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Minor Nantu Bag And Another v. Smt. Rasana Bala Dasi, And Others

Calcutta High Court

Apr 27, 2000

Judgment

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Factual and Procedural Background

This is a second appeal referred to a Division Bench by an order dated 30 April 1974 to consider whether a co-sharer of immovable property may maintain an action for trespass against a wrongdoer and whether the co-sharer can obtain a decree for joint possession with the trespasser, and related questions about impleading co-sharers.

The plaintiff-respondent No.1 sued the defendant-appellant claiming, inter alia, a declaration that she held a one-third interest in the suit properties and alleging peaceful and joint possession by herself and two co-sharers (who were impleaded as pro forma defendants). The plaint alleges that in 1365 B.S. the plaintiff and the co-sharers cultivated paddy on the plot but the appellant, with his men, forcibly cut the paddy and dispossessed the plaintiff and pro forma defendant Nos. 2 and 3.

The appellant (defendant) in his written statement claimed that the plaintiff and pro forma defendant No.2 gave up their life interest in the 2/3 share in favour of Sital Bag (one of the co-sharers), who became the holder of a 16-annas share and possessed the tenancy exclusively. The appellant asserts rights through heirs of Sital Bag (pro forma defendant No.3), but that claim was not supported. The core contested question in the second appeal was whether the plaintiff (a co-owner) is entitled to possession of the suit land together with co-sharers (i.e., whole property) or only to recover possession of her own fractional share.

Legal Issues Presented

Whether a co-sharer of immovable property is entitled to maintain an action for trespass against a wrongdoer.
Whether a co-sharer who sues a trespasser can obtain a decree for possession of the entire property (i.e., recover possession of the whole) or is limited to recovery only in respect of his/her own share.
Whether, when a co-sharer sues, other co-sharers must be impleaded as parties and what effect their presence or absence has on relief for possession.

Arguments of the Parties

Appellant's Arguments

The appellant's counsel relied upon earlier decisions (Joy Gopal Singh v. Probodh Chandra Bhattacharjee; Naresh Chandra Basu v. Haydar Shekh Khan; Krishna Sardar v. Sindhu Bala Dasi) to submit that the plaintiff-first respondent should be entitled to recover possession only in relation to his own share even though lower courts found the appellant to be a trespasser and without right, title or interest in the suit property.

Respondents' Arguments

The respondents' counsel submitted that during the pendency of the suit the plaintiff purchased the shares of other co-owners and thereby became entitled to a 16-annas share; in any event, because the appellant was a trespasser, the plaintiff had the right to recover possession of the entire property. Authorities were cited (Harhar Bakshi Singh v. Mohammad Usman Khan; Rajendra Narayan Roy v. Bhairabendra Narayan Roy; Sheotahal Dube v. Lal Barain Prasad Chand; Smt. Kanta Goel v. B.P. Pathak) to support the proposition that a co-owner can seek possession of the whole against a trespasser, particularly where other co-owners do not object.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Joy Gopal Singh v. Probodh Chandra Bhattacharjee, AIR 1935 Cal. 646 (40 Cal. WN 81)	Held that where plaintiff could prove title only to a small fractional share (4 annas) he was not entitled to recover possession of the whole.	The court acknowledged this holding and distinguished it on its facts; it is noted as a Calcutta decision on the point but not treated as dispositive in light of later Supreme Court authority.
Naresh Chandra Basu v. Haydar Shekh Khan, (1929) 49 Cal. LJ 83 : AIR 1929 Cal. 28	Held that a tenant in common is entitled to recover possession against a trespasser but cannot recover possession of the whole in a suit for ejectment.	The court treated this decision as a Calcutta view distinguishable on facts and held that later Supreme Court decisions changed the law; therefore it did not control the result in the instant case.
Krishna Sardar v. Sindhu Bala Dasi, (1970) 74 Cal WN 622 : AIR 1970 Cal. 444	Addressed issues including doctrine of part performance under S.53A of the Transfer of Property Act in a context where a co-sharer died during the appeal; earlier Calcutta decisions followed therein.	The court distinguished this case because it involved S.53A and a death during pendency leading to abatement; accordingly, it was not applicable to the present facts.
Harhar Bakshi Singh v. Mohammad Usman Khan, (reported as (1925) 90 IC 804 and also cited in other Calcutta reports)	Held that one co-sharer can sue a trespasser in ejectment on behalf of himself and other co-sharers.	Presented by respondents' counsel to support entitlement to recover the whole; the court referenced this as consistent with allowing co-owners to seek relief against trespassers.
Rajendra Narayan Roy v. Bhairabendra Narayan Roy, (1933) Cal. LJ 152 : AIR 1933 PC 85	Cited by respondents in support of the proposition that a co-owner can obtain relief against a trespasser.	Used by respondents and noted by the court as among authorities supporting recovery of possession of entire property where co-owners do not object.
Sheotahal Dube v. Lal Narain Prasad Chand, AIR 1930 All. 422	Held that where property is co-owned any one co-sharer may maintain a suit for possession of the entire property against a trespasser.	The court cited this decision as supportive precedent for allowing a co-sharer to recover possession of the entire property against a trespasser.
Smt. Kanta Goel v. B.P. Pathak, AIR 1977 SC 1599	Division Bench held that a co-owner is as much an owner of the entire property as a sole owner and thus can be treated as owner for relevant statutory purposes (context: eviction under rent control law).	The court relied on this Supreme Court decision to support the proposition that a co-owner has rights of ownership in the whole and thus can seek possession of the entire property; it was treated as authoritative guidance.
Udaychand Mahatab Chand v. Subodh Gopal Bose (Maharajadhiraj of Burdwan), AIR 1971 SC 376	Stated that exclusive possession by a co-owner, unless shown to be adverse, cannot confer a permanent right or title by adverse possession.	The court relied on this to explain that a co-owner's long possession is not adverse and does not create title; it supports the need to distinguish adverse possession claims.
Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620	Recognized that a suit for possessing title (as distinct from strict requirements under prior law) may be maintainable.	The court cited this to support that after the Limitation Act, suit for possession on title grounds is maintainable and not limited to proceedings under specific relief provisions.
Jarman Gomaz v. Ram Kumar Kaibarta, (1933) 58 Cal. LJ 133 : AIR 1934 Cal. 127	Held that a co-sharer landlord who made other co-sharers pro forma defendants could maintain a suit for ejectment and obtain decree for recovery of possession to the extent of his share jointly with pro forma defendants.	Cited by the court as a Calcutta decision bearing on extent of relief a co-sharer may obtain; treated as part of the jurisprudential background.
Pal Singh v. Sunder Singh (dead) by LRs., AIR 1989 SC 758	Restated that when other co-owners do not object to eviction sought by one co-owner, such a suit can be decreed; by analogy supports suits against trespassers as well.	The court invoked this Supreme Court reiteration to reinforce that lack of objection by co-owners permits a decree in favour of the suing co-owner and extended the logic to suits against trespassers.
Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184 : AIR 1976 SC 2335	Held that a co-owner has a legal right to possess every inch of land and in that sense is an owner of the property (i.e. co-ownership confers ownership of whole jointly).	The court relied heavily on this Three-Judge Bench apex authority as settling the law that a co-owner owns every part of the composite property; used to hold inconsistent Calcutta decisions overruled and to justify allowing a co-owner to recover possession of the whole against a trespasser.
Kochkunju Nair v. Koshy Alexander, (1999) 3 SCC 482 : AIR 1999 SC 2272	Reiterated that ownership imports the right to possession, enjoyment and disposal; co-owners have equal rights and each has right to possession of every part jointly with others.	The court cited this Supreme Court decision to underscore the principle that co-ownership confers full rights of possession and to support its conclusion in favour of the plaintiff's entitlement to recover possession of the entire property.
Subhas Choudhury v. Kantilal Paul, I.L.R (1998) 2 Calcutta 128	Division Bench of the Calcutta High Court considered aspects of co-owner's right to evict/seek possession (contextual support).	Cited as a Division Bench decision that took the same aspect into consideration; used as part of the state jurisprudence aligning with the court's view.

Court's Reasoning and Analysis

The Division Bench's analysis proceeded in several discrete steps, grounded in statutory interpretation and precedent:

The court began by recognizing the procedural referral: the question whether a co-sharer can maintain a suit against a trespasser and, if so, whether he may be granted possession of the whole property required Division Bench consideration.
The court accepted the basic proposition that a co-owner has a right to possess every inch of land and that this right supports bringing a suit either on the basis of title or prior possession when dispossessed by a trespasser. It specifically cited Articles 64 and 65 of the Limitation Act, 1963, as enabling a plaintiff to file a suit for possession on the basis of title or possession and placing the onus on the defendant to prove adverse possession or better title.
The court emphasized the effect of the Limitation Act, 1963 in changing the legal position from the earlier Limitation Act, 1908 (Articles 142 and 144) — under the new scheme once a plaintiff proves title/possession, the defendant must show adverse possession to defeat the claim.
The court explained that jurisprudence (citing Maharajadhiraj of Burdwan / Udaychand Mahatab Chand v. Subodh Gopal Bose) makes clear that exclusive possession by a co-owner is not automatically adverse possession; without an adverse possession plea and proof, exclusive possession does not confer title against other co-owners.
The bench relied on Supreme Court authorities (notably Sri Ram Pasricha and Kochkunju Nair) to hold that a co-owner is legally an owner of the whole (jointly with others) and thus has a right to possession of every part of the property. The court treated earlier Calcutta High Court decisions taking a contrary view as distinguishable or overruled in light of apex court pronouncements.
The court noted procedural and practical considerations: when all co-owners are party to the suit (as plaintiffs or pro forma defendants) and none contests the relief, the court is not fettered from granting a decree for possession of the entire property under Order 7 Rule 7 CPC and established principles of co-ownership. The bench also pointed to execution difficulties and the impracticality of demarcating specific demarcated areas for delivery of possession to a single co-owner absent partition.
Applying these principles to the facts, the court observed that the plaintiff had pleaded title along with other co-owners and that the defendant-appellant's claim—the right to possess through a pro forma defendant—had been negatived by the courts below. Given that the other co-owners had not raised objection in relation to eviction, and that the defendant was a rank trespasser as found by concurrent findings of the lower courts, the plaintiff was entitled to recover possession of the entire property. The court found the appellant's cited decisions distinguishable on facts and also that the statutory law had changed the applicable legal position.

Holding and Implications

Holding: The appeal was dismissed and the judgment and decree of the lower court were upheld. The court held that the plaintiff, being a co-owner and in absence of objection by other co-owners (and given the defendant was found to be a trespasser), was entitled to recover possession of the entire suit property; such recovery would enure to the benefit of all co-owners. There was no order as to costs.

Implications

The direct effect is that the lower court's decree in favour of the plaintiff (for possession of the whole property) stands unchanged and the appellant's appeal was dismissed.
The court clarified that under Articles 64 and 65 of the Limitation Act, 1963, once a plaintiff proves title or possession, the defendant must establish adverse possession or a better title to defeat the suit for possession — a shift from the earlier Limitation Act scheme.
The bench emphasized that Supreme Court authorities (Sri Ram Pasricha; Kochkunju Nair; Smt. Kanta Goel and others) establish that a co-owner has rights of ownership in the whole property jointly; decisions to the contrary from this Court were held to be distinguishable or overruled to the extent inconsistent with apex law.
The court noted a practical consequence for execution: it may be impracticable to demarcate a specific area for delivery of possession to a single co-owner unless partition has occurred, and allowing a trespasser to resist such a decree could permit claims of adverse possession contrary to principles of joint ownership.
No broader new precedent beyond application of existing Supreme Court principles was asserted; rather the court applied and reconciled statutory change (Limitation Act, 1963) and Supreme Court authority to the present facts. The decision is the direct disposition of this appeal and upholds the decree below.

Judge concurrence: S.B. Sinha, J. wrote the opinion; S.N. Bhattacharjee, J. agreed. The appeal was dismissed.

Show all summary ...

S.B Sinha, J.:—This second appeal has been referred to the Division Bench by an order dated 30th April, 1974 stating:—

“One of the points involved in this appeal is whether a co-shares of an immovable property is entitled to maintain an action for trespass against a wrong-doer and whether in such circumstances the Court should give the plaintiff-co-sharer a decree for joint possession with the trespassor the court should give such a decree for joint possession the other co-sharers who might have been impleaded as pro forma parties in the suit.

My attention has been drawn to various decisions, namely, (1929) 49 Cal. LJ 83 : (AIR 1929 Cal. 28), 58 CLJ 133-34 (1970) 74 Cal. WN 622 : (AIR 1970 Cal 444) and AIR 1930 Cal. 113, which not take consistent view on the points. In my view, the points involves in the appeal are of sufficient importance to be considered by the Division Bench. Therefore, refer the appeal to the Division Bench.”

2. The defendant is the Appellant in this appeal.

3. The plaintiff-respondent No. 1 has filed a suit against the appellant herein claiming interm alia for a declaration that the plaintiff has 1/3rd interest in the suit properties.

4. In the plaint the plaintiff-respondent, inter, alia, contended that she and her two co-sharers who were added as pro forma defendants are in peaceful and joint possession of C.S plot No. 59. In 1365 B.S the plaintiff and two co-sharers grew paddy in the suit plot but the appellant herein with the help of his men and labourers forcibly started cutting paddy and thereby dispossessed the plaintiff and pro forma defendant Nos. 2 and 3.

5. In his written statement the defendant, inter alia, raised the plea that the plaintiff and pro forma Defendant No. 2 gave up their life interest in the 2/3rd share of the disputed tenancy in favour of Sital Bag, one of the Co-sharers, who thereby become holder 16 annas share in the disputed tenancy and possessed the properties of the tenancy exclusively.

6. The Appellants claims his right, title and interest through the heirs of the said Sital Bag, pro forma Defendant No. 3, however, did not support the case of the Appellant herein.

7. The questions which arise for consideration in this Second Appeal is as to whether the plaintiff-first respondent being one of the co-owners is entitled to possession of the suit land together with his co-shares or is only entitled to recover possession only in respect of his own share.

8. The learned Counsel appearing on behalf of the appellant submitted that keeping in view the decisions of this court in Joy Gopal Singh v. Probodh Chandra Bhattacharjee, reported in AIR 1935 Calcutta 646 : 40 Cal. WN 81, Naresh Chandra Basu v. Haydar Shekh Khan, reported in (1929) 49 Cal LJ 83 : (AIR 1929 Cal. 28) and Krishna Sardar… v. Sindhu Bala Dasi…., reported in (1970) 74 Cal WN 622 : (AIR 1970 Cal 444), the plaintiff-first respondent would be entitled to recover possession only in relation to his own share despite the concurrent finding of fact arrived at by the Courts below to the effect that the defendant-appellant is trespasser and does not have any right, title and interest in the suit property.

9. The learned counsel appearing on behalf of the respondents, on the other hand, submitted that during pendency of the suit the plaintiff has purchased the share of other co-owners. According to the learned counsel, the Appellant being a treaspasser, the plaintiff will have the right to recover possession in respect of the entire property. Reliance in this connection has been placed on Harhar Bakshi Singh v. Mohammad Usman Khan, reported in (1929) 49 Cal LJ 43, Rajendra Narayan Roy v. Bhairabendra narayan Roy, reported in (1933) Cal LJ 152 : (AIR 1933 PC 85) Sheotahal Dube v. Lal Barain Prasad Chand, reported in AIR 1930 All 422 and Smt. Kanta Goel v. B.P Pathak, reported in AIR 1977 SC 1599.

10. Apart from the fact that the Court can in a given situation in order to shorten litigation and avoid multiplicity of proceedings take into consideration the subsequent event to the effect that the plaintiff first respondent herein now has become 16 annas share, we are of the opinion that in principle also he is entitled to recover possession of the entire land form the Appellant.

11. A co-owner, has a right to possess every inch of land. Both in terms of Articles 64 and 65 of the Limitation Act, 1963 he is entitled to file a suit for possession either on the basis of title or prior possession in the event he is dispossessed by a trespasser.

12. In Maharajadhiraj of Burdwan, Udaychand Mahatab Chand v. Subodh Gopal Bose, reported in AIR 1971 SC 376, the law has been stated in the following terms (Para 11):—

“We are unable to appreciate the contention of the appellant that he had acquired a permanent right in the suit lands in view of the fact that he was in exclusive possession of the same for a long time. The appellant had not put forward a plea of adverse possession. Once it is held that he is a co-owner of the lands in question, his possession however long it might be unless it is adverse to the other co-owners cannot confer on him any right.”

13. A co-owner even in respect of a tenanted premises can issue a notice in terms of S. 106 of the Transfer of Property Act and further can file a suit for ejectment. the only requirement, therefor, being that the other co-owners may be impleaded as a party to the suit so that their right to deal with property in any other manner may not be disputed as for example, when an interest has been created in the tenant by the other co-owners.

14. In Smt. Kanta Goel v. B.P Pathak, reported in AIR 1977 SC 1599, the Division Bench has held (Para 7):

“This Court in Sri Ram Pasricha (1976) 4 SCC 184 : AIR 1976 SC 2335 clarified that a co-owner is as much as owner of the entire property as any sole owner of the property is” Jurisprudential, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property……….It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of S. 13(1)(f) it is not necessary to establish that the plaintiff is the only owner of the property for the purpose of S. 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledge landlord of the defendants. “That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner.”

15. We, in view of the aforementioned Supreme Court decision, hold that the plaintiff, in view of the fact that the other co-owners had not raised any objection as regard eviction of the appellant herein, would be entitled to recover possession of the suit property in its entirety. Such recovery of possession, however, would enure of the benefit of all the co-owners.

15A. The law since coming into force of the Limitation Act, 1963 has undergone a sea change. Whereas in terms of Articles 142 and 144 of the Limitation Act, 1908 the plaintiff was required not only to prove his title but also possession within 12 years from the date of filing of the suit; in terms of Articles 64 and 65 of the Limitation Act, 1963 plaintiff once proves his title and/or possession it is for the other side to show that he has acquired title by adverse possession.

16. Articles 64 and 65 of the Limitation Act, 1963, if so construed, in our considered view, lead to only one conclusion, viz. in a case where the plaintiff proves his title, or possession in respect of the property, the relief prayed in the plaint can be denied to him only in the event the defendant proves title by adverse possession or proves better title in the suit land. At one point of time the Court used to insist that in a case of sharer dispossession a person may take recourse to the provision of S. 9 of the Specific Relief Act equivalent to S. 6 of the Specific Relief Act, 1963. However, now a suit for possessing title may also be maintainable (see: Lallu Yeshwant Singh v. Rao Jagdish Singh reported in AIR 1968 SC 620).

17. The interpretation of the word ‘possession’ is no longer understood as real possession must be held to embrace within its fold constructive possession or even right to possess. Once right of possession is established, in case of any dispossession by a rank trespasser the plaintiff will be entitled to recover possession.

18. In a case as in the instant one the plaintiff has pleaded title along with other co-owners and such title having been proved, he must be held to have filed a suit in a representative capacity and in absence of any disagreement to the contrary by any other co-owner would be entitled to recover possession in respect of the entire property which would of course enure to the benefit of the other co-owners also.

19. It is a case where a suit has been filed by the plaintiff on the basis of mere dispossession on the ground that he was in exclusive possession thereof. In the plaint the plaintiff has categorically stated that he along with the pro forma defendants were the owners in respect of the properties in question and they have been dispossessed by the defendant-appellant. The defendant-appellant on the other hand rsised a plea of right to possess the said land through one of the pro forma defendants, viz. defendant No. 3, such a plea having been negatived, the issue as to whether the defendant No. 1 claims right to possess the land in derogation to the interest of the plaintiff and other co-sharers must also be held to have been negatived by the learned Courts below. In that view of the matter there cannot be any doubt whatesoever that the plaintiff would be entitled to recover possession in respect of the entire property.

20. The decision cited by the learned counsel for the appellant are distinguishable on facts apart from the change in the statutory law as indicated hereinbefore.

21. In Joy Gopal Singha v. Probodh Chandra Bhattacharjee, reported in AIR 1935 Cal 646 : 40 Cal WN 81, a Division Bench of the Calcutta High Court was considering a question as to whether the plaintiff therein was entitled to recover possession when he could prove his title only to the extent of 4 annas share. The court held that he did not have such right.

22. The decision of the Court in Krishna Sardar… v. Sindhu Bala Dasi…., reported in (1970) 74 Cal. WN 622 : (AIR 1970 Cal. 444) upon which reliance has been placed by the learned counsel appearing on behalf of the appellant following Naresh Chandra v. Haydar Sheikh reported in (1929) 49 Cal. LJ 83 : (AIR 1929 Cal 28) and Joy Gopal Sinha v. Probodha Chandra Bhattacharjee reported in AIR 1935 Cal. 646 : 40 Cal. WN 81 is distinguishable as therein a question arose as regard doctrine of part per formance as envisaged under S. 53A of the Transfer of Property Act. In that case although the co-sharer of property was made pro forma defendant but he died during the pendency of the appeal and the second appeal abated so far as he is concerned. It was in that situation, the Division Bench of this Court had followed the said decision. Such is not the position here.

23. In Harhar Bakshi Singh v. Mohammad Usamn Khan, reported in (1925) 90 IC 804, the Judicial Commissioner of Oudh Court had held that one co-sharer can sue a trespasser in ejectment on behalf of himself and his other co-sharer.

24. The same view has been taken in Naresh Chandra Basu v. Haydar Shekh Khan, reported in (1929) 49 Cal. LJ 83 : (AIR 1929 Cal 28) wherein it has been held that a tenant in common is entitled to recover possession as against a trespasser but he cannot recover possession of the whole from a Trespasser in a suit for ejectment.

25. In Jarman Gomaz v. Ram Kumar Kaibarta, reported (1933) 58 Cal. LJ 133 (AIR 1934 Cal. 127) it has categorically been held that a co-sharer landlord who had made the other co-sharer landlords pro forma defendants, was competent to maintain a suit for ejectment and he was entitled to get a decree for recovery of possession to the extent of his share jointly with the pro forma defendant in the suit.

26. In Sheotahal Dube v. Lal Narain Prasad Chand reported in AIR 1930 All. 422, Sen J. had held:—

“Indeed, it was unnecessary to go into these questions because the plaintiff was entitled to a decree for possession of the entire property claimed by ouster of the defendant who was a rank trespasser for the obvious reason that the plaintiff was a co-sharer with his brother Raj Bhadur Chand and his cousing Bir Bhadur Chand. Where property is held in coparcenary or in co-ownership, it is open to any one of the co-sharers to maintain a suit for possession of the entire property against a trespasser. The reason for the rule is that in the absence of a partition, the right of each co-owner extends to the whole property jointly with the other co-owners and that the attempt to reclaim the property is for the obvious advantage of all the co-sharers.”

27. Yet again, in Pal Singh v. Sunder Singh (dead) by LRs. reported in AIR 1989 SC 758, the Apex Court reiterated that when the other co-owner did not object to the eviction of a tenant in a suit instituted by one co-owner, such suit can be decreed. If co-owner can file a suit for eviction as against a tenant,, there is no reason why such a suit shall not be maintainable at the instance of the co-owner against a trespassers. This aspect of the matter, albeit in a different context, has also been taken into consideration by a Division Bench of this Court in Subhas Choudhury v. Kantilal Paul, reported in I.L.R (1998) 2 Calcutta 128.

28. The law on this question is no longer res integra, in view of the decisions of the Supreme Court of India. The Apex Court in Sri Ram Pasricha v. Jagannath, reported in (1976) 4 SCC 184 : (AIR 1976 SC 2335) held that a co-owner has a legal right to possess every inch of land and in that sense he is the owner of the property.

29. The aforementioned decision of the Apex Court has alsobeen followed by the Supreme Court in Kochkunju Nair v. Koshy Alexander, reported in (1999) 3 SCC 482 : (AIR 1999 SC 2272) wherein the law has been laid down in the following terms (Paras 9 & 10):—

“Ownership imports three essential rights, namely right to possession, right to enjoy and right to dispose of if an owner is wrongly deprived of possession of his property, he has a right to be put in possession thereof. All the three essentials are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory, interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others (vide Mitra's Co-ownership and Partition 7th Edn.)

A three-Judge Bench of this Court has held in Shri Ram Pasricha v. Jagannath, (1976) 4 SCC 184 : (AIR 1976 SC 2335) that a co-owner owns every part of the composite property along with others. The following statement of law has been made by their Lordships:

“Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will change only when partition takes place.”

30. Keeping in view the aforementioned dicta of the Apex Court in must be held that the decisions of this Court which have taken a contrary view stand overruled.

31. Another aspect of the matter cannot also be lost sight of i.e as regard the effect of such a decree. A co-owner cannot claim a specific demarcated area unless partition takes place amongst themselves. When delivery of possession is sought to be given in respect of the share of the plaintiff alone, the executing court would not be able to demarcate the area in respect whereof such delivery of possession is to be made. Furthermore, the trespasser in such a case, can contrary to the principles of joint ownership and joint possession amongst the co-owners claim adverse possession against the other co-owners.

32. The reason behind impleading all the co-owner is that a decree may not be passed in favour of one co-owner without the consent of the other owner and/or in derogation of any interest which other co-owner might have created in favour of the third party. But where all the co-owners are parties to the suit either in the category of the plaintiff or pro forma defendant and no relief is claimed against them the court's hands are not fettered in granting such a decree keeping in view the provisions of Order 7 Rule 7 of the Code of Civil Procedure in view of the well settled principles as regard the right of one co-owner vis-a-vis the others.

33. For the reasons aforementioned we are of the opinion that the judgement and decree passed by the Ld. Court below is unassailable. This appeal being devoid of any merit is dismissed. However, in the facts and circumstances of this case there will be no order as to costs.

S.N Bhattacharjee, J.:— 34. I agree.

Appeal dismissed.