HARI DAS BASAK Vs. RADHA CHARAN PODDAR

JUDGEMENT

(1.) This appeal arises out of a dispute between two of a number of co-sharers in a certain property. The plaintiffs share in the property, it appears, is 4 annas 5 gandas while the defendant s share is 1/12ths. Within this property there is, it appears, a market place known as Mirkadin. The findings of fact are that a portion of this market diluviated some years ago; that some 7 years before suit the land now in question and other lands re-formed and that thereupon while the lands were lying waste, the defendants erected upon the portion in dispute a corrugated iron shed which is said to measure 40 into 90 cubits; that this shed is divided into compartments and by letting out the compartments to shopkeepers the defendant is realizing an income of Rs. 200 per annum. When the shed was erected, it does not appear that either the plaintiff or any of the co-sharers took exception to its construction and the plaintiff s suit was not brought until 1322, that is, 4 years and some months after the erection of the building. The defendant has at no time denied the plaintiff s title as co-sharer, and it has further been found by the Subordinate Judge that in fact by the erection of this shed no injury has been done by the defendant to the plaintiff. It has further been found that in what is known as the Bandar there is a large extent of vacant land on which it is open to the plaintiff to build.

(2.) On these findings of fact the learned Subordinate Judge has found that there was in fact no ouster of the plaintiff by the defendant and the plaintiff is, therefore, not entitled to the decree for joint possession which he sought. On the whole we think that this case comes within the principles enunciated in the cases of Dijendra Narain Roy v. Purnendu Narain Roy 5 Ind. Cas. 171 : 11 C.L.J. 189 and Basanta Kumari Dasya v. Mohesh Chandra Saha 21 Ind. Cas. 621 : 18 C.W.N. 328 and that the learned Subordinate Judge is right in the conclusion at which he has arrived. With this modification that the plaintiff will have a declaration of his title as Zemindar to 4 1/4 annas share in the site in question, this appeal is dismissed with costs. Richardson, J.

(3.) I agree. Reference may be made to the judgment of Mr. Justice Mahmood in Paras Ram v. Sherjit 9 A. 661; A.W.N. (1887) 253 : 5 Ind. Dec. (N. s.) 878. In that judgment earlier decisions of this Court and other Courts are referred to, which show that the principle on which we are acting is no new principle, but is well settled.