ISHWARI PRASAD Vs. SHEOTAHAL RAI

JUDGEMENT

(1.) A preliminary objection has been taken that no Letters Patent appeal lies. It would be necessary to state the facts of the case in order to find whether an appeal lies or not.

(2.) The parties are co-sharers in a village which is subject to the alluvial action of a river. A certain piece of land was thrown up and the finding is that the defendant took possession of the same and was in possession till the date of suit instituted by the plaintiff. The plaintiff claimed that he was in possession and that his possession had been disturbed. He said that the land was his khudkasht. On these allegations he brought the suit out of which this appeal has arisen for a declaration of his title and, in the alternative, for recovery if possession. The lower appellate Court found that the possession was with the defendant. There being no question of title at issue (the plaintiff's title was never denied) the suit was dismissed.

(3.) When the appeal came before this Court a learned Judge of this Court held that although the plaintiff's suit was for possession, and possession alone, it should not have been dismissed; but if the plaintiff's title was proved, and if the land was found to be a joint property, a decree for joint possession might be awarded. Being of this opinion, the learned Judge set aside the decree of the appellate Court and remanded the appeal for re-trial.