Harnandan Das and Others vs Muhammad Kalim and Others

Beevor, J.—This is an appeal by the defendants against a decree passed on appeal by the 3rd Additional District Judge of Patna reversing the decision of the 2nd Subordinate Judge of Patna and decreeing the plaintiffs'' suit for partition of a four anna share in village Gauraiya Pali alias Kosta, tauzi No. 7620. It is undisputed that one Sobha Mahton at one time held a 5 anna 4 pies share in that tauzi. The plaintiffs'' case was that Sobha Mahto gave the whole of that share in usufructuary mortgage to one Tek Narayan Das in 1886 and that the mortgagee''s title had passed from Tek Narayan Das to one Dilchand Das and from him to one Zahur Alam, who was succeeded by his heirs; and they claimed that the mortgagors'' right was purchased in 1897, by one Ajodhya Prasad in execution of a decree against Sobha Mahto and Ajodhya Prasad sold that share to the plaintiffs, but the plain, tiffs discovered that 1 anna 4 pies share had already been sold at auction and purchased by one Lala Halumant Lal.

Therefore, the plaintiffs claimed only 4 annas share and they pleaded that they were in possession through the usufructuary mortgagees. The original Court held that the plaintiff had neither title nor possession over the share claimed and specifically found that the mortgagees were not in possession. The lower appellate Court found that the plaintiff''s title was quite clear but further found that neither Dilchand Das nor Zahur Alam nor his heirs had ever been in possession of the mortgaged property. He then continued his judgment as follows:

I may also note bore that it is an established principle of law that the possession of one cosharer will be considered to be the possession of the other cosharer unless there be a clear ouster. In this case if there is ouster it is not of the plaintiff as cosharers but of their ijaradars. So in this view also the plaintiffs would be held to be in possession and can maintain this suit for partition.

In view of my conclusion regarding possession, it is unnecessary to consider whether the finding of the learned Additional District Judge on the question of title is a legal finding or not. It is urged for the appellants that the principle which the learned Additional District Judge has applied in reaching his finding regarding possession cannot be applied in favour of the plaintiff who admittedly neither has any actual physical possession nor any present right to such physical possession because the usufructuary mortgage is admittedly still unredeemed. It is also contended that as the plaintiff had claimed in his plaint to be in possession through the usufructuary mortgagees he should not have been permitted to make out a different case on appeal. In support of the decision of the learned Additional District Judge Mr. Manuk for the plaintiff-respondent relied on a passage in the judgment of the Judicial Committee in Midnapore Zamindary Co. Ltd. v. Naresh Narayan AIR 1924 PC 144 at p. 635:

The proprietary interest in the lands is admittedly vested in the plaintiff and the Midnapore Company as cosharers, who hold the lands in common. Where lands in India are so hold in common by cosharers, each cosharer is entitled to cultivate in his own interests in a proper and husbandlike manner any part of the lands which is not being cultivated by another of his cosharers, but he is liable to pay to his cosharers, compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a cosharer is not an ouster of his cosharers from their proprietary right as cosharers in the lands. When cosharers cannot agree as to how any lands held by them in common may be used, the remedy of any cosharer who objects to the exclusive use by another cosharer of lands held in common is to obtain a partition of the lands. No cosharer can, as against his cosharers, obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them.

Shortly after that passage their Lordships quoted a passage from the decision in Watson & Co. v. Ram Chand (1991) 18 Cal. 10. Another passage from the judgment in Watson & Co. v. Ram Chand (1991) 18 Cal. 10, at p. 21 of the report runs as follows:

It was contended on the part of the plaintiffs-respondents, that the acts of the Watsons amounted to what in England is called an actual ouster, and that the plaintiffs were entitled to a decree ordering them to be put into ijmali possession with the defendants, but it appears to their Lordships that the plaintiffs have not established a right to have such a decree; and for the same reason they think that so much of the decree of the District Court as declares that they are entitled to get joint possession ought to be reversed. 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.

It will be noticed how the words "held in common" are repeated almost like a refrain in the passage quoted from Midnapore Zamindary Co. Ltd., v. Naresh Narayan AIR 1924 P.C. 144 and the words "tenants in common" appear In the passage cited from Watson & Co. v. Ram Chand (91) 18 Cal. 10. In Coke''s Littleton, 188b, the definition of "tenancy in common" is quoted from Littleton as follows:

Tenants in common are they, which have lands or tenements in fee simple, fee taile or for terme of life etc., and they have such lands or tenements by severall titles, and not by a joynt title, and none of them know of this his severall, but they ought by the law to occupie these lands or tenements in common, and pro indiviso to take the profits in common. And because they come to such lands or tenements by severall titles, and not by one joynt title, and their occupation and possession shall be by law between them in common, they are called tenants in common.

and in Blackstone''s Commentaries, vol. II 191, it is stated:

Tenants-in-common are such as hold by several and distinct titles, but by unity of possession, because none knoweth his own severalty, and therefore they all occupy promiscuously. This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time.

I think it is clear that when it is stated that[ persons hold land in common or as tenants in common the reference is to the form of their possession in which there is unity and not to the nature of the titles held in which there may be diversity.

u/s 44, T.P. Act, a usufructuary mortgagee of a share in immovable property acquires his transferor''s right to joint possession or over common or part enjoyment of the property and thereafter it cannot be said that the mortgagor, so long as the mortgage subsists, has a unity of possession with his co-owners. In fact if he attempts to exercise any joint possession or common enjoyment of that property while the mortgage still subsists he is liable to a suit for ejectment at the instance of his own mortgagee, a fate which actually seems to have overtaken one of the predecessors-in-interest of the plaintiff-respondent. I hold, therefore, that although the plaintiff may be a co-owner with other cosharers in the tauzi in question he has not now and has not had since the usufructuary mortgage was created any such unity of possession with them as would justify a conclusion that he and they have been holding this tauzi or -the lands of this tauzi in common. The basis on which the learned Additional District Judge held the plaintiff to be in possession, therefore, fails and in fact it cannot be said that he is in possession. Moreover, as the mortgage according to the plaintiff-respondent himself is still unredeemed he has no present right to such possession. His suit for partition must, therefore, fail.

I would point out that possibly different considerations might have arisen had the usufructuary mortgage not covered the entire share of Sobha Mahto, but I need not consider that matter further. As a result of my findings, the appeal must be allowed and the suit dismissed with costs throughout to the contesting defendant.

Fazl Ali C.J.

I agree to the order proposed.