RAM KISHORE MISRA Vs. KALKA DICHHIT

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiff to recover a plot of ground. The facts as found are as follows. The parties had been co-sharers prior to a partition. On the partition this plot fell to the lot of the plaintiff. It appears that before partition the defendants (and perhaps other persons also) used to store manure and have a cattle trough (or cattle troughs) on this plot. The Court of first instance decreed the plaintiff s claim. The lower Appellate Court reversed the decree of the Court of first instance. On second appeal to this Court a learned Judge dismissed the appeal. The present appeal is taken under the Letters Patent against the decree of the learned Judge of this Court, Both the lower Appellate Court and the learned Judge of this Court seem to have thought that the provisions of Section 118 of the Land Revenue Act was a bar to the suit for possession. That section is as follows: "If, in making a partition, it is necessary to include in the portion allotted to one co sharer the land occupied by a dwelling house or other building, in the possession of another co-sharer, the latter shall be allowed to retain it with the buildings thereon, on condition of his paying for it a reasonable ground rent to the co-sharer in whose portion it may be included. The limits of such land and the rent to be paid for it shall be fixed by the Collector." The Court seems to have thought that while the property was the property of the plaintiff under the partition, nevertheless the defendant was entitled to retain the possession and that the plaintiff s right was to go to the Collector and have a reasonable ground rent assessed. The learned Judge of this Court, as also the lower Appellate Court, seems to have altogether lost sight of the fact that Section 118 only applies to land occupied by a dwelling house or other buildings. It is quite clear that neither a heap of manure nor a cattle trough, is a dwelling house or other building" within the meaning of the section. The very fact that rent was not assessed on the land at the time of partition seems to demonstrate that neither the defendant himself nor the Revenue Officer, making the partition, thought that the plot was land which the defendant would be entitled to retain possession of after the partition. We allow the appeal set aside the decree of the learned Judge of this Court and also of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts.