SRISH CHANDRA DUTTA Vs. MATHURA NATH DUTTA

JUDGEMENT

(1.) This appeal arises out of a suit for joint possession with regard to a four annas share of a piece of land. The plaintiffs and the defendant are co-sharer landlords. The disputed land was in the possession of a tenant named Brindaban Nath. After his death, his widow Anandamoyee was in possession of it. Then Anandamoyee abandoned the holding about 11 years ago and the defendant who is a landlord to the extent of a four annas share took possession of the entire land. The plaintiffs, therefore, seek joint possession with the defendant of their four annas share of the land, to which they say they are entitled on the abandonment of the holding by the tenant. The first Court made a decree in favour of the plaintiffs. On appeal, the lower appellate Court dismissed the suit on what appears to be the principal ground that the defendant had been in actual possession of the land for over 11 years by erecting a tin-shed thereon. He held that there was no ouster of the plaintiffs or any waste of the joint property, nor was there any injury caused by the defendant's possession. The Subordinate Judge on these findings dismissed the plaintiffs suit. The plaintiffs have appealed against that decree.

(2.) The first difficulty in understanding the judgment of the Subordinate Judge is why the question of waste and injury has been brought in. It appears, however, that in certain of the reported cases persons in the position of the plaintiffs in this case charged waste and injury against their opponents and those words have been taken from the reports of those cases. But, in the present case, there is no allegation as regards waste and injury. The plaintiffs want to enforce their ordinary right as co-sharers to recover joint possession and what we have to see is whether the plaintiffs have lost their right to joint possession and should not be allowed to exercise that right on the ground of justice, equity and good conscience as laid down by the Judicial Committe in the well-known case of Watson & Co. V/s. Ramchand Dutt [1890] 18 Cal. 10.

(3.) In this case, there is nothing which can be said to bring into play the rule of justice, equity find good conscience against the plaintiffs. The only thing upon which the learned advocate for the defendant-respondent relies is the fact that the Subordinate Judge has found that the defendant has been in occupation of the disputed land without any objection by erecting a tin- shed thereon for over 11 years. From this we are asked to infer that the defendant took possession with the consent and acquiescence of the plaintiffs. This question of acquiescence was actually raised in the issues in the trial Court, but it was not pressed by the defendant. It can hardly, therefore, be allowed to be raised in second appeal for the first time. The matter, therefore, stands thus. The plaintiffs had the right to joint possession with the defendant on the abandonment of the holding by the tenant. They did not proceed to exercise that right at once, why it does not appear from the judgment. But we are informed that several of the plaintiffs were and are still minors and that was the reason why this was not done. But the fact of their not rushing into Court cannot take away their ordinary right which the law allows them and, as there is nothing in the circumstances which can prevent them from exercising their right, they are entitled to joint possession of the property to the extent of their four annas share with the defendant. The case of Watson & Co. V/s. Ramchand Dutt [1890] 18 Cal. 10 and Lachmeswar Singh V/s. Manowar Hossein [1892] 19 Cal. 253 were distinguished in the case of Dilbar Sardar V/s. Hosein Ali Bepari [1889] 26 Cal. 553 where it was held that a person in the position of the plaintiffs in the present case was entitled to joint possession without seeking for partition of the joint property. That case applies under the present circumstances.