HARNANDAN DAS Vs. MUHAMMAD KALIM

JUDGEMENT

(1.) This is an appeal by the defendants against a decree passed on appeal by the 3 Additional District Judge of Patna reversing the decision of the 2nd Subordinate Judge of Patna and decreeing the plaintiffs suit for partition of a four anna share in village Gauraiya Pali alias Kosta, tauzi No. 7620. It is undisputed that one Sobha Mahton at one time held a 5 anna 4 pies share in that tauzi. The plaintiffs case was that Sobha Mahto gave the whole of that share in usufructuary mortgage to one Tek Narayan Das in 1886 and that the mortgagee's title had passed from Tek Narayan Das to one Dilchand Das and from him to one Zahur Alam, who was succeeded by his heirs; and they claimed that the mortgagors right was purchased in 1897, by one Ajodhya Prasad in execution of a decree against Sobha Mahto and Ajodhya Prasad sold that share to the plaintiffs, but the plain, tiffs discovered that 1 anna 4 pies share had already been sold at auction and purchased by one Lala Halumant Lal.

(2.) Therefore, the plaintiffs claimed only 4 annas share and they pleaded that they were in possession through the usufructuary mortgagees. The original Court held that the plaintiff had neither title nor possession over the share claimed and specifically found that the mortgagees were not in possession. The lower appellate Court found that the plaintiff's title was quite clear but further found that neither Dilchand Das nor Zahur Alam nor his heirs had ever been in possession of the mortgaged property. He then continued his judgment as follows: I may also note bore that it is an established principle of law that the possession of one cosharer will be considered to be the possession of the other cosharer unless there be a clear ouster. In this case if there is ouster it is not of the plaintiff as cosharers but of their ijaradars. So in this view also the plaintiffs would be held to be in possession and can maintain this suit for partition.

(3.) In view of my conclusion regarding possession, it is unnecessary to consider whether the finding of the learned Additional District Judge on the question of title is a legal finding or not. It is urged for the appellants that the principle which the learned Additional District Judge has applied in reaching his finding regarding possession cannot be applied in favour of the plaintiff who admittedly neither has any actual physical possession nor any present right to such physical possession because the usufructuary mortgage is admittedly still unredeemed. It is also contended that as the plaintiff had claimed in his plaint to be in possession through the usufructuary mortgagees he should not have been permitted to make out a different case on appeal. In support of the decision of the learned Additional District Judge Mr. Manuk for the plaintiff-respondent relied on a passage in the judgment of the Judicial Committee in Midnapore Zamindary Co. Ltd. V/s. Naresh Narayan A.I.R. 1924 P.C. 144 at p. 635: The proprietary interest in the lands is admittedly vested in the plaintiff and the Midnapore Company as cosharers, who hold the lands in common. Where lands in India are so hold in common by cosharers, each cosharer is entitled to cultivate in his own interests in a proper and husbandlike manner any part of the lands which is not being cultivated by another of his cosharers, but he is liable to pay to his cosharers, compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a cosharer is not an ouster of his cosharers from their proprietary right as cosharers in the lands. When cosharers cannot agree as to how any lands held by them in common may be used, the remedy of any cosharer who objects to the exclusive use by another cosharer of lands held in common is to obtain a partition of the lands. No cosharer can, as against his cosharers, obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them.