G NARAYANASAWMI NAIDU GARU Vs. TIRUMALASETTI SUBBAYA

JUDGEMENT

(1.) In this case, the Receiver of Nidavole Estate seeks to recover possession of a holding in the occupation of defendants Nos. 1 and 2. The land was held by one Rangam till his death in 1897 or in 1898. It descended on his death to his two sons, Sobhandhari (now dead) and the first defendant. The second defendant is the son of Sobhandhari. After Rangam s death, Sobhandhari executed a muchilika in favour of the Estate acknowledging that it was kammatham land in which he had no occupancy right. Subsequently, the Receiver, treating the holding as belonging to Sobhandhari alone, instituted a suit against him to compel him to accept a patta. There was a decree in favour of the Estate and as Sobhandhari failed to accept a patta and executed a muchilika, an order, under Section 10 of the Rent Recovery Act, VIII of 1865, was passed against him. There is some dispute as to whether the Estate actually obtained delivery of possession in pursuance of the Collector s order. It appears clear, however, that the present defendants Nos. 1 and 2 were not actually dispossessed; and the plaintiff admits the Estate was not able to cultivate the land. The question fought out between the Estate and defendants Nos. 1 and 2 in the lower Courts was whether the land was ordinary jeroyti land in which Rangam the ryot in possession had occupancy, right or the kammatham land of the Estate. Both Courts have found that the plaintiff failed to prove that it was kammatham land. We see no legal objection to this finding and must therefore, accept it.

(2.) A question of law has been raised and argued in this Court. It is contended that the Estate, having obtained a decree against Sobhandhari and ejected him from possession so far as it could, it is entitled to recover his share. It was at first argued that the share, which the plaintiff would be entitled to recover, was one half, but on its being pointed out that there was nothing to show that Sobhandhari represented his son, the 2nd defendant, who was joint owner with him of the land, in the ejectment proceedings and that the -patta was tendered to Sobhandhari as if he was solely entitled to the land, the claim has been pressed with respect to the one fourth share which Sobhandhari would admittedly have in the land. The argument is that the plaintiff is in the same position as if Sobhandhari had conveyed his one fourth share to the estate or his share had been seized by means of attachment. Assuming this position to be correct for a moment, a suit to recover the one-fourth share purchased by the plaintiff, without instituting a suit for general partition of the properties belonging to the defendant s family, would not ordinarily be maintainable. This reposition may be taken to be fairly well settled. There may be exceptional circumstances in which a prayer for general partition may not be insisted on by the Courts: but no exceptional circumstances were pointed out in this case, for the obvious reason that the suit was framed for recovering the whole land on the ground that it was kammatham property and there was no prayer to recover Sobhandhari s share, There may be equities as between Sobhandhari and the defendants which would make it inequitable to award the plaintiff Sobhandhari s one-fourth share. A decree in ejectment for one-fourth of the land cannot, therefore, be given.

(3.) It is then argued that the plaintiff may be given a decree for joint possession. It is, no doubt, open to the Court, where such a course is regarded as proper, to give a decree for joint enjoyment to a plaintiff who is entitled to seek for partition; but the passing of such a decree is discretionary with the Court. I am strongly disinclined to give an alienee, from one member of a joint Hindu family, joint possession alone with the other members of the property which he obtains by the alienatian. The plaintiff did not ask for joint possession in the plaint in this suit. I do not think he is entitled to a decree for joint possession. He must be left to his remedy in a suit for a partition.