ADIT SINGH Vs. RAI BINDAYAL SAHU

JUDGEMENT

(1.) This is an appeal by the plaintiff. He brought a suit for possession of certain properties entered at the foot of the plaint and for damages. He impleaded as defendants to the suit defendants first party who it was alleged were in possession of the property in dispute, and defendants second party who it was alleged had made a mortgage of the property in dispute which mortgage had been sued upon, and in execution of a decree for sale passed on the basis of the said mortgage against the said defendants second party, the defendants first party had obtained possession of the property in suit. He also impleaded as defendants, defendants third party who, it was said, were jointly interested with the plaintiff in the property in dispute, but as they were absent they could not be joined as plaintiffs but were made pro forma defendants. The plaintiff's suit has been decreed by the Courts below with respect to certain portion of the plaint property but was dismissed in respect of two plots Nos. 1326 and 983, and the appeal before me is with respect to these two plots alone.

(2.) The allegations on the basis of which the claim in respect of these plots was made were that the plaintiff, the defendants second party and the defendants third party were owners of an undivided mahal in which these two plots were situate. I shall now refrain from making any mention of defendants third party and content myself with mentioning the plaintiff alone, the rights of defendants third party being safeguarded by the plaintiff. It is said that in the year 1897 the defendants second party executed a simple mortgage in respect of the two plots mentioned above along with certain other plots in favour of defendants first party. A preliminary, decree for sale on the basis of this mortgage was obtained by defendants first party against defendants second party on 7 April 1913 and the final decree for sale was passed on 26 February 1916. Subsequent to the passing of this final decree there was a perfect partition as amongst two cosharers and these two plots were allotted to the plaintiff. It might be mentioned that these two plots were before the partition in the exclusive possession of defendants second party as their sir: this has been found by the Courts below and the finding has not been challenged by learned Counsel for the appellant. In pursuance of the decree obtained by the defendants first party they put the mortgaged property to sale and purchased the two plots on 24 July 1919. Formal possession was obtained by the defendants first party on 22 December, 1919, and on 18th September 1920 in spite of the objections of the plaintiff the revenue Court ordered mutation in favour of the defendants first party. The case for the plaintiff is that the defendants second party were not entitled to execute a mortgage in respect of specific plots of sir even though they might have been in the exclusive possession of the same by virtue of an arrangement amongst the cosharers when prior to the partition all the coparceners had only an undefined right proportionate to their share in the entire village. This aspect of the case has not been clearly appreciated by the Courts below. There is abundant authority for the proposition for which learned Counsel for the appellant contends. As early as the year 1885 the majority of the Judges in the Full Bench case in Sital Prasad V/s. Amtul Bibi (1885) 7 All 633, held that in zamindari tenures in which the whole land is held and managed in common, a cosharer cannot convey his right of occupancy in the sir as something distinct from his proprietary rights in the mahal. In Jamna v. Jhalli 1920 18 ALJ 129, Lindsay, J. held: The co-sharers in an undivided property may, by arrangement among themselves, take possession of definite portions of that property and hold them so as to enjoy their proper quota of the profits, but it is not permissible for any one of such co-sharers to alienate to a third person as his exclusive property the portion which he has been occupying by agreement with his co-sharers.

(3.) In Ram Khelawan Koeri V/s. Bishwanath Prasad 1932 All 81, Pullan, J., held: Although a co-sharer brings under cultivation certain waste land and occupies it as his exclusive property with the permission of his co- sharers it is still not permissible for him to alienate that land by means of a perpetual lease.