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High Court Of Calcutta
S. B. SINHA, S. N. BHATTACHARJEE
MINOR NANTU BAG - Appellant
Versus
RASANA BALA DASI - Respondent
S. A. 874 Of 1962
Decided On : 04/27/2000
CO-OWNERSHIP - POSSESSION - TRESPASS - RIGHT TO RECOVER POSSESSION - CO-OWNER'S RIGHT TO RECOVER POSSESSION OF ENTIRE PROPERTY FROM TRESPASSER - EFFECT OF DECREE - LEGAL PROVISIONS AND INTERPRETATIONS.
Fact of the Case:
Plaintiff, a co-owner of an immovable property, filed a suit against the defendant, a trespasser, claiming possession of the entire property. The defendant claimed title through the heirs of one of the co-owners who had allegedly given up their life interest in favor of the defendant's predecessor-in-title.
Finding of the Court:
The court held that the plaintiff, as a co-owner, had a right to possess every inch of the land and was entitled to recover possession of the entire property from the trespasser. The court further held that such recovery of possession would enure to the benefit of all the co-owners.
Issues: 1. Whether a co-owner is entitled to maintain an action for trespass against a wrongdoer. 2. Whether in such circumstances the court should give the plaintiff-cosharer a decree for joint possession with the trespassor. 3. Whether the court should give such a decree for joint possession if the other co-sharers were impleaded as pro forma parties in the suit.
Ratio Decidendi: 1. A co-owner has a right to possess every inch of land and is entitled to file a suit for possession either on the basis of title or prior possession in the event of dispossession by a trespasser (Articles 64 and 65 of the Limitation Act, 1963). 2. A co-owner can recover possession of the entire property from a trespasser, even if the other co-owners have not raised any objection to the eviction (Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335). 3. Such recovery of possession would enure to the benefit of all the co-owners.
Final Decision: The court dismissed the appeal filed by the defendant and upheld the judgment and decree passed by the lower court.
Key Points: - A co-owner has a right to possess every inch of land and can file a suit for possession on title or prior possession (!) (!) (!) . - A co-owner can recover possession of the entire property from a trespasser, even if other co-owners have not objected to the eviction (!) (!) (!) . - Recovery of possession by a co-owner would enure to the benefit of all co-owners (!) (!) (!) . - The plaintiff, having proved title, is entitled to recover possession of the entire property in a representative capacity for all co-owners (!) (!) (!) . - A decree for specific demarcation is not applicable; delivery of possession relates to the share of the plaintiff, and joint possession among co-owners is recognized (!) (!) (!) . - Impleading all co-owners as parties ensures no derogation of interests and allows the court to grant relief without fettered discretion (!) (!) (!) . - Decisions contrary to this view are overruled under the changed statutory law post-Limitation Act, 1963 (!) (!) (!) . - The appeal is dismissed as it lacks merit, with no order as to costs (!) (!) .
( 1 ) THIS second appeal has been referred to the Division Bench by an order dated 30th April, 1974 stating :-"one of the points involved in this appeal is whether a co-shares of an immovable property is entitled to maintain an action for trespass against a wrong-doer and whether in such circumstances the Court should give the plaintiff-cosharer a decree for joint possession with the trespassor the court should give such a decree for joint possession the other co-sharers who might have been impleaded as pro forma parties in the suit. My attention has been drawn to various decisions, namely, (1929) 49 Cal. LJ 83 : (AIR 1929 Cal. 28), 58 CLJ 133-34 (1970) 74 Cal. WN 622 : (AIR 1970 Cal 444) and AIR 1930 Cal. 113, which not take consistent view on the points. In my view, the points involves in the appeal are of sufficient importance to be considered by the Division Bench. Therefore, refer the appeal to the Division Bench. "
( 2 ) ). The defendant is the Appellant in this appeal.
( 3 ) ). The plaintiff-respondent No. 1 has filed a suit against the appellant herein claiming interm alia for a declaration that the plaintiff has 1/3rd interest in the suit properties.
( 4 ) IN the plaint the plaintiff-respondent, inter, alia, contended that she and her two co-sharers who were added as pro forma defendants are in peaceful and joint possession of C. S. plot No. 59. In 1365 B. S. the plaintiff and two co-sharers grew paddy in the suit plot but the appellant herein with the help of his men and labourers forcibly started cutting paddy and thereby dispossessed the plaintiff and pro forma defendant Nos. 2 and 3.
( 5 ) IN his written statement the defendant, inter alia, raised the plea that the plaintiff and pro forma Defendant No. 2 gave up their life interest in the 2/3rd share of the disputed tenancy in favour of Sital Bag, one of the Co-sharers, who thereby become holder 16 annas share in the disputed tenancy and possessed the properties of the tenancy exclusively.
( 6 ) ). The Appellants claims his right, title and interest through the heirs of the said Sital Bag. pro forma Defendant No. 3, however, did not support the case of the Appellant herein.
( 7 ) ). The questions which arise for consideration in this Second Appeal is as to whether the plaintiff-first respondent being one of the co-owners is entitled to possession of the suit land together with his co-shares or is only entitled to recover possession only in respect of his own share.
( 8 ) ). The learned Counsel appearing on behalf of the appellant submitted that keeping in view the decisions of this court in Joy Gopal Singh v. Probodh Chandra Bhattacharjee, reported in AIR 1935 Calcutta 646 : 40 Cal. WN 81, Naresh Chandra Basu-v. Haydar Shekh Khan, reported in (1929) 49 Cal LJ 83 : (AIR 1929 Cal. 28) and Krishna Sardar v. Sindhu Bala Dasi, reported in (1970) 74 Cal WN 622 : (AIR 1970 Cal 444), the plaintiff-first respondent would be entitled to recover possession only in relation to his own share despite the concurrent finding of fact arrived at by the Courts below to the effect that the defendant-appellant is trespasser and does not have any right, title and interest in the suit property.
( 9 ) ). The learned counsel appearing on behalf of the respondents,on the other hand, submitted that during pendency of the suit the plaintiff has purchased the share of other co-owners. According to the learned counsel, the Appellant being a treaspasser, the plaintiff will have the right to recover possession in respect of the entire property. Reliance in this connection has been placed on Harhar Bakshi Singh v. Mohammad Usman Khan, reported in (1929) 49 Cal LJ 43, Rajendra Narayan Roy v. Bhairabendra narayan Roy, reported in (1933) Cal LJ 152 : (AIR 1933 PC 85) Sheotahal Dube v. Lal Barain Prasad Chand, reported in AIR 1930 All 422 and Smt. Kanta Goel v. B. P. Pathak, reported in AIR 1977 SC 1599.
( 10 ) APART from the fact that the Court can in a given situation in ord
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