KAULESHWARI PRASAD BHAIYA Vs. BIHARI LAL MISSIR

JUDGEMENT

(1.) THE circumstances out of which this second appeal, which is by the defendant, arises are of a rather extraordinary kind. THE plaintiff and the defendant are the co-owners of a jagir, each of them having an eight annas interest in it, which, for purposes of road cess, is included in the Tikari Raj. In 1933 the Tikari Raj obtained a certificate for Rs. 193-2-0, that being the amount then due as arrears of road cess. THE certificate was obtained against the plaintiff only, the defendant not having been made a party to the certificate proceedings, as, for some reason or other, his name was not entered in the serishta of the Tikari Raj. THE defendant, in order to prevent the jagir being sold, paid the entire amount into Court. This was on 16-3-1933, and about a year later the defendant made an application to the certificate officer which purported to be an application under Section 171, Bihar Tenancy Act. THE certificate officer proceeded on the assumption that the defendant was entitled to apply under that section and made an order putting him in possession of the whole of the jagir. In 1943, the plaintiff instituted the suit out of which this appeal arises on the assumption that the defendant was a statutory mortgagee. Instead, however, of paying into Court the sum of Rs. 193-2-0, he paid into Court Rs. 96-9-0 on the ground that the defendant had been liable to pay one-half of the amount for which the certificate had been made against himself. THE defendant resisted the suit on two grounds. In the first place, he contended that he was not liable to account, and in the second place he contended that he could not be required to relinquish possession until he had been paid the whole of the mortgage money, which he asserted was Rs. 193-2-0. THEre is, it is quite clear, no force in the first of these contentions.

(2.) THE learned Munsif rejected it; but he accepted as valid the second of the two contentions put forward and declined to give the plaintiff a decree unless he paid into Court Rs. 193-2-0. THE learned Munsif relied on the language used in Section 171, Bihar Tenancy Act, and observed that the plaintiff could again recover half of the amount from the defendant by means of a separate suit. This, it is obvious, was not very satisfactory, and it is, therefore, not surprising that the decree was varied on appeal, the learned Subordinate Judge holding that the deposit which the plaintiff had already made was sufficient. In the Courts below, it was assumed that the defendant was in fact a statutory mortgagee and it is in consequence of this assumption that the difficulty in which they found themselves arose. THE defendant, however, was one of two co-owners of the Jagir and as such he was not a person whose interest was voidable on the sale. THE certificate officer, it is clear, ought to have rejected his application and ought to have left it to him to recover the amount which he had paid in excess in a suit for contribution. THE mere circumstance that the certificate officer purported to put the defendant in possession of the whole of the jagir as a statutory mortgagee could not make the defendant a statutory mortgagee when the certificate officer acted without jurisdiction. THE true position in law is that since 1934 the defendant has been in possession of the entire jagir as a co-owner to the exclusion of the other co- owner, the latter having impliedly consented to this in order that the defendant might recover with interest from the profits of the jagir, the amount which he had paid in excess of his own share as arrears of road cess. If, however, that is so, the defendant is, in my opinion, liable to account for the profits he has made. It is true that in certain circumstances a co-owner in possession of the whole or a portion of the property to the exclusion of the other co-owners may not necessarily be liable to account to them for any profits he has made.. THE matter has been dealt with exhaustively by Mookerjee, J. in Mohesh Narain V/s. Nowbat Pathak (05) 32 Cal. 837 THE circumstances of the present case are, however, I think, such as to bring it within the second of the three propositions which Mookerjee, J. laid down in the concluding portion of his judgment. THE learned Subordinate Judge was in error in passing a preliminary decree under Order 34, Rule 7, Civil P.C. For that decree there should be substituted a preliminary decree requiring the defendant to render an account of the profits which he has made out of the jagir. THE defendant will of course be entitled to deduct the half share which belongs to him, the expenses he has incurred and the sum of Rs. 96-9-0 with interest thereon at 12 per cent. from the date of payment. THE account will be rendered for the period between the date on which the defendant took possession of the whole of the jagir up to the date on which the defendant admits the plaintiff to join possession along with himself to the extent of his share. THE appeal is allowed accordingly, In the circumstances of the case, however, each party ought, I consider, to bear their own costs throughout.