LAWS(PVC)-1929-4-218

KADHORI Vs. LAKHU

Decided On April 30, 1929
KADHORI Appellant
V/S
Lakhu Respondents

JUDGEMENT

(1.) MACNAIR , Offg. J.C. 1. The findings of fact by the lower appellate Court are not quite clear, but I understand them to be as follows. A field (area about one-fifth acre) was held in tenancy right by Mindu: he transferred this field on 23rd July 1918 to the plaintiff Kadhori, the cosharer Malguzar: Kaihori concealed the fact of surrender for some years and then cultivated it himself: the lambardar forcibly dispossesed Kadhori on 9fch July 1926. The learned District Judge considered that in these circumstances it would be most fair to decree that the defendants should put the plaintiff in joint possession of the field and pay to the plaintiff a proportion of the consideration of the transfer of 1918. In appeal it is urged that the plaintiff, who had been dispossessed, should have been given possession of the land in suit; The law regarding the right of the defendant-co-owners, when the plaintiff co-owner has acquired a tenant right for his exclusive benefit, has been laid down in clear terms by Stanyon, A.J.C., in Ramdayal v. Gulabia Bai [1908] 4 N.L.R. 120. They had a right to claim joint occupancy or occupancy-in-common in the acquired land. It is unfortunate that; this right is, in cases such as this, of little practical use. Had the defendants come to Courts and obtained a decision joint possession the decree might not have benefited them for, they might not have been able to obtain actual partition of the small field. Without the decree they could still obtain partition of the village. Persons in their position will be tempted to take forcible possession of the field if the result will be that their possession will be maintained and the co-owner formerly in possession will be given a decree of doubtful value for joint possession. It appears to me, then, necessary that when forcible possession is taken the civil Courts should restore possession without exercising their discretion in the matter of equitable relief to the persons who have taken forcible possession. I therefore set aside the decree of the lower appellate Court and pass a decree in favour of the plaintiff for possession of the land in suit from which he has been forcibly ejected. Costs in all Courts will be borne by the defendants. Counsel's fee in this Court Rs. 20.