Decided on November 23,1967



- (1.) THIS is a plaintiffs' further appeal against the lower appeal Court's affirming decree whereby their claim for damages amounting to Rs. 4,000 was dismissed.
(2.) THE material facts, which are no longer in dispute, are these. In Civil Suit No. 1A of 1937, the Additional District Judge, Khandwa, passed on 31 July 1937 a decree in terms of compromise by which Dattatraya (plaintiff 1) and his two brothers, Sadashiva and Ganpatrao (defendant 2), divided their joint family property in which each had a third share. THEy, however, kept one item of the property, namely, a ginning factory called Trimbakrao Ramrao Ginning Factory, undivided. By a subsequent arrangement arrived at amongst them, each co- owner agreed to run the factory for one year in every 3 years by rotation. According to this arrangement, the plaintiff 1 had his terms for running the factory in the years 1953-54, 1956-57 and 1959-60. Subsequently, Sadashivarao sold his one-third share in the factory to Smt. Annusayabai (defendant 1), who is the wife of Ganpatrao (defendant 2). Still later, by a deed dated 4 March 1958, the plaintiffs 2 to 4 purchased the one-third share of Dattatraya (plaintiff 1). Claiming to have stepped into the shares of the plaintiff 1, the plaintiffs 2 to 4 demanded possession of the factory for running it in the year 1959- 60. THE defendants did not deliver possession of the factory for that purpose and, in fact, refused so to do. The plaintiffs 2 to 4 claimed Rs. 4,000 as damages mainly on the ground that they were, under the arrangement made amongst the plaintiff 1 and his two brothers, entitled to run the factory in the year 1959-60 but they were wrongfully not allowed by the defendants to do so. In the alternative, they sought to support that claim on the basis that the plaintiffs were entitled to one-third share of profits from 1 September 1957 to 31 August 1960. The defendants resisted the claim mainly on the ground that the agreement to run the factory by rotation was a private arrangement between the plaintiff 1 and the defendants and the plaintiffs 2 to 4 had neither any right to run the factory in accordance with that arrangement nor could they claim any damages for not being allowed to run it in that way.
(3.) BOTH the Courts below dismissed the suit on the view that the plaintiffs 2 to 4 were disentitled to take advantage of the agreement to run the factory by rotation made amongst the plaintiff 1 and his two brothers. The only question for consideration in this appeal is whether the view taken by the Courts below about the agreement to run the factory by rotation is correct. In view of the partition decree, the three brothers held the factory as co-owners. This position is further clear from paragraph 3 of the plaint and paragraph 3 of the written statement and is also not disputed.,,.,..That being so, the principle that the purchaser of an undivided share in a specific coparcenary property is not entitled to joint possession has no application to this case.;

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