EKABBAR ALI SHAH Vs. SHAIK KON ALI

JUDGEMENT

(1.) This appeal arises out of a suit for khas possession of a piece of land upon a declaration of plaintiffs jote right thereto. The plaintiffs alleged that the said land together with other lands belonged to one Ishan Chandra Lahiri in his zemindari right and was in his exclusive possession, and that they took settlement of jote right therein from him and thereafter were wrongfully dispossessed by the defendants. The contesting defendant on the other hand alleged that Ishan Chandra Lahiri had no zemindari right in the said land nor was he in possession thereof and that the land formed part of a chawk belonging to him and his predecessors and had been in possession for three generations. The Trial Court found that the chawk in question in which the. disputed land was included had been in the joint possession of the said Ishan Chandra Lahiri, the contesting defendant and other co-sharers and that Ishan Lahiri had only l/6 share therein, and accordingly it gave a decree to the plaintiffs for joint possession with the defendants to the extent of the 1/6 share of Ishan Lahiri.

(2.) Against this decision the plaintiffs and the contesting defendant filed an appeal and a cross-appeal. The plaintiffs appeal was based upon the grounds that as the disputed land had been in exclusive possession of Ishan Lahiri and as the plaintiffs were bona fide tenants under him,, they were entitled to the exclusive possession of the land and also that there having been no issue framed as to the share of Ishan Lahiri in the land in suit the determination of an l/6 share in his favour was wrong. The contesting defendant's cross-appeal was based upon his alleged right to the 16 annas of the chawk and exclusive possession thereof for upwards of twelve years. The learned Subordinate Judge held that Ishan Lahiri was in separate possession of the disputed plot, but that possession was not adverse to the contesting defendant or the other co-sharers, and that Ishan Lahiri as well as the contesting defendant were in separate possession of separate parcels of joint properties and applying the equitable principle that one co-sharer cannot disturb the possession of the other without a suit for partition decreed the plaintiffs suit for khas possession.

(3.) The principle relied upon by the learned Judge is well settled and has been laid down in a long series of cases; but in my opinion, it cannot be called in aid unless it is found that the co- sharers are in possession of separate portions by mutual arrangement for the sake of convenience. Unless such mutual arrangement is proved the co-sharer who is dispossessed cannot recover possession, and his only remedy lies in a suit for partition. The plaintiffs, in my judgment, cannot have higher equities than their lessor whose only remedy lies in a suit for partition. I have been referred on behalf of the respondent to the decision of this Court in Shiam Lal Saha V/s. Fulia A.I.R. 1922 Cal. 147 but it will be seen that; the decision in that case was based on the finding that the co-sharers were each in possession of some property exclusively for convenience, and the cases of Kumudini Mazumdar V/s. Rasik Lal Mazumdar (1906-07) 11 C.W.N. 517 and Jagannath Prasad V/s. Badri Prasad (1912) 34 All. 113, which that decision purports to follow, were also cases in which a mutual arrangement was proved. As no such arrangement has been proved or even alleged in the present case, the equitable principle above referred to does not apply here. The view taken by the learned Munsiff seems to me to have been the right one; but as the plaintiffs themselves dispute the share which was found in favour of their lessor, Ishan Lahiri, and they claim exclusive possession and not joint possession and claim it on the footing that their lessor was entitled to the 16 annas share in the land and was in exclusive possession thereof, the plaintiffs are not entitled to any relief in this suit.