Phulli vs Balwant

N.C. Jain, J.—This appeal has been filed by the plaintiff in a suit for permanent injunction which has been dismissed by both the Courts below. The facts of the case may in brief be noticed.

The plaintiff filed a suit giving rise to the present appeal on the averments that her father Mukhia was the owner and in cultivating possession of the suit land mentioned in para No. 1 of the plaint. Mukhia expired and she acquired the physical possession of the suit land. The defendant being strong person wants to dispossess the plaintiff. The suit was contested on the ground that the plaintiff is neither in possession of the suit land nor she has any interest in it. It is averred in the written statement that on the death of Mukhia, plaintiff along with her sisters Banti and Sarbati and her mother Parsi became owners of the suit land in equal shares. Defendant used to cultivate the suit land during the life time of Mukhia and after his death, Banti, Sarbati and Parsi had been receiving Batai from the defendant. The further stand of the defendant in the written statement was that since the plaintiff was not willing to give the land of her share to the defendant, he returned the possession of her share to the plaintiff. The suit, according to the defendant was hit by the principle of res judicata. The suit was further contested on the ground that the same was bad for nonjoinder and misjoinder of the necessary parties.

On the pleadings of the parties, the following issues were framed by the trial Court :

Whether the plaintiff is in possession of the entire suit land and is entitled to injunction prayed for ? OPP.

Whether the plaintiff has no locus standi to file this suit ? OPD

Whether the suit is barred by the principle of res judicata ? OPD.

Whether the suit is bad for misjoinder and non joinder of parties ? OPD.

Relief.

The trial Court after examining documentary as well as oral evidence found under issue No. 1 that the defendant along with other persons was in cultivating possession of the suit land. Issues No. 2 and 3 were decided against the defendant as being not pressed. Issue No. 4 was decided against the plaintiff and it was held that she should have impleaded Banti, Sarbati and Parsi. The trial Court in consequence of the findings under issued No. 1 dismissed the suit of the plaintiff. The plaintiff filed an appeal before the District Judge which has also been dismissed. The learned counsel for the plaintiffappellant has argued before me that the plaintiff is entitled to the decree for 1/4th share of the disputed land in view of the findings recorded by the Appellate Court. My pointed attention has been drawn to the following findings recorded by the Appellate Court :

When facts of the previous litigation, reflected in photo copy of the decree sheet Ex. D. 6, were put to the plaintiff in her crossexamination she denied the same on the ground that she did not remember. Said decree Ex. 6 conclusively proved that the plaintiff was owner in possession to the extent of 1/4th share only. The abovesaid sale deeds have not been challenged. Therefore, there should be no hesitation in holding that the shares of S/Smt. Parsi, Sarbati and Banti stood transferred in the name of the plaintiff along with others, as noticed hereinbefore. Under such circumstances I record a firm finding that the plaintiff was never in possession of the suit land whereas the defendant alongwith others was in cultivating possession thereof. The plaintiff was in possession of only of her 1/4th share of land. Finding of the learned trial Court on issue No. 1 is affirmed."

The argument of the learned counsel for the appellant is well merited and deserves to be accepted. Once the plaintiff is found to be in possession of 1/4th share of the disputed land, it is not understandable as to on what grounds the suit of the plaintiff can be dismissed in toto. In fact, the possession of the plaintiff over 1/4th share of land can be determined even from the pleadings of the defendant. It is the plea in the written statement that the plaintiff was not willing to give the land of her share to the defendant and, therefore, the defendant returned the possession of land to her of her share.

For the reasons recorded above, the suit of the plaintiffappellant deserves to be decreed qua 1/4th share of the disputed land. Consequently, the appeal in partly allowed. The plaintiff''s suit to the extent of 1/4th share of the suit land is hereby ordered to be decreed and qua rest of 3/4th share of the land, the suit shall stand dismissed with no order as to costs.