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Petitioner: ELIJAN BEWA VS Respondent: ABDUS SAMAD AND OTHERS
P L D 1967 Dacca 682
P L D 1967 Dacca 682
Before Muhammad Idris, J
ELIJAN BEWA‑Appellant
Versus
ABDUS SAMAD AND OTHERS‑Respondents
Second Appeal No. 123 of 1961, decided on 6th May 1965.
Co‑sharer‑Out of possession‑Remedy lies in suing other co‑sharer for joint possession and compensation or mesne profits if any‑One co‑sharer claiming to be owner and in possession of entire land demanding profits accrued out of mulberry leaves of trees standing on land and alleged to have been taken away and sold by another co‑sharer Possession of such co‑sharer not established on evidence‑Mere suit for recovery of price of mulberry leaves without suing at same time for joint possession or partition‑Not maintainable.
Abu Shahid v. Abdul Hoque Dobhash and another A I R 1940 Cal. 363 and Baijan Singh and others v. Ramratan Prasad and others A I R 1940 Pat. 384 distinguished.
Muhammad Jani Alam for Appellant.
Syed F. Ahsan for Respondent No. 1.
JUDGMENT
This appeal arises out of a suit for recovery of price of mulberry leaves alleged to have been taken away by defendants from trees standing in the case land of the plaintiff. .. The case land belonged to Keamatulla Shaik. He died leaving plaintiff a daughter, pro forma defendant No. 5 a widow and pro forma defendant No. 6 a son. There is no dispute about these facts,
Plaintiff's case is that pro forma defendants Nos. 5 and 6 relinquished their interest in the case land in favour of the plaintiff and that she has been in exclusive possession of the case land. It is alleged that in the middle of Agrahayan, 1364 B. S. defendants 1 to 4 entered into the case land, and took away 40 maunds of mulberry leaves from trees standing in the case land and that thereby plaintiff suffered loss to the extent of Rs. 800 00.
Defendants 1 to 3 contested the suit. Defence is a denial about the right, title and possession of the plaintiff in the case land. It is asserted that the holding to which the case land appertains was sold away for arrears of rent and was purchased by the landlord and that landlord settled it with pro forma defendant No. 5. Pro forma defendant No. 5 possessed the land after taking settlement from the landlord and subsequently sold it to defendant No. 4 and defendant No. 4 again sold it to defendant No. 1. It is averred that since the purchase, defendant No. 1 has been in exclusive possession of the case land.
The learned Munsif on a consideration of the evidence held that plaintiff failed to prove her prima facie title in the case land that serious questions of title were involved and that plaintiff was out of the possession of the land. In the circumstances, the suit was dismissed.
On appeal, the learned Subordinate Judge held that plaintiff had only a share in the case land as relinquished of the interest of pro forma defendants Nos. 5 and 6 in favour of the plaintiff was not proved. It was also found that pro forma defendant No. 5 transferred her interest to defendant No. 4 who again transferred it to defendant No. 1. The learned Subordinate Judge agreed with the finding of the trial Court that defendant No. 1 was in exclusive possession of the case land. Accordingly the decision of the learned Munsif was affirmed and the appeal was dismissed. Hence this appeal at the instance of the plaintiff.
Mr. Md. Jani Alam, the learned Advocate on behalf of the appellant has contended that the courts below erred in law in holding that defendant No. 1 had title in the case land. The contention of the learned Advocate is that as defence case of auction sale of the holding and purchase of it by the landlord and settlement of the case land in favour of pro forma defendant No. 5 by the landlord was not established, defendant No. 4 did not acquire any interest in the land by purchase from pro forma defendant No. 5 and that consequently defendant No. 1 also by purchase ‑from defendant No. 4 did not, acquire any interest in it. Pro forma defendant No. 5 is the widow of Keamatulla. Keamatulla died leaving a son pro forma defendant No. 6 and daughter plaintiff and the widow .pro forma defendant No. 5. Although pro forma defendant No. 5 did not acquire any interest on the basis of any settlement from the landlord, by inheritance from her husband, she acquired certain share in the land. By purchase from her defendant No. 4 acquired that interest. Defendant No. 1 has got that interest by purchase from defendant No. 4. So defendant No. 1 is a co‑sharer in the case land with the plaintiff. It has been found by the Courts below that pro forma defendants 5 and 6 did not relinquish their interest in the case land in favour of the plaintiff.
The learned Advocate has further contended that a co‑sharer is entitled to damages from a co‑sharer in possession and that the Courts below erred in law in not allowing a decree at least for 14 annas share out of the damages claimed. In support of this contention the learned Advocate has relied on the cases in Abu Shahid v. Abdul Hoque Dobhash and another (A I R 1940 Cal. 363) and Baijan Singh and others v. Ramratan Prasad and others (A I R 1940 Pat. 384).
In the case of Abu Shahid v. Abdul Hoque Dobhash and another it has been laid down that one co‑owner can sue another for accounts in case the latter receives rents and profits of the joint property in excess of his share, without instituting a suit for partition. But the present suit is not for accounts. In the present suit, plaintiff claimed that she was the owner of the entire land and that she was in possession of it exclusively. It has been found that she has not got 16 annas share in the land and that although defendant No. 1 is a co‑sharer, he is in exclusive possession of the case land on which the mulberry trees stand. Where a co‑sharer is out of possession, the remedy for him is to sue the other co‑sharer for joint possession and he can claim along with it compensation or mesne profits. This view finds support in the above‑mentioned case. The following observation has been made in that case:
"The remedy of the co‑sharer who is dispossessed must be to sue the other for joint possession and he can claim along with it compensation or mesne profits."
In the case of Baijan Singh and others v. Ramratan Prasad and others it has been laid down that co‑sharers who keep the other co‑sharer out of possession are liable to pay compensation to the latter who is therefore entitled to institute a suit for com?pensation. The facts of that case are distinguishable from those of the instant case. The facts in that case were that plaintiffs instituted the suit for recovery of possession corresponding to plaintiffs' proportionate share as joint thikadars in respect of the use and occupation of some land. In the present suit, plaintiff has claimed the entire land and has asserted that she has been in possession of the land. The principle laid down in the above?mentioned case will not apply to the facts of the present case. Plaintiff cannot get any relief in the present suit.
In the result, the appeal is dismissed with costs. The judgment and decree passed by the lower appellate Court are affirmed.
K. B. A.
Appeal dismissed.