Judgement

MUDHOLKAR, J. : This is an appeal by certificate from a judgment of the Patna High Court reversing that of the trial Court dismissing the plaintiffs suit for partition and separate possession of their half share in a house and for payment of compensation from May 2, 1947 to September 11, 1951 at the rate of Rs. 200 p.m. with interest and for payment of compensation at the same rate from the date of suit till the recovery of possession of their share in the house.

2. The facts which are not disputed before us are these: The property in dispute is situate within the limits of the municipality of Bhagalpur was purchased jointly by five persons, Jurimal, Gajanand, Ramasahai Sah, Jahuri Sah and Ramgali Sah. The first two of these are father and son (and were members of a joint Hindu family). Both of them are dead, Plaintiffs 1 to 4 are the sons and plaintiff 6 is the widow of Gajanand and plaintiff No. 5 is the widow of Jurimal. Jurimal, Gajanand (constituted a joint Hindu family) and plaintiffs 1 to 4 constituted a joint Hindu family. Ramsahai, Jahuri Sah and Ramgali Sah were brothers and were members of a joint Hindu family. Jahuri Sah is defendant No. 1 and Ramgali Sah is defendant No. 2. They, along with the remaining defendants, are members of a joint Hindu family of which Jahuri Sah is the karta.

3. The property in question was purchased by the two joint families, each family having half interest therein. The date of the transaction was June 26, 1942. At the time of the purchase of the property it was in the possession of Mohanlal Marwari as a tenant. He was evicted therefrom by a decree of the Court and thereafter it was let out to Government, the compensation having been settled at Rs. 100 per mensem. The Government vacated the house after some time where after the defendants occupied the house excepting a portion thereof which was in the occupation of Isri Sah and Shib Charan Sah as tenants paying a monthly rent of Rs. 30. Half of this rent was being realised by each family.

4. According to the plaintiffs when the defendants entered into possession of the property they agreed to pay Rs. 200 per mensem as compensation to the plaintiffs, family with respect to their half share in the property. They, however, did not pay any compensation to the plaintiffs despite the agreement.

5. On these allegations the plaintiffs instituted their suit. In the plaint they stated that Gajanand had another son named Shankarlal but he was given in adoption to Sreelal, P. W. 6 and he was, therefore, not joined as party to the suit.

6. The defendants denied the claim and stated that the suit was barred by the provisions of The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) (hereafter referred to as the Act) as well as by the rule of estoppel. They also raised the plea that under the contract entered into between the two families Rs. 50 p.m. was payable as compensation and not Rs. 200 p.m. as alleged by the plaintiffs. According to them the suit was barred by the rule of estoppel. They contended that the claim for compensation for a period prior to the expiry of 3 years from the date of suit was barred by time. They also raised some other contentions in the written statement but it is unnecessary to refer to them inasmuch as we must confine ourselves to the points urged before us by Mr. Sarjoo Prasad on their behalf. The points are : (1) that the suit for partition and separate possession was not maintainable; and (2) that the contract under which the plaintiffs claimed compensation is not enforceable. The suit is said to be not maintainable because (a) one of the co-owners of the property was not joined as a party to the suit and (b) also because it was barred by the Act. The contract for payment of compensation was said to be not enforceable as there was no ouster of the plaintiffs by the defendants.

7. The trial Court held that the provisions of the Act applied and by virtue of those provisions the plaint