Decided on July 24,1952

GANI Appellant


Wanchoo, C. J. - (1.)THIS is a second appeal by Gani and Gulab against the decree of the Judge, Small Cause Court, Jaipur, and has arisen in the following circumstances.
(2.)THE appellants brought a suit against Maliya, who is now represented Abdul Shakoor, for possession of a verandah and a room in a certain hiveli situate in Chaukari Topkhana Desh in the City of Jaipur. THEir case was that the haveli belonged to their father Ilahi Baksh, and that after his death, it descended to them and their mother Mst. Bhuri, and their two other brothers, who were made pro forma defendants Nos. 2 and 3. It is further alleged that Maliya who was the sister's son of Ilahi Baksh, was allowed to live in the verandah and room in dispute in 1936 presumably because of near relationship. Maliya thus continued to live as a licensee. In 1944, how-ever, he brought a suit for partition of the house, and in that suit he excluded this portion of the haveli, thus showing that he claimed exclusive ownership of it. Consequently, the present suit was brought by the appellant to regain possession of the disputed portion, and also incidentally to remove the cloud on their title cast by the actions of Maliya. It may be mentioned that there was a mortgage deed in favour of Maliya by Mst. Bhuri of 1919. THEre was litigation in that connection between Mst. Bhuri and Maliya, and though the mortgage deed purported to be for the whole house, the court held that it was valid only to the extent of Mst. Bhuri's one-eighth share. THE suit was, therefore, decreed for one-eight share of the haveli. and it was in that connection that Maliya had filed the suit for partition.
The defence of Maliya was that the property belonged to Chhotu, who was the father of Ilahi Baksh. As such Maliya had a share in it through his mother Mst. Bakshi. He further pleaded that Chhotu had made a gift of this verandah and room to Mst. Bakshi long ago, and that was how he was the exclusive owner and in pos-session of these two parts of the haveli.

The main issues in the case, therefore, were whether the house in question belonged to Ilahi Baksh or to Chhotu, whether there had been a gift of this particular portion of Maliya's mother, and whether the possession of Maliya arose in 1936 with the licence of the plaintiffs.

Both the courts are agreed that there was no gift by Chhotu to Mst. Bakshi. There is no definite finding by the first court on the question whther the property belonged to Chhotu; but the lower appellate court has held that the Perty belonged to Chhotu, and this finding is not being challenged before us. As to the question of permissive possession, the trial court held that Maliya came into possession with the permission of the plaintiffs, and, therefore, decreed the suit. The lower appellate court, however, has held that permissive possession has not been proved. It has come to the conclusion that Maliya was in possession as an heir of Chhotu, and has, therefor, dismissed the suit.

Gani and Gulab have come in appeal to this Court, and the main contention on their behalf is that even accepting the findings of the lower appellate court, a decree for joint possession should have been, passed in favour of the plaintiffs-appellants. Incidentally, learned counsel for the appellants attacks the finding of the first appellate court to the effect that it has not been proved that the possession of Maliya was permissive. So far as the findings as to gift and the ownership of Chhotu are concerned, they have not been challenged.

We have looked into the evidence in support of the finding about permis-sive possession. We have done so, because this second appeal was filed in July, 1948, when the Jaipur Civil Procedure Code was in force, and it was open to the High Court to look into questions of fact where the find ings of the two lower courts differed, as m this case. We are, however, satisfied that the lower appellate court's finding that permissive possession has not been proved is correct. We may briefly indicate that Maliya had a pacca house of his own. There was, therefore, no reason why he should ask the plaintiffs to give him a room and a verandah in this haveli, if he was not entitled to some kind of possession as an heir. The explanation offered on behalf of the plaintiffs was that Maliya asked for his accomodation because he was afraid that his house would catch fire. This explanation appears to us to be absurd. It seems that some time after 1932 Maliya came into possession of these two portions of the house. He is not an utter stranger to this family, and must have come into possession by virtue of his right as a co-sharer. We, therefore, agree with the lower appellate court that Maliya was in possession of this portion of the house in his capacity as a co-sharer.

Learned counsel for the appellants, however, urges that Maliya did not plead in so many words that he was in possession as a co-sharer, and merely relied on the gift from Chhotu to his mother. It is true that the alternative case was not put forward by Maliya in so many words; but he did plead that the heirs of Chhotu were in possession of the house, and he was one of those heirs. We are, therefore, of opinion that the lower appellate court was right in holding that Maliya was in possession of this portion of the haveli by virtue of his being an heir of Chhotu.

Another point that has been urged on behalf of the appellant is that Maliya took a mortgage in 1919 of the whole house of Mst. Bhuri, mother of the plaintiffs, and that he would not have done so, if he had a share in the house, and that this Court should, therefore, hold that Maliya had no share whatsoever in this house as an heir of Chhotu. It is enough to say that that mortgage deed was the subject-matter of a litigation in 1932, and the Court then held that it was only valid to the extent of one-eigth, which was the share of Mst. Bhuri in the haveli. Under these circumstances, it cannot be said that Maliya cannot now put forward the plea in these proceedings that he is entitled to a part of the house as an heir of Chhotu.

(3.)LASTLY, we come to the main argument on behalf of the appellants that even accepting the rinding of the lower appellate court, a decree for joint possession should have been passed in favour of the appellants. Learned counsel for the respondent, on the other hand, urges that as there was no alternative plea asking for joint possession in case the court found that the plaintiffs were not entitled to exclusive possession, the lower appellate court was right in dismissing the suit. Considering, however, that the respondent himself took the plea that the house belonged to Chhotu and that he and the plaintiffs were joint owners of it as heirs of Chhotu, it does not, in our opinion, lie in the respondent's mouth to say that a decree for joint possession should not be given. It is. true that there was no alternative plea; but it is well-settled that where the plaintiff claims a larger relief than he is entitled to, the suit should not be dismissed but the plaintiff should be given the relief he is entitled to, unless the ground on which the lesser relief can be granted is inconsistent with the case of the plaintiff, as set out in his pleadings, or would lead to a determination which would embarrass the defendant. Reference in this connection may be made to Ammalu Ammal vs. Namagiri Ammal and others (A. I. R. 1918 Madras 300), which is based on Order VII, rule 7, of the Code of Civil Procedure. In the present case, we do not think that a decree for joint possession would be so inconsistent with the case of the plaintiffs or would lead to the determination of any issue which would embarrass the defendants or necessitate the addition of the parties, that we should refuse a decree for joint possession. Obviously, when a party claims exclusive possession, he claims a larger relief than if he* prayed for only joint possession. In particular, there are authorities of various High Courts which lay down that it is open to a court to pass a decree for joint possession in a case where a plaintiff comes to court asking for exclusive possession, subject of course, to the general principle, which we have mentioned above.
In Faiz Mahomed vs. Sheikh Wajid (A. I. R. 1924 Nagpur 189) it was held that a plaintiff who claimed exclusive possession of land could be awarded its joint possession, and a suit could not be dismissed merely on account of a false averment in the plaint.

In Uttam Singh and others vs. Chuhra and others (A. I. R. 1926 Lahore 567 (2)), it was held that where in a suit for possession it was found that parties were joint owners of the land, the proper course was to pass a decree for joint possession and not to dismiss the suit.

In Mohammed Ismail Saheb and another vs. Rasool Bibi and others (A. I. R. 1930 Madras 567), the suit was for possession, i. e. , exclusive possession. The court, however, granted a decree for joint possession.

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