Moharram Ali & another Vs. Mohammad Madhu Mia & others, 41 DLR (AD) (1989) 92

Case No: Civil Appeal No. 9 of 1987

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. T. H. Khan,,

Citation: 41 DLR (AD) (1989) 92

Case Year: 1989

Appellant: Moharram Ali

Respondent: Mohammad Madhu Mia

Subject: Recovery of Possession,

Delivery Date: 1988-12-4

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
 
Moharram Ali & another
...................Appellants
Vs.
Mohammad Madhu Mia & others
…….........Respondents
 
Judgment
December 4, 1988.
 
Specific Relief Act, 1877 (I of 1877)
Section 56
A co-sharer in exclusive possession of a separate and well defined share, against another co-sharer who threatens the former with dispossession the former is entitled to retain possession. This question was rightly answered by the trial Court and the appellate Court confirming right to retain possession till partition by mets and bounds but the learned Single Judge on an erroneous view of law reversed their decision and thus the appeal is allowed and the order of the High Court Division be set-aside and of the trial court and the Appellate court be restored…………….(10)
 
Cases Referred to-
Robert Watson & Co. v. Ram Chand Dutta and others, 18 ILR, Cal. 10, Abdul Gani Talukder v. Rushan and others, 12 DLR 40; Sefatulla Sheikh v. Mst. Abjannessa Bibi, 5 DLR 39; Kumudini v. Rashik, 11 CWN 517; Kameswari Dasya v. Sishuram Deka, AIR 1924 Cal. 792 and Ram Ray Singh v. Rajendra Singh, AIR 1943 All. 247.
 
Lawyers Involved:
T.H. Khan, Senior Advocate, (MA. Wahab Miah, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellants.
M.A. Jalil, Advocate-on-Record— For Respondents Nos. 1, 4-8.
Ex Parte — Respondents Nos. 2, 3, 9 & 10:
 
Civil Appeal No. 9 of 1987
 
JUDGMENT
Shahabuddin Ahmed J.
 
          Plaintiffs are the appellants and this appeal has been brought by special leave to consider a question of considerable public importance. It is whether a co-sharer in ejmali property, when he has been in exclusive possession of a specific and separate share thereof, well demar­cated by boundaries, is entitled to retain his posses­sion till legal partition, by an order of injunction against another co-sharer who threatens him with dispossession. Both the trial Court and the appellate Court, on a concurrent finding, answered the ques­tion in the affirmative; but the learned Single Judge of the High Court Division in revision answered in the negative.
 
2. This arises from O. C. Suit No. 175 of 1978 in the First Court of Munsif, Bajitpur. The suit land was held in jote right by Aidhar alias Haider Sheikh and on his death his only son, Hossain Ali, inherited and possessed it. On the death of Hossain Ali his four sons and one daughter inherited it. The sons were Eksad Ali (plaintiff No. 2), Safar Ali (pro-defendant No. 2), Pasand Ali (father of defendant No. 1, Madhu) and Ahad Ali, while the daughter was Aptarunnessa (pro-defendant No. 3). Ahad Ali died without any issue but before his death he had given 96-1/2 decimals of his share to plaintiff No. 1, Maharram Ali, who is son of plaintiff No. 2 Eksad Ali, by a Heba-bil-Ewaz dated 28 January 1966; at the same time Ahad Ali gave his remaining share, 65-1/2 decimals, to defendant No.1 Madhu and his step­brother Sadhu alias Sadaruddin. Then Safar Ali gifted his entire share to plaintiff No. 1 alone by a Heba-bil-Ewaz dated 10 November 1977, and it is this Heba, which, according to plaintiffs, enraged defen­dant No. 1 and triggered the trouble. Case of the plaintiffs is that by an amicable partition the co-sharers have been in exclusive possession of their re­spective shares for about 20 years. Plaintiffs share has been separated from shares of other co-sharers by specific boundaries and it is the plaintiffs who have been paying rent all along. After the Heba-bil-Ewaz in favour of plaintiff No. 1 on 10-11-77, defendant No. 1 gave out for the first time that Aidhar Sk. alias Haider Sk. had died leaving not only one son, Hos­sain Ali, but also one daughter named "Unar Ma" and that from the heirs of Unar Ma including Mo­hammad AH and Abdul Ali defendant No. 1 purchased their shares by three registered kabalas Exts. A and A (1) dated 13 March 1978 and kabala Ext. A (4) dated 28 April 1978. These kabalas, according to plain­tiffs, are false and collusive documents executed by fictitious persons as Aider Sk. had no daughter like Unar Ma'. On the strength of these kabalas defendant No. 1 threatened the plaintiffs with dispossession from their specific shares whereupon they filed the suit for permanent injunction to restrain the defen­dants from disturbing their possession.
 
3. The suit was contested by defendant No. 1 alone denying the material allegations of the plain­tiffs. His case, as already referred to, is that Haider Sk. left a daughter named 'Unar Ma' whose heirs transferred her share by the kabalas Exts. A, A (1) and A (4) in 1978. He denied the amicable partition or ex­clusive possession of the plaintiffs in any specific share of the property which, he claimed, remained 'ejmali' and as such no injunction can issue against him. The trial Court on consideration of evidence ad­duced by both the parties found the plaintiffs to be in exclusive possession of separate and well demarcated shares, and on that basis, decreed the suit by a judg­ment dated 30 June 1979. This judgment was con­firmed in appeal by the Additional District Judge by judgment dated 31 January 1981 with an additional finding that Aidhar Sk. had no daughter named Unar Ma, but 'Unar Ma' the ostensible executant of the disputed kabalas, was a fictitious person invented by defendant No. 1 who could not bring any witness in support of his claim excepting himself. The learned Single Judge, however, held by the impugned judg­ment dated 27 May 1986, in Civil Revision No. 1484 of 1981, that since the parties were co-sharers in respect of the suit land one co-sharer could not be prevented by injunction from claiming and exercising his right over any part of the property.
 
4. It may be mentioned here that after filing the suit the plaintiffs got a temporary injunction re­straining defendant No. 1 from disturbing their pos­session in their specific areas of the suit land. But the order of injunction was violated by defendant No. 1 on two occasions in respect of two plots of the suit land. Thereupon the plaintiffs filed Miscellane­ous Cases Nos. 144 of 1978 and 35 of 1979 under Order XXXIX, rule 7 Civil P.C. for punishment of defendant No. 1. Both the Miscellaneous cases were allowed and defendant No. 1 was held guilty and con­victed and sentenced to civil imprisonment. Against this order of conviction in each case, defendant No. 1 preferred two appeals which were heard along with the appeal against the decree in the suit but both the appeals were dismissed by the learned Additional District Judge. Thereupon the order of conviction was challenged in Civil Revision Cases Nos. 1483 and 1485 of 1981; which were heard by the learned Single Judge, along with Civil Revision No. 1484 of 1981, that is, in the instant case. The learned Sin­gle Judge allowed all these Revision Cases and set aside the order of conviction and sentence. Leave to appeal was also sought against the order setting aside the conviction in each case, but it was refused and consequently leave was granted only in respect of the High Court Division's order made in Civil Revision No. 1484 of 1981 dismissing the plaintiffs' O.C. Suit No. 175 of 1978.
 
5. Mr. T. H. Khan, learned Counsel for the appellants, has referred to all the three judgments in this suit, namely, that of the trial Court, appellate Court and the revisional Court. He has pointed out that the concurrent finding of the trial Court and the appellate Court that the plaintiffs have been in ex­clusive possession of their separate and specific shares, which are clearly demarcated "by ails", has not been disturbed or even referred to, by the learned Single Judge. The learned Counsel has also referred to the evidence of P.Ws. 1, 2 and 3 as well as of D.W. 1, who is defendant No. 1 himself, to the effect that the plaintiffs have been in exclusive possession of their separate shares which have been demarcated by boundary lines or 'ails' and which have been shown in the Sketch Map drawn in the plaint. D.W. 1, though he denied, in examination-in-chief, the plaintiffs claim of separate and exclusive posses­sion, has admitted in cross-examination that the plaintiffs have been in possession of their shares which are demarcated by boundaries. Furthermore, the learned Counsel has pointed out, the finding of the appellate Court that Aidhar Sk. left no daughter like 'Unar Ma' and that the claim of defendant No. 1 that he purchased the shares of Unar Ma's heirs is false has also not been disturbed by the learned Single Judge. The learned Single Judge is found to have proceeded on the assumption that whether the plain­tiffs exclusively possessed any specific shares of the suit-land, or not, if they are co-sharers in the joint land, remedy by way of injunction would not be available to one co-sharer against another. The learned Single Judge observed:
 
"It appears from the facts as stated in the plaint that the defendant no. 1 got some portion from Ahad Ali, one of the sons of Hossain Ali through Heba-bil-Ewaz and plaintiff also claimed certain portion of land in the same jote.........It apparently appears that the plain­tiff and the defendant No. 1 are co-sharers."
 
Thus upon this finding that the parties are co-sharers, the learned Single Judge held that the princi­ple laid down in the case of Robert Watson & Co. v. Ram Chand Dutta and others, 18 ILR, Cal.10 is applicable to the present case, and as such, no in­junction can be issued against the defendants as prayed for by the plaintiffs.
 
6. Mr. T.H. Khan has contended that the facts of "Robert Watson & Co. v. Ram Chand Dutta" are quite distinguishable from that of the instant case and that the principle laid down in that case has been misconceived by the learned Single Judge. The learned Counsel has contended that the principle of law as explained in the case of Robert Watson rather supports the appellant's case. He has also relied upon the following cases, Abdul Gani Talukder v. Rushan and others, 12 DLR 40; Sefatulla Sheikh v. Mst.Abjannessa Bibi, 5 DLR 39; Kumudini v. Rashik, 11 CWN 517; Kameswari Dasya v. Sishuram Deka, AIR 1924 Cal. 792 and Ram Ray Singh v. Rajendra Singh, AIR 1943 All. 247. In all these cas­es the principle followed is that when a co-sharer of a joint property is in exclusive possession of a spe­cific and well defined portion, he cannot be disturbed by another co-sharer who might have right over the entire property, but his remedy lies in partition. I need not refer to all these cases but I shall consider the cases of the Dacca High Court besides the Wat­son's case.
 
7. In the case of Sefatullah, a learned Single Judge of the then Dacca High Court held that "a per­son is not entitled to oust his co-sharer from a plot of land in exclusive possession of the latter on the plea that he has got title to every inch of the joint property and that if he feels that his co-sharer is in possession of some lands in excess of his share, his remedy lies in a suit for partition. In the case of Ab­dul Gani v. Rushan, Imam Hossain Chowdhury, J, as he was then, held:
 
"It is no doubt true that every co-sharer has equal right of enjoyment in every part and parcel of a joint land. If one co-sharer is in possession of a specific part of a joint land, the other co-sharers cannot dispossess him without a suit for partition."
 
The learned Judge then referred to the Principle of law as to partition as elucidated in "Freeman on Co-tenancy and Partition" and also relied upon the decision of the Privy Council in "Robert Watson & Co. v. Ram Chand Dutta and others" on which the learned Single Judge has also relied in the instant case.
 
8. This case of Robert Watson & Co. has been also reported in 17 Indian Appeals, 110. It is a decision of the Privy Council upon an appeal from the decision of the Calcutta High Court and the Board's judgment was delivered by Sir Barnes Pea­cock. This case arose from a suit filed in the Court of District Judge, Midnapor, by the plaintiff-respondent Ram Chand Dutta against his co-sharer Robert Watson & Co.—a body of indigo-planters praying for joint possession of the ejmali land or in­junction. Plaintiffs share in the joint property was to the extent of two-third of fourteen annas—a fact not denied by the defendants who were engaged in profitable indigo cultivation of the entire ejmali land treating it as if it were their "own and exclusive" property. The principal question of law raised in that case was as to the right of tenants-in-common, inter se, to cultivate or to restrain the cultivation of the land. Both the trial Court and the appellate Court, namely the High Court, on a finding that the acts of the defendants amounted to actual ouster of the plain­tiff, decreed the suit allowing the plaintiff s prayer for joint possession with the defendants, in the alter­native, granting injunction to restrain the defendants from cultivating indigo or anybody else from doing so. But their Lordships of the Privy Council took the view that the judgment and decree of the courts in India were erroneous and held as follows:
 
"It seems to their Lordships that if there be two or more tenants in common, and one (A) be in actual occupation of part of the estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant in common (B.) at­tempts to come upon the said part for the pur­pose of carrying on operations there inconsistent with the course of cultivation in which A is en­gaged, and the profitable use by him of the said part, and A, resists and prevents such entry, not in denial of B's title, but simply with the ob­ject of protecting himself in the profitable en­joyment of the land, such conduct on the part of A, would not entitle B, to a decree for joint pos­session. Their Lordships are further of opinion that the decree of the District Judge, so far as it orders an injunction to be issued, ought to be re­versed. It appears to their Lordships that, in a case like the present, an injunction is not the proper remedy."
 
9. It appears clearly that the facts of the Privy Council case are distinguishable from that of the in­stant case. In that case the co-sharer in exclusive possession of the joint land was sought to be pre­vented by injunction from carrying on with the indi­go cultivation, by a co-sharer out of possession in­tending to grow some other crops; in the instant case, the co-sharers in exclusive possession of their separate shares are seeking protection from court to maintain their exclusive possession from the on­slaught of the other co-sharer who got no possession in the particular share which is in plaintiffs exclu­sive possession. The principle of law as enunciated in the Robert Watson's case is not applicable to the instant case and it is found to have been misapplied by the learned Single Judge.
 
10. In the instant case the concurrent finding of the trial Court and the appellate Court is that the plaintiffs have been in exclusive possession over the suit land comprising separate and specifically demar­cated shares by boundaries. The finding is based upon the evidence of P.Ws. 1, 2 and 3 considered along with the evidence of D.W. 1, the only witness exam­ined by defendant No. 1. We find no reason to disturb the finding. Mr. Abdul Jalil, learned Counsel for the defendant-respondent does not dispute the principle of law as propounded in the cases referred to above; but he argues that though defendant No. 1 (D.W.1) admit­ted exclusive possession of the plaintiffs, he did not say that the exclusive possession covers the entire suit land claimed by the plaintiffs. The learned Coun­sel has tried to show us that the plaintiffs' exclusive possession covers about 9 kanis of land which, is about three and half acres; whereas, according to the plaint the plaintiffs claim a larger area measuring 4.46 acres. This is for the first time that this ques­tion as to the exact area under exclusive possession of the plaintiffs has been raised before us. It was not an issue before any of the courts below including the High Court Division, and as such it cannot be enter­tained here. Moreover, this point is sought to be raised when the main ground on which the suit was contested all-through has fallen to the ground. The only question of law agitated in the suit all through was whether an injunction could issue at the instance of a co-sharer in exclusive possession of a separate and well defined share, against another co-sharer who threatens the former with dispossession. This ques­tion was rightly answered by the trial Court and the appellate Court but the learned Single Judge on an er­roneous view of law reversed their decision.
 
11. In the result, the appeal is allowed; the order of the High Court Division is set aside and that of the trial Court and the appellate Court is restored. The respondent will bear the cost of the appeal.
 
Ed.