Sambhu Gosain and Another vs Piyari Mian

Agarwala, J.—This is an appeal by the defendants and arises out of a suit to recover plot No. 462 which belonged to one Alhad Mia. The latter died leaving two sons, Ramjan and Basarat. These two sons executed a usufructuary mortgage of the property in favour of the appellants for a period of seven years, expiring in 1340 Fasli. Basarat died leaving a minor son Abdin. In 1984, Ramjan and the mother of Abdin, as the latter''s guardian, executed a sale deed in favour of the plaintiff.

The present suit was to recover possession on the basis of this sale deed. The Court below has decreed the plaintiff''s suit.

In appeal it is now contend, ed that the mother of Abdin, being merely his de facto guardian, had no power to sell any immovable property belonging to him and that, consequently, the sale of his interest to the plaintiff was absolutely void. There can be no doubt of the correctness of the proposition in view of the decision of the Privy Council in Imambandi v. Mutasaddi AIR 1918 P.C. 11, but by the purchase the plaintiff indubitably acquired the eight annas interest of Ramjan and thus became a co-owner of the property.

The question therefore resolves itself into this: Is the plaintiff who has acquired the interest of Ramjan as a co-owner entitled as a co-owner to eject the defendants who are trespassers since the expiry of the mortgage under which they were in possession.

In Maganlal Dulabhdas Vs. Bhudar Purshottam, it was held that where a tenancy is entered into for a fixed; term with co-owners of property, and the tenant continues on sufferance after the expiration of the period of the tenancy, a suit brought to eject the tenant by one only of the co-owners is maintainable.

Similarly, in Ahmed Sahib Shutari v. Magnesite Syndicate Ltd. AIR 1915 Mad. 1214 it was held that one of several co-owners is entitled to maintain an action in ejectment against a trespasser without joining the other co-owners as parties to the action.

On behalf of the appellants reference was made to the decision in Hossein Mahomed v. Fakir Mahomed (09) 10 C.L.J. 618. The facts of that case were that several joint landlords had assented to a transfer of a non-transferable holding. The remaining cosharer landlords sued to eject the trespasser from their shares only and to recover possession of the whole holding on the basis of the defendant being a trespasser. It was held that the defendant could not be ejected from the holding as his transfer had been recognized by some of the cosharer landlords and that the plaintiff ought not to be given a decree for joint possession with the purchaser as he had sued for possession of the entire holding. The facts of that case are distinguishable from the facts of the Bombay and Madras cases.

Here, there is no question of the defendants not being trespassers. Their mortgage has-expired and if there had been no transfer to the plaintiff the mortgagors would have been entitled to recover possession. The plaintiff is the owner of a share of one of the mortgagors and in principle there is no bar to his obtaining possession of the mortgaged property.

The decision of the Court below must therefore be affirmed but this decision is without prejudice to the rights of the heirs of Alhad Mian and Basarat in this property. The respondent is entitled to his costs in this appeal.