MOHAMMAD SHER KHAN Vs. BHARAT INDU

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-respondents. They sued for possession of a certain site in the abadi. The abadi is the unpartitioned property of the plaintiffs and defendants 1 to 3. Some years ago, defendants 1 to 3, who along with one Afzal-un-nissa Begum were at the time in sole possession and occupation of the land, built two shops on it. The plaintiffs brought a suit for recovery of joint possession on the ground that the building by their co-owners was unlawful. Their suit was dismissed by the trial Court. On appeal, however, they obtained a decree against defendant 1, 2 and 3, but failed to join as respondent Afzal-un-nisa Begum. The consequence was that they never succeeded in executing the decree.

(2.) In the present suit their failure to execute that decree was pleaded as somehow barring the plaintiffs from bringing the present suit. The trial Court allowed this objection. The lower appellate Court has rejected it and given the plaintiffs a decree for joint possession. The present suit is based on the fact that the defendants 1 to 3 have transferred the site along with the buildings to defendant 4, a stranger. Their plea is that the sale to a stranger has constituted a new cause of action.

(3.) The law on this subject does not appear to us open to doubt. If co-owners of the abadi under some arrangement remain in separate possession of a certain site, this does not give the other co-owners a right to sue. But if the co-owners in possession construct a building on the site, the other co-owners may sue for demolition of the building and for joint possession, provided that they do so within a reasonable time. In this case it must be held that the defendants I to 3 were entitled to occupy, the site and the buildings in sole possession. The plaintiffs had failed in the previous litigation to get a decree against Afzal-un-nisa Begum, and as her right could not be separated from that of defendants 1 to 3, this in effect meant that the plaintiffs had failed to disturb the sole possession of the defendants 1 to 3 of the site and of the buildings. That litigation, however, merely affirmed in the defendants a right to retain possession. It gave them no right to transfer possession to a stranger. The right of co-owners to sole possession is a right which continues only so long as they possess themselves and such a right is consistent with the other co-sharers title. If, however, the co-sharers transfer to a stranger, this amounts to a denial of the title of their co-owners and is inconsistent with that title. Such a transfer gives the co-owners a right to sue for a declaration that the transfer is invalid against them it also gives them a right to sue for joint possession with the transferrers and ejectment of the transferee; for the transferee gets no title to possession by the transfer. Again the transferrers by reason of the transfer and delivery of possession to the transferee must be deemed to have left the plot vacant. The co-owners thereupon acquire a right to joint possession and the transferrers can no longer plead a right to separate possession in contravention of which right they have themselves acted.