JAGARNATH OJHA Vs. RAM PHAL

JUDGEMENT

(1.) THE only question in this appeal is whether a plaintiff, who had never been in possession but was entitled to possession jointly with other persons, could be granted a decree for joint possession. THE facts of the case are fully set forth in the order of our brother Chamier, by which he referred this case to a Bench of two Judges. THEy are briefly these: THE property in suit, which is a share of zamindari, originally belonged to one Lachmi Ojha. It passed on his death to his widow, and on the widow s death to the plaintiff, to the respondents, and to others. As the plaintiff did not obtain possession of the property, he brought the suit out of which this appeal has arisen for possession jointly with the defendants. He also-claimed damages, but that part of the claim has not been pressed in this Court. Other reliefs were asked for with which we are not concerned in this appeal. THE court of first instance decreed a part of the claim, but refused to grant a decree for joint possession. This decree was affirmed by the lower appellate court. THE contention before us is that a decree for joint possession ought to have been passed in the plaintiff s favour. For the opposite contention reliance is placed upon the decision of a Bench of this Court in Phani Singh v. Nawab Singh (1906) I.L.R. 28 All. 161. That case, no doubt, supports the view taken by the courts below, but with great deference we are unable to agree with it. In the Full Bench case of Bhairon Rai v. Saran Rai (1904) I.L.R. 26 All. 588. it was held that where the plaintiff had been ousted from joint possession by the defendants, a decree could be made in his favour for restoration to joint possession. We fail to see that on principle there is any distinction between the case of a person who was in joint possession but was subsequently dispossessed, and the case of a person who was entitled to joint possession, but had not obtained such possession. As pointed out by our brother Chamier, an action for joint possession is a well-known form of action, both in England and in this country, and before the decision of the case of Rahman Chaudhri v. Salamat Chaudhri Weekly Notes 1901 p. 48 decrees were always made for such possession. THEre may, no doubt, be cases in which the court may not deem it reasonable in the interests of all the parties concerned to make a decree for joint possession. An instance of such a case is that of Watson & Co. v. Ram Chand Dutt (1890) I.L.R., 18 Calc., 10. Another case of the same kind is that of Bhola Nath v. M. Buskin Weekly Notes 1894 p. 127. That a decree for joint possession can be made has until recently in this Court always been regarded as settled law, but if any doubt existed on the point, it has been removed by the clear provisions of Order XXI, Rule 35, of the present Code of Civil Procedure. In our opinion the circumstances of the present case are such as to entitle the plaintiff to a decree for joint possession. THE courts below were, therefore, wrong in not granting him such a decree. We accordingly allow the appeal, and vary the decree of the courts below by adding to the decree made by those courts a decree in the plaintiff s favour for joint possession of the property decreed. THE appellant will have his costs in this Court and in the courts below.