Baijan Singh and Others vs Ramratan Prasad and Others

Dhavle, J.—This application in revision arises out of a Small Cause Court suit for recovery of compensation, corresponding to plaintiffs'' proportionate share as joint thikadars, in respect of the use and occupation of 6 bighas 5 kathas and 12 dhurs of bakasht lands. The suit was decreed in part by the trial Court, and on behalf of the defendants who are petitioners before me, several Points have been taken. The most important point is that the suit was not maintainable because there was no exclusion of the plaintiffs as joint thikadars. This point does not appear to have been raised below, and the learned advocate for the opposite party has referred to the suit that was brought by the plaintiffs against their exclusion and was decided in their favour in October 1936.

In that suit the defence was a claim by Sadho Singh, defendant, 2 in the present suit and brother of the principal defendant, that he had a raiyati settlement in respect of the land in suit under his father or brother as among the thikadars. This suit was decided in favour of the plaintiffs. It is plain therefore that down to 1936 the plaintiffs were being kept out of the land by their cosharer thikadars under whom Sadho Singh had set up a raiyati title. I understand that the decision in that suit was appealed against not only by Sadho Singh but also by the present defendant 1. This was thus clearly a case where the defendants had kept their co-sharers, the plaintiffs, out of possession, and were therefore liable to pay compensation in accordance with the principle laid down in the well known decisions in Chandra Kishore Chakravarty Vs. Biseswar Pal and Sachindra Kumar Goswami, executor to the estate of Bashiram Pal and Another, , Shiva Narain Mahton v. Chandra Shekhar Prasad Singh AIR (1988) Pat 616 and Mt. Dulhin Shyam Sunder Koer Vs. Mt. Sheorachan Kuer, The contention that the suit was not maintainable must therefore be overruled.

It has also been contended that sugar, cane is grown in alternate years, only and that as it was grown in 1342, no sugarcane should have been allowed for in 1343; but this contention seems to overlook the fact that the sugarcane that was grown in 1342 was reaped in 1343, and in any Case I understand there is no evidence on the record regarding the growing of sugarcane in alternate years. The learned advocate for the petitioners has also urged that what should have been regarded as available for division between the cosharers was what witness 1 for the plaintiffs called the hakimi share of the produce after deducting the raiyati share from the total produce. The learned advocate for the opposite party has urged that what the witness was speaking of related to holding under an arrangement between the co-sharers and had no application to cases like the present where one set of co-sharers was excluded by the others. But even so we have in Baldeo Rai v. Ram Bkbal Singh, AIR (1919) Pat 892 a case where costs of cultivation and reaping to the extent of one-third were allowed in favour of a trespasser from whom mesne profits were recovered.

The co-sharer thikadar is clearly entitled to more favourable treatment. Taking all the circumstances into account, I think that the fairest course in the circumstances of this case would be to allow to the plaintiffs their proportionate share out of fifty per cent, of the value of the total produce, the deduction offered by the plaintiffs in their plaint being on the face of it absurdly low.

The only other point raised on behalf of the petitioners was the question of interest. The lower Court awarded interest at 6 per cent, and a quarter per annum ''by virtue of the provisions of the Interest Act;'' but it is common ground before me that under the Interest Act as authoritatively interpreted in recent decisions, no interest up to the date of the institution of the suit could be awarded in the present case at all. The result is that this application succeeds in part as indicated above, namely in respect of the amount available for division and as regards interest up to the date of the institution of the suit, which last must be disallowed.