is to be found in sec. 185 of the Rajas -than Tenancy Act as well. Therefore, where an order for reinstatement is to be enforced as nearly as may be in the same manner as if it were a decree for ejectment, there is a clear direction that the person reinstated shall be put back in possession and the person who has dispossessed him of the land shall in his turn be dispossessed. This being the relief it followed that a co -tenant who was ejected by another co -tenant could have no remedy under that section for the applying co -tenant could not be put altogether in possession and the co -tenant who had dispossessed him could not be ejected from the holding or any part thereof as every co -tenant was entitled to possession over every inch of land unless a partition or division of a holding was carried out. As observed by Sharma J. in 1954 RLW, 723 the exclusive possession of a co -sharer does not amount to adverse possession against other co -sharers without any over act of ouster and where no such ouster is proved and the only thing which has been shown is that the defendants had been in exclusive possession of the property and were enjoying the usufruct thereof, it was held that this cannot create any right in them by adverse possession to the detriment of the plaintiffs right. In A.I.R. 1924 P.C. 144 their Lordships of the Privy Council were pleased to observe as below: - - "Where lands in India are held in common by co -sharers, each co -sharer iff entitled to cultivate in his own interest in a proper and husband like manner any part of the land which is not being cultivated by any of his co -sharers but he is liable to pay to his co -sharers compensation in respect of such exclusive use of lands Such an exclusive use of land held in common by a co -sharer is not an ouster of his co -sharers from their proprietary rights as co -sharers in the land. When co -sharers cannot agree as to how any lands held by them in common may be used, the remedy of any co - sharer who objects to the exclusive use by another co -sharer of land held in common is to obtain a partition of the lands."