AMARCHANDA Vs. RAMJIWAN

JUDGEMENT

(1.) THIS is an appeal against an order of remand. The point raised is that the case ought to have been decided as one governed by Schedule 2, Article 1, C.P. Tenancy Act and not by Article 120 or 144, Lim. Act. To give effect to this contention is practically to extend the meaning of the words "possession" and "person" in such a manner as if they comprise within their scope a claim for "joint possession" and include a dispossession or exclusion from possession by a co-owner or co-tenant. I am not prepared to extend their scope in this manner for the simple reason that it may be tantamount to laying down as an invariable rule of law that exclusive possession held by one of several co-owners must necessarily be presumed to be adverse so as to give the other co-owners, who are excluded, an immediate right to sue the person in possession for ejectment; but this is opposed to all principles of law relating to joint property.

(2.) THE normal presumption in such cases is that the possession of one co-owner is not on his account but on behalf of all. Moreover, a transferee of the undivided interest of one of several co-owners does not get right to immediate possession, but if he wants separate possession of his purchase, he must sue for partition. It is clear that the right of co-owners must be settled in a suit or proceeding for partition of the joint property and that if they want common enjoyment of such property before partition they must resort to, or sue for and obtain relief in one of the usual modes of such enjoyment; and it is undoubted that the relief of joint possession is one of such modes. The plaintiff has sued for such a relief and to such a suit Article 120, Lim. Act, has been held applicable in Earn Dayal v. Gulabia Bai [1908] 4 N.L.R. 120. I, therefore, think that the order of remand is proper and must be upheld. The appeal fails and; is dismissed with costs.