YELLAYI SANNAYA Vs. SANNAYAJULU RAMESHAM

JUDGEMENT

(1.) This application in revision is directed against a decree of the learned Additional Munsif of Berhampore, decreeing a suit of the opposite party brought under Section 9, Specific Relief Act. The plaintiff's case was that he, his full brother defendant 2, and his half-brothers defendants 3 and 4, and their father, were in joint possession of a privy. On the death of the father, defendant 1, on the basis of a Sale deed in his favour said to have been executed by the father, erected a partition wall dividing the privy into two parts and forcibly dispossessed them from half of the privy.

(2.) The learned Munsif after recording the evidence decreed the suit. A question of law was raised before him that the plaintiff admittedly being in possession of an undivided portion of the privy was not entitled to maintain the suit, his prayer being that the principal defendant, that is defendant 1, should be dispossessed from half of the privy of which he had taken forcible possession. The defendant relied before the learned Munsif on a decision of the Madras High Court in Para Koothan V/s. Para Kulla Vandu AIR (1916) Mad 587. The learned Munsif declined to follow this case in the face of a decision of the Calcutta High Court in Ajiman Bibi V/s. Sheikh Reasat AIR (1916) Cal 562 which according to him was in favour of the plaintiff.

(3.) He held that the area being under the jurisdiction of the Patna High Court where the decisions of the Calcutta High Court are followed, that decision must be followed in preference to the decision of the Madras High Court. He, therefore, decreed the suit. Defendant 1 has filed this revision application. Apart from the two decisions already referred to, which I shall discuss in a moment, Mr. Chatterji appearing on behalf of the petitioner has referred us to another decision of the Calcutta High Court in Hari Nama Dass V/s. Sheikh Naji AIR (1914) Cal 496. This decision and that of the Madras High Court which I have already referred to clearly lay down that a Court in a suit under Section 9, Specific Relief Act, has no jurisdiction to pass a decree in favour of a plaintiff who claims an undivided share in a property from which he and his co-sharers were ousted.