ATAL BAJADAR Vs. MADAN DAI

JUDGEMENT

(1.) It has been determined by the lower Court that the plaintiff is entitled to a Mannas share in the property, but that he is not entitled to khas possession of the land even to the extent of this share. The mere fact that there are tenants on the land, who have been settled there by the other co-sharers, is not itself a sufficient answer to the claim for joint khas possession, unless in addition rights have been acquired which would constitute a complete defence, as, for instance, the acquisition of an occupancy-right. In the circumstances, we think that it would be better that the plaintiffs right to joint, khas possession should be determined in this suit, We must, therefore, reverse the decree and send back the case to the lower Appellate Court for re-consideration and in as doing, we would draw attention to those cases of which Hulodhur Sen v. Gooroodass Roy 20 W.R. 126; Naranbhai Vaghjibhai v. Ranchod Premchand 26 B. 141 may be cited as instances.

(2.) It will be open to the defendants to raise any objection that may seem proper to them, as an answer to the plaintiff s claim. Hub if those objections do not prevail, then we think, in the circumstances of this case, the right to joint possession should be decreed.

(3.) The costs of this appeal and also in the lower Appellate Court will abide the result.