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Kameswari Dasya v. Sishuram Deka And Another
Factual and Procedural Background
This is an appeal under clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for recovery of possession of land upon declaration of title. The Subordinate Judge found that the husband of the plaintiff and the second defendant were joint owners of about 11 cottahs; by mutual arrangement the husband occupied the eastern half and the second defendant the western half. The first defendant took a conveyance of two cottahs from the second defendant and, on that basis, ousted the plaintiff from those two cottahs now in suit. The Court of first instance denied relief on the ground that the plaintiff had failed to prove a final partition. On appeal the Subordinate Judge held the first defendant in the position of his vendor and not competent to disturb the plaintiff's possession, but awarded only joint (not exclusive) possession. On second appeal Mr. Justice Newbould accepted the first defendant's contention that the suit should be dismissed and the plaintiff left to seek partition, referring to certain authorities. This Court (Mookerji, J.) disagreed and allowed the appeal, set aside Mr. Justice Newbould's decree, restored the Subordinate Judge's decree with costs, and awarded the appellant the costs of both hearings in this Court.
Legal Issues Presented
- Whether a purchaser from one co-owner (the first defendant) can disturb an agreed arrangement of exclusive possession between co-owners in the absence of a final partition.
- Whether the plaintiff is entitled to recovery of possession (exclusive or joint) of the two cottahs taken by the first defendant.
- Whether the plaintiff's remedy should be limited to a suit for partition rather than a suit for possession/declaration of title.
Arguments of the Parties
First Defendant's Arguments
- The suit should be dismissed and the plaintiff left to seek her remedy by way of a suit for partition.
- Relied upon authorities (as cited by Mr. Justice Newbould) to support that the disturbance of the alleged arrangement did not warrant the relief sought.
Plaintiff's Position
- The plaintiff alleged a final partition of the entire tract (which the trial Court found she failed to prove) and sought recovery of possession on declaration of title.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jay Chunder Rukhit v. Bippro Churn Rukhit | That before a Court will order restoration of a portion of joint property dealt with by one co-sharer, the plaintiff must show he sustained injury materially affecting his position. | The Court held this authority does not support the first defendant's contention that he could oust the plaintiff; the decision does not assist the respondent in this case. |
| Watson & Co. v. Ramchund Dut | The Judicial Committee ruled that resistance by a co-sharer in occupation, to protect profitable use of land, is not a denial of the other's title and is not ground for proceedings for joint possession or damages. | The Court found this principle does not assist the first defendant, who took the law into his own hands and disturbed the agreed arrangement. |
| Durga Charan v. Khundkar | Elementary principle that where joint owners have agreed to a mode of enjoyment of joint property, one cannot disturb that arrangement without consent of the others. | Applied as a supporting principle for refusing to permit the purchaser (first defendant) to disturb the arrangement between co-owners. |
| Madan Mohun v. Raja Ali | Authority supporting that courts will not interfere with arrangements of exclusive possession among co-owners absent partition. | Relied upon to support the view that the Court should not disturb the tacit/expression arrangement of possession. |
| Syed Ali & Others…Plaintiffs, v. Najab Ali & Ors.…Defendants, | Decision supporting the principle that tacit or express arrangement of exclusive possession among co-owners will not be interfered with by the Court in the absence of partition. | Used to support the proposition that the Court should respect the co-owners' arrangement and not permit the purchaser to disturb it. |
| Behary v. Kedar Nath | Supports the view that courts will not interfere with arrangements of exclusive occupation among co-owners absent partition. | Applied as part of the body of authorities supporting the Court's conclusion for the appellant. |
| Jagar Nath Singh v. Jai Nath | Supports the position that an arrangement of exclusive enjoyment by co-owners is not to be upset by another co-owner or his vendee during the continuance of the joint ownership. | Relied upon to uphold the Subordinate Judge's conclusion and to set aside Mr. Justice Newbould's contrary view. |
| Jagannath v. Bada Prasad | Supports the non-interference principle regarding tacit or express arrangements of exclusive possession among co-owners. | Counted among authorities that sustain the Court's ruling for the appellant. |
| Joy Chundar Rukhit v. Bippro Churn Rukhit | Rule that a plaintiff must show material injury before a Court will order restoration of a portion of joint property dealt with without consent. | Noted by the Court as not assisting the respondent's case; the respondent's reliance on it was misplaced. |
Court's Reasoning and Analysis
The Court began from the elementary principle (citing Durga Charan v. Khundkar) that where joint owners agree on a mode of enjoyment of joint property, a co-owner cannot disturb that arrangement without consent. The Court distinguished the abstract legal right of each co-owner to the whole estate from the practical manner of enjoyment agreed upon by the co-owners: the latter may result in exclusive possession of different parcels by different co-owners without amounting to a legal partition. The Court reasoned that where such tacit or express arrangements of exclusive occupation exist, the Court will not interfere at the instance of one co-owner during the continuance of joint ownership and will only address matters on partition to effect equitable division.
The Court reviewed the authorities relied upon by Mr. Justice Newbould (including Jay/Joy Chundar Rukhit and Watson & Co. v. Ramchund Dut) and held they do not support the respondent's contention. The Rukhit decisions require proof of material injury before ordering restoration and Watson & Co. establishes that resistance by an occupying co-sharer to protect use is not denial of title—neither justified the first defendant's act of ousting the plaintiff. The Court found that the first defendant took the law into his own hands and disturbed the arrangement agreed between his vendor and the plaintiff's husband, and therefore the first defendant could not justify the disturbance.
Holding and Implications
APPEAL ALLOWED.
The decree of Mr. Justice Newbould is set aside and the decree of the Subordinate Judge is restored with costs. The appellant is awarded the costs of both hearings in this Court. The direct effect is the restoration of the Subordinate Judge's relief in favour of the plaintiff; the opinion does not announce any new broader precedent beyond applying existing principles respecting co-owners' arrangements of enjoyment.
Mookerji, J.:— This is an appeal under clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for recovery of possession of land upon declaration of title.
2. The facts as found by the Subordinate Judge may be briefly recited.
3. The husband of the plaintiff and the second defendant were joint owners of an area of land covering 11 cottahs and odd. By mutual arrangement, the husband of the plaintiff occupied the eastern half of the land, and the; second defendant the western half. While they were thus in possession, the first defendant took a conveyance of two cottahs of land from the second defendant. On the basis of title thus acquired the first defendant ousted the plaintiff from the two cottahs now in suit. The Court of first instance held that as the plaintiff had failed to prove, as alleged by her, that there had been a final partition of the entire tract, she was entitled to no relief. Upon appeal, the Subordinate Judge held that the first defendant was in the same position as his vendor, the second defendant, and was not competent to disturb the possession of the plaintiff. The Subordinate Judge, however, did not give full effect to this conclusion, as no gave the plaintiff a decree, not for exclusive but only for joint possession on second appeal Co. this Court, the first defendant urged that the suit should be dismissed and the plaintiff left to seek her remedy by way of a suit for partition Mr. Justice New-bould has allowed this contention to prevail and has referred to the cases of Jay Chunder Rukhit v. Bippro Churn Rukhit(1), and Watson & Co. v. Ramchund Dut(2). We are of opinion that the view taken by Mr. Justice Newbould cannot be supported on principle and is not sustained by the authorities mentioned.
4. It is an elementary principle that where joint owners have agreed to a mode of enjoyment of joint property, it is not open to one of them to disturb that arrangement without the consent of the others: Durga Charan v. Khundkar(3). This is not inconsistent with the fundamental principle that in law each joint owner of an estate is regarded as having a joint proprietary right in the whole estate. That however is merely a right and must not be confounded with the manner of enjoying that right; it operates in strict law to prevent a co-owner from setting up a claim to any parcel as his exclusive property during the continuance of the joint ownership. But where co-owners, by arrangement, either tacit or express, take up exclusive possession and enjoyment of different parcels of the joint property, without such definition or severance of interest as would amount to partition, the Court will not interfere with the arrangement at the instance of one co-owner during the tenure in common and will do so only on partition so far as may be necessary to make an equitable division of the property. This view is supported by the decisions in Madan Mohun v. Raja Ali(4); Syed Ali & Others…Plaintiffs, v. Najab Ali & Ors.…Defendants,(5); Behary v. Kedar Nath(6); Jagar Nath Singh v. Jai Nath(7) Jagannath v. Bada Prasad(8). The two decisions mentioned in the judgment now under appeal do not support the contention of the respondent. In the case of Joy Chundar Rukhit v. Bippro Churn Rukhit, it was ruled that before a Court will, in the case of Co. sharers, make an order directing that a portion of the joint property alleged to have been dealt with by one of the Co. sharers without the consent of the other should be restored to its former condition (as, for instance, where a tank has been excavated), a plaintiff must show that he has sustained, by the act he complained of, some injury which materially affects his position. In the case of Watson & Co. v. Ramchund Dutt, the Judicial Committee ruled that where land was held by two persons in common, one of whom was in actual occupation of a part, cultivating it as if it had been his separate property, if the other attempted to enter upon the same land, is order to carry on operations thereon inconsistent with the work already being carried on by the former, who resisted and prevented his attempted entry, the resistance must be deemed to have been made by the co-sharer in occupation simply with the object of protecting himself in the profitable use of the land, in good husbandry and not in denial of the other's title, and that consequently such resistance was no ground for proceedings on the part of the other, to obtain a decree for joint possession or for damages. These propositions do not assist the contention of the first defendant. It was he who took the law into his own hands and disturbed the arrangement which had been agreed to by his vendor and by the husband of the plaintiff.
5. We are consequently of opinion that this appeal must be allowed, the decree of Mr. Justice Newbould set aside and that of the Subordinate Judge restored with costs. The appellant is entitled to the costs of both hearings in this Court.
6. Appeal allowed.
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