AMBIKA PRASAD SINGH Vs. RAM KISHEN BARNAWAR

JUDGEMENT

(1.) This is a plaintiff's appeal. The suit was for joint possession over certain plots of land belonging to the defendants and the plaintiffs jointly. Other reliefs were prayed for, but these were not granted and do not form the subject of the present appeal. The First Court granted the plaintiffs a decree for joint possession, but the lower Appellate Court, while holding in the plaintiffs favour that they were entitled as joint owners, granted a decree for joint possession in respect of certain plots only. In respect of others it found that the defendants had been in possession for a long time and held that it would, therefore, be improper to give actual joint possession to the plaintiffs. It accordingly modified the decree of the lower Court in respect of these plots.

(2.) The learned Advocate for the appellants relies on a ruling of this Court in Jagarnath Ojha V/s. Ram Phal 13 Ind. Cas. 79 : 34 A. 150 : 8 A.L.J. 1312 in which it was held that a plaintiff who is entitled to possession jointly with other persons can be granted a decree for joint possession whether the plaintiff was originally in joint possession and was subsequently dispossessed or whether he had never been in possession. It is pleaded that all that the appellants want is to be allowed to execute their decree as provided in Order XXI, Rule 35(2) by delivery of symbolical possession, and that the result of the lower Appellate Court's refusal to grant them a decree will be that if they apply for partition or for profits, these will be denied to them.

(3.) On the other side it is contended that, this suit is no more than an ingenious method of depriving the respondents of their khudkasht rights. They do not deny the appellants joint proprietary title in the land but maintain that their proper remedy, if the respondents are in possession of more than their proportionate share, was to apply for partition or bring a suit for profits. If the present appeal is allowed it will result in the loss by the respondents of a part of the khudkasht rights which they have acquired by long cultivating possession of the plots in suit.