RAMPAT SINGH Vs. BNAGESHAR SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for ejectment and damages. The respondents alleged that they were zamindars of certain plots and a certain area was their khudkasht and that the defendants had taken possession of the same without their consent. The learned District Judge in the lower Appellate Court has held that the plaintiffs are entitled to eject the defendants from an area of .06 acres and he has awarded the sum of Rupees 1-8-0 as damages against the defendants. In appeal it was contended that the suit was barred by the provisions of Secs.266 and 44, Agra Tenancy Act. So far as Section 266 is concerned in our judgment the suit is not barred. It is true that the plaintiffs have not impleaded the other cosharers in the mahal in which the plots in dispute are situated, but the plaintiffs are the only persons who are interested in the khudkasht rights which they seek to protect in the present suit. Section 266, Agra Tenancy Act, enjoins that where there are two or more cosharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on behalf of them all.

(2.) Now so far as the khudkasht rights are concerned, i.e., the right to be in possession and to cultivate the plots the plaintiffs are the only persons with any right, title or interest. It is true that they have a right, title and interest in the plots which they share along with the other cosharers but they and they alone are entitled to be in possession of the plots and to cultivate the same as their khudkasht. It is unnecessary therefore that they should implead the other co- sharers in a suit in which they seek to protect that particular right. This is especially so where that particular interest is being invaded by other cosharers.

(3.) So far as the appellant's plea based upon Section 44, Agra Tenancy Act, is concerned it is sufficient to say that from the information upon the record it would appear that the plaintiffs are sir holders in respect of the area now in dispute. That area was recorded as khudkasht as far back as 1912. In view of the provisions of Section 4(d), Agra Tenancy Act, therefore it must have become sir long before the institution of the present suit. Learned counsel for the appellants urged however that in the interval between 1912 and the institution of this suit the area in dispute might have lost its character as khudkasht and at a later stage after the passing of the Agra Tenancy Act of 1926 recovered that character. This is within the bounds of possibility but whether the character of the land changed as is suggested or not is a pure question of fact which we cannot allow the appellants to raise at this stage. We are entitled to conclude that so far as the area in dispute is concerned the plaintiffs have sir rights. According to Section 4, Agra Tenancy Act, sir right means the sum of all the special rights conferred on sir holders by this Act and by the United Provinces Land Revenue Act, 1901, and includes the right to exclusive possession of the sir against co-sharers of the sir holders in the proprietary right, subject to a liability to account for profits.