PAIKEJI Vs. MT. CHANDRABHAGABAI

JUDGEMENT

(1.) 1. This appeal arises out of a suit for joint possession of survey Nos. 137 and 72/1 in mauza Talegaon, Talegaon Talatulay. These survey numbers were occupancy fields that were surrendered by their respective tenants to the defendant who is the lambardar of the village. The plaintiffs, who own a two-anna share in the village, asked the defendant to give them actual joint possession with him, but he refused to do so, saying that they were not entitled to actual possession until the village had been partitioned.. The title of the plaintiffs is not denied and the trial Court passed a decree in their favour for joint possession on payment of Rs. 256-4-4 which was found to be their proportional share of the costs of acquisition. On appeal the Additional District Judge held that they could only get a declaration that they were entitled to an eighth share in these fields on payment of the above sum and that this share should be awarded to them on partition of the village. In Basanta Kumari Dassya v. Mohesh Chandra 1914 Cal 283 it was observed: It is difficult to sea how two different co-sharers can at the same time build upon or carry on cultivation on one and the same piece of land. If however the sole occupation of one co-sharer in this manner constitutes ouster of the other co-sharers, then in every case the occupation by the co-sharers of the lands in their respective possession would constitute an ouster of each other and this certainly cannot be held. Ouster must therefore mean dispossession of one co-sharer by another where a hostile title is set up by the latter and where the occupation of the latter is not consistent with joint ownership.

(2.) THESE remarks were approved in Ramchandra Saha v. Lakshmi Kanta Saha 1928 Cal 574. In the somewhat similar case in S.A. Raghoba v. Yadorao S.A. No 202 of 1924, Hallifax, A.J.C., remarked: The plaintiff already has all the joint possession he can possibly get at present. The defendant admits expressly in this Court... that the field in dispute is the common property of the owners of the village and a part of the property to be divided in a partition between them. His position is that the plaintiff is not entitled to actual cultivating possession of that field along with him, unless it is in excess of what he is entitled to hold separately after a partition has been made, a matter which can be settled only on the making of a partition. That is undoubtedly correct.