A cosharer can maintain a suit in ejectment as against trespassers, and the decree in such a suit enures to the benefit of all cosharers.

Judgement

S. P. MOHAPATRA, J. :-

This appeal has been filed by the plaintiff against the confirming judgment dated 12 8-1953 of the First Additional Subordinate Judge of Cut-tack arising out of a suit for ejectment. The plaintiffs case is that .03 acres of the disputed land appertains to Current Settlement plot No. 417 in Khata No. 493 which is a chandana holding, that the disputed plot belonged to one Karu-na Bai who died leaving as her heir a daughter of Chandramoni alias Chandi; and the plaintiff claims title on the basis of a Kabala registered on 30-9-1946 which was for a consideration of Rs. 100/- and executed by the said Chandramoni, According to the plaintiff, defendants 1 to 7 were tenants-at-will in respect of the disputed plot and after service of notice and several demands as they did not vacate the suit land the plaintiff has brought the action on the basis that defendants 1 to 7 are mere trespassers, and as such, are liable to be evicted.

2. Defendants 1 to 7 in their joint written statement contend to the effect that the father of defendants 1 to 3 purchased the disputed land in auction sale on 22-3-1926 in execution of a decree and took delivery of possesion on 20-12-1926. Their further case is that there was some misunderstanding as between defendants 1 to 3 and defendants 4 to 7 (who are the first cousins of the father of defendants 1 to 3) and the well-wishers of the family persuaded defendants 4 to 7 to give the suit lands to defts. 1 to 3; but defendant No. 4 not having agreed, defendants 1 to 3 and 5 to 7 executed a sham transaction in respect of the disputed land on 21-9-1946 in favour of their relations defendants 8 and 9 only with a view to put pressure on defendant No. 4. Subsequently, however, defendants 4 to 7 executed a sale-deed on 13-11-1946 for a consideration of Rs. 200/- in respect of the disputed land in favour of defendant No. 1 Who happens to be the eldest brother of the other two brothers (defendants 2 ana 3). They further allege in the written statement that the plaintiff is only one of the cosharers ana that one Panchai has joint interest in the disputed land and therefore the plaintiffs suit for ejectment is to fail on that ground also.

3. Both the Courts below have concurrently found that the transaction executed in favour of defendants 8 and 9 was a sham transaction and no right, title or interest passed on the basis of this transaction in their favour. This finding is final and is not controverted before us.

4. There is another finding which has been accepted by the learned counsel, appealing on behalf of the plaintiff-appellant, Mr. Mohanty, that the present appellant Asgar Ali is only a cosharer with Panchei who also has interest in the suit property. Mr. M. Mohanty very clearly asserts that if any decree is granted in favour of the present plaintiff it must be on behalf of both the cosharers and must enure to the benefit of both of them.

5. The learned lower appellate Court, however, has dismissed the plaintiffs appeal, and as a matter of that, the plaintiffs suit finding that the plaintiff not having acquired exclusive title to the property in dispute by virtue of his purchase from Chandramoni alone, who had only an undivided interest in the disputed plot, the present suit in ejectment is not maintainable and therefore is bound to fail. The proposition has been too widely and boldly stated. The judgment having been based upon this finding is vitiated in law, there being no specific finding as to the position of defendants 1 to 7, whether they are mere trespassers or they are tenants. There is no doubt over the position of law that if a suit in ejectment is brought by one of the landlords against the tenants, it is bound to fail as not being maintainable as the entire body of the landlords is not represented. The proposition relied upon by the learned lower appellate Court holds good only in respect of a suit brought by landlord as against tenants in ejectment. Mr. Mohanty, appearing on