PARTAP AHIR Vs. GOPI RAM

JUDGEMENT

(1.) This is a Letters Patent appeal by the defendants under the following circumstances : The plaintiffs, two co-sharers, brought a suit against the two defendants alleging that the plaintiffs were co-sharers of a share of 14 annas odd in a certain village and, that the plaintiffs and other co-sharers possessed a certain No. 101 which was. pond land and that the defendants had no concern with it; that in Asarh 1333F in spite of the remonstrances of the servants of the plaintiffs the defendants without any right forcibly ploughed the entire plot and did not allow it to be cultivated on behalf of the plaintiffs, and since 1333F the defendants had been sowing crops in this number. The suit was brought three years later on 17 January 1929, the possession having been taken by the defendants in July 1926. The plaint set out the area of the plot as 2 bighas 19 3/4 dhurs. The plaint claimed possession of this area from the defendants in favour of the plaintiffs and Rs. 205-5-6 damages as mesne profits. The suit was against the defendants as trespassers. The written statement of the defendants was that they had been all along in possession as tenants of the plot in question on payment of an annual rent of Rs. 5 to the zamindar.

(2.) A plea was also taken that the Civil Court did not have jurisdiction. The suit was filed in the Court of the Munsif. The Munsif remitted an issue to the Revenue Court for determination as to whether the defendants were tenants of the plots in suit. The Revenue Court found that the defendants were not tenants of the plot in suit. The Munsif therefore granted a decree for possession and for the amount of damages claimed Rs. 205 odd. The defendants appealed and the lower appellate Court found that the village is divided into two mahals, one called Mahal Sadho Saran Singh and the other called Mahal Tewa Singh; that the land in question No. 101 lies as regards one biswa area No. 101/1 in Mahal Sadho Saran Singh in which the plaintiffs have a 14 annas odd share, but that the defendants were not in possession of this one biswa; that the remainder of the number was No. 101/2, which has the area given in the plaint of 2 bighas 19 384 dhurs, and it was in the possession of the defendants and lies in Mahal Tewa Singh, and in this mahal the plaintiffs have only a very small share of 7 pies 13 kant 3 jao. Further the Court found that the plea of the defendants was correct that they had been put in possession in July 1926 by Bhagwan Singh, who was a co-sharer in Mahal Tewa Singh, and that they had been paying rent to Bhagwan Singh since that date. The lower appellate Court therefore found that the defendants were tenants and not trespassers and dismissed the suit against them. The learned Single Judge of this Court who heard the second appeal has allowed the appeal of the plaintiffs and has restored the decree of the trial Court.

(3.) A considerable amount of argument has been made in regard to various rulings where one co-sharer puts a tenant in possession and other co-sharers sue. In Panchanan Banerji V/s. Anant Prasad Pande 1932 All 457, it was held by a Bench of this Court that where all the co-sharers bring a suit in the Civil Court against a tenant who has been put in possession by one co-sharer that person has not become a statutory tenant as he has not been admitted to tenancy by all the three co-sharers, and that the mere fact that one of the co-sharers had granted a lease to the defendant did not prevent the other co-sharers from ejecting him. That case differed in material points from the present case. In the first place the plaintiffs did not make the other co-sharers parties to this suit. We consider that in a suit of this nature Bhagwan Singh, who is found to have put the defendants in possession of this plot, is a person who should have been made a party. If the plaintiffs were not aware that Bhagwan Singh had put the defendants in possession then when the written statement contained the plea that the defendants had been all along in possession as tenants of the zamindars, the plaintiffs should have asked the Court to ascertain under Order 10, Rule 1 or Rule 2 from the defendants which zamindar had put them in possession, and the plaintiffs should have asked for leave to amend their plaint by making that zamindar a party. In the second place the plaintiffs brought their plaint on the assumption that the land in suit lay in the mahal in which they had a 14 annas share. That assumption has misled the Revenue Court and the defendants have been prejudiced in the matter.