KRISHNA SAHAI Vs. MURLIDHAR

JUDGEMENT

(1.) This is a defendant's second appeal from the decree of a Revenue Officer, which was confirmed by the District Judge of Farrukhabad on appeal ejecting him under Section 180, U.P. Tenancy Act, 1939, from two plots bearing plot Nos. 41 and 54 in Patti 1 of village Kampil, tahsil Qaimganj, in the district of Farrukhabad.

(2.) The suit was brought against the appellant (defendant) by five cosharers in the mahal who are the respondents to this appeal. It is not disputed that the appellant is also a cosharer in the mahal. It appears that one Taja was ejected by the respondents from one of the two plots in dispute, viz., plot No. 41 in the year 1943. After that the appellant took possession of that plot as well as of plot No. 54 and the respondents sought to eject him as a trespasser under Section 180, Tenancy Act, and their suit has as I have sic said, been decreed by the Courts below.

(3.) The contention raised on behalf of the appellant is that the respondents were not en-titled to eject another cosharer as a trespasser under Section 180 of the Act, and reliance is placed on the Full Bench case in Raghubar Dayal V/s. Panna Lal 34 A.I.R. 1947 All. 1. In that case a lambardar had sued a cosharer for ejectment under Section 180 of the Act, and it was held by the Full Bench that he could not do so. They were of opinion that: Where a question arises between cosharers, including among them the lambardar, about the manner in which the cosharers should use or enjoy the land, that is a question which is to be decided by a suit in a civil Court, and in the last report, if no satisfactory arrangement can otherwise be secured, by a suit for partition. They further point out: Cosharers in a mahal are in the same position as tenants in common in English law, that is, each cosharer has a share in every part of the mahal and each cosharer is entitled to use any part just as much as any other cosharer provided that he does not permanently exclude the other cosharers.