JOY GOPAL SINGHA Vs. PROBODH CHANDRA BHATTACHARJEE

JUDGEMENT

(1.) This appeal arises out of an action in ejectment. The plaintiffs case shortly stated is as follows: One Girish Chandra Roy was the owner of the disputed land. He mortgaged it and in execution of a decree obtained on that mortgage it was purchased by one Nritya Gopal Singha in the name of Khagendra Ghosh on 14 March 1906. The plaintiffs as heirs of Nritya Gopal were in possession of the disputed land till they were dispossessed by defendants 1 and 2 in Aswin 1335 B.S. The suit was contested by defendants 1 and 2. They denied the title of Girish to the land in suit and pleaded that the property really belonged to one Ramkalpa, the grandfather of defendant 1. The trial Court came to the conclusion that defendants 1 and 2 were trespassers on the land and that Girish had 12 annas share in the land. It accordingly declared the plaintiffs title to the extent of 12 annas to the disputed land and gave the plaintiff a decree for possession of that share. On appeal by the defendants to the lower appellate Court the learned Judge has affirmed the finding of the trial Court that the defendants are trespassers. The learned Judge however has found that Girish had only one-fourth share in the disputed land and consequently the plaintiffs were not entitled to get a decree for more than one-fourth share in the disputed land. Hence the present appeal by the plaintiffs.

(2.) Mr. Gupta appearing on behalf of the appellants has raised two points in support of the appeal. His first contention is that the plaintiffs having been found to be cosharer of the disputed land to the extent of four annas share and the defendants having been found to be trespassers, the plaintiffs were entitled to eject the defendants from the whole of the disputed land. If two persons are joint owners and a third person holds the land with the express sanction and acquiescence of one of the cosharers, he cannot be ejected from the whole of the land by the other cosharer. The latter can get a joint possession to the extent of his share: see Hulodhar Sain V/s. Gooroo Das Roy (1873) 20 WB 126, Radha Proshad Wasti V/s. Esuf (1881) 7 Cal 414, Mitter, J., in Naresh Chandra V/s. Haydar Sheikh, 1929 Cal 28, relying on the opinion of Baron Parke and Baron Alderson in Deo d. Hellyer V/s. King (185(SIC)) 20 LJ Ex 301 has held that a cosharer can only recover joint possession as against a trespasser to the extent of his share in the joint property. In 20 LJ Ex 301 (4) Plat B. however observed that a cosharer was entitled to recover possession of the whole. In affirming the decision of Mitter, J., in L.P. 104 of 1928, Rankin, C.J., observed as follows: A theoretical and highly important question is raised as to whether or not one cosharer can maintain a case of trespass in the absence of other cosharers against the trespasser so as to get an order of eviction as distinct from an order of joint possession with the trespasser. That is a matter which has long been considered in this Court. The position as regards the execution of such an order and the position as regards the theory of the matter have in practice been in this Court dealt with by giving a decree for joint possession together with the trespasser and leaving it to the plaintiff to work out his further rights by a suit for partition. I do not think that there is anything unusual in the form of the decree.

(3.) In view of the finding of the lower appellate Court that the plaintiffs have succeeded only in establishing his title to the one-fourth share of the disputed land, they are only entitled to recover joint possession to the extent of four annas share with defendants 1 and 2. If the plaintiffs be given a decree for possession of 12 annas share on the ground that he is a cosharer to the extent of four annas share, this will entitle him to get mesne profits to the extent of 12 annas share which under the law he is not entitled to claim. In an action for rejectment the plaintiff must succeed on the strength of his own title and not on the absence of any title in the defendants. In Currimbhoy & Co. Ltd. V/s. L.A. Greet, 1930 Cal 113, C.C. Ghose, J., had held that a cosharer by himself can maintain an action of trespass against a wrong-doer. But from this it does not necessarily follow that he can get a decree for possession of the whole property. In fact as has been stated above the practice in this Court had been all along to give the cosharer a decree for joint possession with the trespasser leaving the plaintiff to work out his further rights by a separate suit for partition. This contention of the appellants therefore fails.