Decided on June 05,1952

DALLA Appellant
NANU Respondents

Cited Judgements :-



- (1.)THIS revision application arises out of proceedings taken in execution of the order of this Board dated 12. 11. 1951 by which the application filed by Nanu, opposite party under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, No. IX of 1949 was accepted on the basis of a compromise arrived at between the parties and the order was passed according to the compromise. In the application under sec. 7 of the Ordinance it was alleged by Nanu that the land attached to two kothis and some barani land had been partitioned between the parties who were brothers and each was cultivating the share that had fallen to him. The opposite party Dalla unlawfully dispossessed him from his share of the land so he applied for reinstatement.
(2.)DURING the course of the enquiry Nanu agreed that if the opposite party Dalla would state in temple how much land attached to this kothi was held by Nanu and how much land Nanu may be allowed to cultivate in future he would abide by it. Dalla according to the agreement accepted by him entered the temple and stated that the applicant Nanu was entitled to one fifth share of chahi and barani land, and he should have that one fifth part. The area was to be shown on the spot by Dalla. In this agreement a third kothi had also been included which was not included in the application filed by Nanu. The trial court, without recording this compromise, simply consigned the case to records. Thereupon an application was filed under sec. 10 (2) of the Ordinance in this court and the application was accepted and the compromise was allowed to be recorded and an order was passed accordingly.
In compliance with this order Nanu applied to the trial court for reinstatement and the trial court proceeded to reinstate him. Thereupon Dalla raised an objection before the trial court that the order of this court was only declaratory one and could not be executed. As both the parties were co-sharers, possession could be given according to Order 21, rule 35, sub-clause (2) and no actual possession could be given. The trial court rejected the objection as the applicant had not been adjudged to be entitled to joint possession but as sole owner of one fifth share and hence the trial court held that the applicant was entitled to possession according to Order 21 rule 35 sub-clause (1) and ordered the applicant to be given possession over to bighas chahi and 20 bighas barani portion of land which the applicant had been cultivating before he was dispossessed.

It is urged by the counsel for the petitioner Dalla that as the parties were co-sharers the remedy of one co-sharer who wanted possession of his share of the land was by a suit for partition and no order for specific possession could be passed under the Ordinance. The learned counsel has cited the following rulings in his support: (1) 1949 East Punjab page 243, (2) 1950 Kutch page 40, (3) 1950 Allahabad page 691, (4) 1949 Allahabad 562, (5) 1951 Hyderabad 86.

I have gone through the rulings and consider that none of them is applicable to the present case.

In 1949 East Punjab 243 dispute was between co-sharers who were holding immovable property and were receiving rents and profits from such property. It was held that it was not necessary for the co-sharers who were out of possession to sue the co-sharers in exclusive possession for possession of their share. The possession of the defendant not being wrongful and the property being undivided such co-sharers unless they decided to sue for partition of the joint property can maintain a suit for only joint possession and a decree for such possession is more or less only of a declaratory nature. The co-sharer in possession not being liable to be ejected or dispossessed from any portion of the joint property in execution of such a decree.

But in cases in which a plaintiff had an immediate right to the possession of certain property and was kept out of such possession by a person having no right to the possession of that property the above mentioned proposition did not hold good.

The present case was not a suit by a co-sharer for any rents and profits of any joint property but for possession of a piece of land which was in his possession and from which the applicant had been unlawfully dispossessed. Therefore, the above ruling did not apply to this case.

In 1950 Kutch 40 it was held that a co-sharer can not obtain a decree for exclusion of joint undivided property from any co-sharer; but in this case applicant had alleged that the land had been partitioned and was not joint and undivided, therefore, this ruling did not apply.

(3.)IN 1950 Allahabad 690 there was a piece of land which was not used by any co-sharers and one of them reclaimed that piece of land and converted it into a source of income. The other co-sharer sued for joint possession. It was held that the courts should be reluctant to disturb possession of such a co-sharer by giving a decree for joint possession to another co-sharer who stood by while one of them was spending money and labour in reclaiming the land. IN the present case there was no piece of waste land in the first instance which the non-applicant had reclaimed and secondly the applicant did not pray for joint possession. Therefore the above ruling did not apply.
Similarly in 1949 Allahabad 562 some Banjar land was brought under cultivation by one of the co-sharers and when the other co-sharers tried to share such land it was held that the other co-sharers were entitled only to declaration of title and joint possession in such a land and the cultivating possession of the co-sharer was to be protected till the partition in village. In the present case there was no bunjar land which had been brought under cultivation by anyone party and so this ruling did not apply.

In 1951 Hyderabad 5o a decree for possession of share in revenue paying land not specifying any specific portion of land was passed and possession was to be delivered to the decree holder. The civil court instead of sending the decree to the Collector for execution proceeded to have it executed by a Taluqdar who was an officer of the court. It was held that the civil court should not have executed the decree through a Taluqdar or through any officer of court and the decree should have been sent to the Collector for execution who alone was competent to apportion the land and carry out the decree. It was observed that where the exact piece of land which was to be given in possession of the decree holder was specified a bailiff could place the property in possession of the decree holder but where the decree does not specify exact piece of land and was only for some annas share in a revenue paying land the executing officer has to apportion the land according to the direction of the court and this can be done only by a revenue officer and not by a bailiff of the civil court.

This ruling supports the case of the opposite party as according to this even if a decree for any annas share of land without specification of the exact portion of land be given that decree can be executed by the Collector. In the present case the order was passed by a revenue court and the order was being executed by a revenue officer who could apportion the land according to the order.

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