YERUKOLA ALIAS PENTA JOGIAH Vs. MUDIYA KAMUDU

JUDGEMENT

(1.) I think the suit has been rightly dismissed as against the tenants, defendants Nos. 1 to 8, who have paid the rent claimed from them to defendant No. 9. to whom they executed Muchilika for Fasli 1310 as manager of the family which was joint at the time.

(2.) But the Munsif was not right in dismissing the suit against defendants Nos. 9 and 10, the other members of the plaintiff's family which had been once joint but was divided when this action was instituted, on the ground that there has been misjoinder of causes of action and parties in claiming the relief sought against them in the same suit as against defendants Nos. 1 to 8, though the two claims are laid in the alternative. In my opinion, Section 28, Civil Procedure Code(Act XIV of 1882), is a sufficient answer to this objection and I am supported in this view by the principle of the decisions in Aiyathurai Ravuthan V/s. Santhu Meera Ravuthan 31 M. 252, 18 M.L.J. 238; Madan Mohun Lal V/s. Holloway 12 C. 555 and Sham Singh V/s. Kishun Sahai 6 C.L.J. 190. The plaintiff and defendants Nos. 9 and 10 being no longer members of a joint family, the plea that the action cannot be maintained unless partition is asked for has no force. Nor have I been referred to any authority that one co-owner cannot bring an action like this for recovery of his share of the income of joint property against another co-owner who has taken the whole income without having the property partitioned by metes and bounds.

(3.) I, therefore, set aside the judgment of the Munsif so far as it dismisses the suit against the defendants Nos. 9 and 10 on a preliminary question, and direct that he dispose of the suit against them according to law. Costs will abide and follow the result.