KASHI NATH TEWARI Vs. MAKCHHED TEWARI

JUDGEMENT

(1.) This is a defendants appeal from a decree of the learned Civil Judge of Gorakhpur which affirmed a decree of a learned Munsif of that district. The plaint states that by deed of exchange dated 28 May 1915 the plaintiffs obtained plots in list B while the defendants became owners of plots in list A. The plaint further states that ever since the execution of the deed of exchange the parties have been in possession of the plots assigned to each other; that the Revenue Court for certain reasons have not given effect to the transfer in the revenue papers and that the defendants encouraged by the order of the Revenue Court have attempted to interfere with the plaintiffs possession. On these allegations it is prayed that the plaintiffs may be granted declaration that they are owners of the plots enumerated in list B and that the defendants are not entitled to interfere in their enjoyment and possession of the aforesaid plots. In the alternative it is prayed that if for any reason the first relief is not granted to the plaintiffs they may be awarded a decree for possession of the plots comprised in list A together with Rs. 100 spent by the plaintiffs on the improvements. Defendants 2, 3 and 5 to 8 contested the suit. They pleaded inter alia that there was no exchange as alleged by the plaintiffs; that the defendants were in possession over plots in list A as occupancy tenants; that the plaintiffs were never in possession of the plots in list B and that the alleged deed of exchange was inoperative for want of registration and other legal defects.

(2.) As the defendants claimed to be the tenants of the plaintiffs with respect to plots in list A the issue of tenancy was referred to the Revenue Court. The finding of the Revenue Court was in favour of the defendants. The trial Court accepted the finding of the Revenue Court. The lower Appellate Court did not consider it necessary to record a finding on that issue as in the opinion of the learned Civil Judge the decision of that issue was unnecessary in view of his findings on other issues. The deed of exchange on behalf of the plaintiffs was executed by one of the plaintiffs, namely Raghunandan. It is argued that Raghunandan alone was not competent to execute the deed on behalf of the plaintiffs and further that the deed of exchange is ineffective because it purports to transfer plots in list A which appertain to khewats 1 and 4 which belong to several cosharers including the plaintiffs. It is urged that Raghunandan had no right to transfer specific plots appertaining to a joint khewat, especially as several cosharers were in no way concerned with the transaction of the alleged exchange. In support of this contention several authorities have been cited. In Midnapur Zamindary Co. Ltd. v. Kumar naresh Narayan Roy (1924) 11 A.I.R. P.C. 144 their Lordships of the Judicial Committee observed: Where the lands in India are so held in common by cosharers each cosharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his cosharers but he is liable to pay compensation in respect of such exclusive use of the lands. Such an exclusive use of the lands held in common by a cosharer is not an ouster of his cosharers from their proprietary rights as cosharers in the lands.

(3.) It was further observed: No cosharer can as against his cosharers obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy in them.