APPAYYA BANGA (DEAD) Vs. KORAGA ALIAS SANTHAPPA KAJAVA

JUDGEMENT

(1.) The defendant is the appellant. This second appeal arises out of a suit instituted by the plaintiff to recover possession of the plaint item 1 with mesne profits or in the alternative for partition of plaint items 1 and 2 into two equal shares and for delivery of one such share to him with mesne profits. The plaintiff's case is that plaint items 1 to 3 belonged to his father and his two brothers, the defendant and one Tammayya Banga, that there was an oral division of these items between the three brothers, in which item 1 fell to the plaintiff's father's share, item 2 to the defendant and item 3 to Tammayya Banga. Tammayya Banga has been in separate enjoyment of his share of the property. As regards item 1, the plaintiff alleged that when his father became the ejman of the family the defendant was allowed to remain in possession of that item on behalf of his father, and as his father's right had been sold to him he now claims possession of that item or a half share of items 1 and 2 as the defendant has mixed up the two items. The defendant, on the other hand, contended that all the properties were gifted to his mother and as her surviving son he is now absolutely entitled to the properties by right of survivorship. He also disputed the validity of the assignment of the plaintiff.

(2.) The Lower Courts found that there was an oral partition between the plaintiff's father and the other two brothers as alleged by the plaintiff and that his father's share was validly assigned to him. It was also found that the plaintiff's father put the defendant in possession of item 1 also, that he remained in possession of both items 1 and 2 and while so "he mixed up his share with plaintiff's father's share". In consequence of these findings and as it was not possible to identify the item which belonged to his father the Lower Courts gave a decree for partition of both the items 1 and 2 into two equal shares and for delivery of one share! to the plaintiff. I may state here that no plea of adverse possession to the plaintiff's father's share of the property was set up by the defendant. The defendant admitted that he was in possession of the two items but stated that he had been holding them under a maintenance allotment which he has not been able to prove. It is clear that the defendant has not been able to put forward any valid title to the plaint item 1 and it is also clear that possession of the plaint item 1 from the plaintiff's father is admitted by him. The question is, in such circumstances, whether the plaintiff is entitled to get partition of both the items on the ground that he is not able to identify item 1 as the defendant has mixed up his share with the plaintiff's share, which, in other words, means that the defendant has obliterated the boundaries of the two items and made it impossible for the plaintiff to identify his share.

(3.) Mr. Sitarama Rao's argument for the appellant shortly stated is this--that, in a suit for ejectment, so long as the plaintiff is unable to identify the property from which he desires to eject the defendant, he is not entitled to a decree for partition and that the Courts have no jurisdiction to grant the plaintiff's prayer in such a case "unless some equity is super-induced by the act of the parties". In support of this proposition reliance has been placed on the leading decision in Wake v. Conyeys (1759) 1 W. and T.L.C. 167 : 1 Eden. 331 and the subsequent cases Speer V/s. Crawter (1817) 55 E.R. 997 : 2 Mer. 410 and Miller V/s. Warmington (1820) 37 E.R. 452 : 1 Jac. & W. 484. These cases have been referred to in Kavasji V/s. Hormasji (1904) I.L.R. 29 B. 73. Reference has also been made to O Hara V/s. Strange (1847) 11 Ir. Eq. Cas. 262 and Story's Equity Jurisdiction, Vol.. II, Section 840 and Hunt on Boundaries 256, etc. On the strength of these authorities it is argued that confusion of boundaries per se is no ground for interference by the Court and that the plaintiff in this case is not entitled to claim any relief as he is not able to show that the defendant is his tenant, agent or bailee or is a person in a fiduciary position towards the plaintiff which makes it incumbent on him to co- operate with him in re-establishing his title. It is admitted that the plaintiff and the defendant are not joint tenants or tenants-in-common or co-parceners. The question is whether in such circumstances the plaintiff is entitled to the relief of partition granted to him by the Lower Courts.