JAGABANDHU KUNDU Vs. RAJMOHAN PAL

JUDGEMENT

(1.) This is an appeal from a decision of the 5 Subordinate Judge of Dacca whereby he modified a decision of the Munsif of Munshiganj. The plaintiff is a co-sharer in the maliki interest of a small piece of land in area about one-third of an acre and he has a 3 annas 4 gundas share. So far as this particular land now in question is concerned, it appears that it was the subject-matter of a non-transferable occupancy right in defendant No. 11. The original raiyat transferred it or purported so to do to the first defendant and the case has been argued on the footing that the first defendant is merely a benamidar transferree for a co-sharer of the plaintiff, by name Hari Binode. It appears that the transfer was in November 1918, and that, in May of 1919, Hari Binode settled the land with the present appellants, defendants Nos. 2 and 3. It appears, further, so far as we can gather, that in or about January of 1919, Hari Binode excavated a tank and dug certain ditches on the property and that, in May 1919, defendants 2 and 3 erected certain structures for use as jute godowns, the intention being to use this plot of land not for agricultural purposes but for the purposes in connexion with the storage of jute. In these circumstances, about a month after defendants Nos. 2 and 3 had taken settlement the plaintiff brought this suit in June 1919, claiming to the extent of his share the right to eject the defendants from the land, that is to say, claiming a decree for joint possession with the defendants to the extent of his share.

(2.) The first point urged by the appellants was successful before the trial Judge. That point is this: that in respect of other lands wherein the plaintiff and Hari Binode were co-sharers, these two were settled in non-transferable right, and that of these the plaintiff has taken a transfer from the tenants and is now in possession. Accordingly, it is said that this gives rise in the present suit to an equitable defence on the part of the defendants Nos. 2 and 3; that is to say, that they are entitled to object that, in consideration that the plaintiff is in actual possession of more lands than are referable to his share, he cannot, as regards this land, get a decree for joint possession, but may be limited to his mere rights to bring a suit for partition of all the common properties.

(3.) With regard to this matter, one has to observe that the principle that, when one co-sharer landlord takes a transfer of a non-transferable holding from a tenant, he may be treated by the other co-sharer landlords as a trespasser, has been laid down in this Court more than once, and the principle itself is not disputed by the learned Vakil who appears for the appellants. The case of Dilbar Sardar V/s. Hosein Ali Bepari (1899) 26 Cal. 353 and the case of Lakhi Kant V/s. Balabhadra Prosad (1914) 19 C.L.J. 400 are sufficient authorities.