NALINI KUMAR ROY Vs. KAMINI KUMAR RAY

JUDGEMENT

(1.) THIS appeal is by defendant 1. The plaintiff and this defendant had a share in a certain separate account in a certain taluk. They leased the land in question to pro forma defendants 2 to 6 who sold it to defendant 1 in 1328. The plaintiff then instituted the present suit to establish his title and to get joint possession with defendant 1. The munsif decreed the suit. There was an appeal to the District Court and the learned Subordinate Judge who heard the appeal dismissed it. Defendant 1 has therefore appealed to this Court. The chief point taken on behalf of the appellant is that the plaintiff cannot get any relief unless he makes all the proprietors of the Taluk parties to the suit. On behalf of the respondent Mr. De has contended that this argument really confuses joint owners with joint landlords. I am clearly of opinion that this is correct. The only persons among the owners with whom there was any relationship of landlord and tenant on the part of defendants 2 to 6 were the appellant and the respondent. The proprietors of the taluk may for their own convenience possess the joint land as they please. They may either cultivate themselves or through their servants or they may let it to tenants. In this case the appellant and the respondent let it to tenants. The result of the sale, by defendants 2 to 6 is that the tenancy has ceased to exist and the appellant and the respondent are now entitled to hold the land in khas possession. It is perfectly true that any of their cosharers may institute a suit for partition and it is also quite possible that as a result of such a suit this particular land would be allotted to the share of some other proprietors; but until a suit for partition is instituted the cosharers of the appellant and respondent have no interest in the matter and are not necessary parties to the suit.

(2.) IT is also contended that the suit must fail because the plaintiff has failed to prove that this land was included in the separate account. At the request of the appellant the lower appellate Court directed a local investigation in order to find out whether this land was included in the separate account. The investigation proved fruitless, as it was bound to do. Unless there was a partition amongst all the proprietors of the taluk by which this land was allotted to this particular separate account and unless the Collector assented to it, the question could not arise. The real question is not whether this land belongs to the separate account but whether some of the proprietors who have an interest in that account are in possession of it by agreement amongst the cosharers. The appellant and the respondent leased it on that footing and the appellant purchased it on that footing. There is therefore nothing in this objection. IT was jointly suggested that the learned Subordinate Judge dealt in a rather summary manner with the appellant's suggestion that the holding was transferable by custom. He failed to adduce any real evidence whatever of the existence of any such custom and it would have been a waste of the learned Subordinate Judge's time if he had enlarged upon what had been said by the learned Munsif. The result is that the appeal fails and must be dismissed with costs.