MOLLA MADINA SAHEB Vs. BHANO BI BI SAHEBA

JUDGEMENT

(1.) THIS is a revision petition filed by the first defendant in O.S. No-131 of 1944, on the file of the District Munsiff's Court, Razole, which was a suit under Section 9 of the Specific Relief Act. The material facts are the following: One Sheik Sahib had two sons, Khasim Sahib and Imam Sahib. Khasim Sahib had a son, Peda Dada Sahib, whose sons are alleged to have sold their half share in three items of property to the first defendant. The first plaintiff is the wife of China Dada Sahib and claims that her husband conveyed to her those items under documents dated 6 December, 1943, and 8 May, 1918, respectively. The plaint allegations are that the first plaintiff's husband and latterly the first plaintiff were in exclusive possession of the three items till 12 May, 1944, when the first defendant and his tenant the second defendant trespassed on half of each of the said items. The suit was filed on 17 June, 1944. The first defendant claims that he is entitled to a half share of these three items and that he was in fact in possession of his half share from 10 January, 1944, the date of his sale deed, Ex. D-1. The lower Court has recorded a finding that the defendants allegation with regard to possession is not true and that as a matter of fact the first plaintiff was in exclusive possession of the property till the trespass complained of. The suit was accordingly decreed. Mr. Krishnamurthi, advocate for the petitioner, admits that the finding recorded by the lower Court is a finding of fact but argues that as his client, the first defendant, is a co-owner having a half share in the suit properties, a suit under Section 9 of the Specific Relief Act will not be maintainable. It is doubtful whether this position is correct. There is at least the judgment of a single Judge of the Nagpur High Court in Abdul Aziz V/s. Sheik Amir I.L.R. 1942 Nag. 322 that a suit under Section 9 of the Specific Relief Act is maintainable by a co-owner alleging to be in exclusive possession of the property and that another co-owner cannot resist such a suit and that the only remedy open to the latter is to sue for partition. Mr. Krishnamurthi relies on a decision of Patanjali Sastri, J., in Veeraraghava Rao V/s. Gopala Rao where it was held that one co-owner cannot maintain a suit for trespass against another co-owner. THIS was approved in the decision in Ramayya V/s. Achamma I.L.R. 1945 Mad. 160. But it does not seem that either decision had any reference to or meant to deal with a suit under Section 9 of the Specific Relief Act.

(2.) BE that as it may, I should not permit this point to be raised at this stage as it admittedly was not raised in the Court below. The first defendant has a remedy by way of suit for the establishment of his title and for partition on the basis of that title, if he establishes it. I am not, therefore, inclined to interfere in this revision petition by entertaining a point which was not previously taken. This civil revision petition is dismissed with costs.