- (1.) THE petitioner is a co-sharer of certain land with respondent Nos. 3 to 5. In 1963 respondent Nos. 3 to 5 filed a suit in the court of the Assistant Collector, First Class, Morada-bad, under Section 59 of the U. P. Tenancy Act seeking a declaration that they were the owners to the extent of 5/6th share of the land comprised in Schedule I annexed to the plaint and the petitioner was the owner of the remaining l/6th. The peti tioner contested the suit on various grounds. He contended that earlier in 1950 he had filed a suit for partition and an ex parte decree was passed in his fa vour declaring him to be the owner of l/3rd share and he was put hi posses sion of the one-third share through a dakhalnama. The ex parte decree was later set aside and a fresh decree was passed in 1952 allotting to him only a one-sixth share, but he continued hi possession of the one-third share which he had already occupied. His conten tion was that the opposite parties had (failed to apply for restitution under Sec tion 144, Civil Procedure Code and by virtue of sub-section (2) thereof the suit was barred. It was further con tended that he perfected his title to the extent of one-third share through ad verse possession as he remained in con tinued possession from May 16, 1950 on wards. The suit was dismissed by the trial court on January 30, 1964 on the ground that the suit as framed was not maintainable. The trial court repelled the petitioner's contention that he had acquired a title through adverse pos session. There was an appeal against that order and the Additional Commis sioner by his order dated August 4, 1964, allowed the appeal, set aside the decree and order of the trial court and decreed the suit of the plaintiffs (respondent Nos. 3 to 5) declaring that they were the co-tenants of the land along with the peti tioner and that their share In the holding was 5/6. The petitioner filed a second appeal which has been dismissed by the Board of Revenue. The petitioner has now filed this writ petition chal lenging the orders of the Additional Com missioner and of the Board of Revenue.
(2.) LEARNED counsel for the peti tioner has raised three contentions. His first contention is that the suit is barred by sub-section (2) of Sec. 144, Civil Pro cedure Code. Sub-section (1) of Section 144, Civil Procedure Code provides for restitution where a decree has been va ried or reversed and sub-section (2) there of bars a fresh suit where no such ap plication is made. In my opinion that provision of the Civil Procedure Code has no application. Where an ex parte decree is set aside, it cannot be said] that the decree has been varied or re versed. A decree can be varied or revers ed on appeal or in some similar proceed ings. When an ex parte decree is set aside, a new decree is passed thereafter and that decree cannot be said to be the result of any variation or reversal of any prior decree. A restitution in such a case may be claimed under Section 151, Civil Procedure Code. But sub-sec tion (2) of Section 144, Civil Procedure Code will not come into play at all so that it cannot be said that a fresh suit would be barred. This view of mine is supported to a great extent by a deci sion of the Madras High Court in Kan-daswami Mudali v. Annamalai Reddi, AIR 1937 Mad 150. The second contention was that there _was no joint tenancy left after the suit for partition had been filed and decreed in 1952 anfl therefore the view taken by the Additional Commissioner and the Board of Revenue that the pos session of the petitioner was that of a co-sharer was wrong. I do not agree with that contention either. After the ex parte decree was set aside, the parties had been relegated to their original po sition, so that they became co-sharers once again in respect of the entire land. The fact that the petitioner continued toi remain in possession of a larger share than belonged to him did not in any way alter the character of his possession. In my opinion the character remained that of a co-sharer. It is now well settl ed that the possession of a co-sharer is on behalf of all the co-sharers and can not be said to be adverse to the remain ing co-sharer (see Mohammad Baqar v. Naim-un-nisa Bibi, AIR 1956 SC 548.)
(3.) LEARNED counsel for the peti tioner In the end contended that the suit as framed was not maintainable and it had been rightly dismissed by the trial court. He argued that in the circum stances of the case a suit for declaration of exclusive rights over 5/6th share was not maintainable when the petitioner had already been put into exclusive posses sion of one-third share in pursuance of an ex parte decree passed in 1950. There is no force in this contention. The ex parte decree has already been set aside and it cannot be said that the peti tioner remained in possession of one-third share by virtue of any decree in his favour. Moreover, such an objection ought to have been raised by him be fore the two lower appellate courts. He cannot be allowed to raise such a con tention for the first time before this Court in a petition under Article 226 of the Constitution.;