Syed Ali v. Najab Ali

The question raised in this case is one between two lessees claiming under two co-sharers in a certain joint-undivided property. The Plaintiff's lessor owns 15 anuas odd gundas share in the mehal, while the Defendant's lessor is entitled to a 12 gundas share thereof. The Defendant obtained a lease of these lands in the year 1300, B.S, at a time when the lands were waste; and it would appear, upon the judgment of the Court of Appeal below, that he reclaimed these lands and made them fit for cultivation. The Plaintiff, however, claimed under two leases granted by his lessor in the years 1305 and 1308; and his case was that under these two leases, he was in possession of the lands in question until he was recently dispossessed by the Defendant. That case has been found to be untrue in the judgment of the lower Appellate Court; and it has been held that, in the ejmali mehal to which the two lessors are entitled, there are certain chaks of waste land held jointly by the share holders; that the Plaintiff's lessor, the Raja, holds some of these lands in his exclusive possession while the other lands are held in the exclusive possession of the other co-sharer or co-sharers, and further that the Defendant took settlement from his lessor and has, been in bonâ fide possession thereof for the last 8 or 9 years. In these circumstances, the Court of Appeal below has dismissed the Plaintiff's suit for recovery of ejmali possession in respect of 15 annas odd gundas share of the land in question. The Subordinate Judge, in support of his view, has referred to certain cases, one of them being the case of Modan Mohan Saha v. Rajah Ali, where, in circumstances somewhat similar to those now before us, it was held that the Plaintiff was not entitled to obtain khas possession of the land jointly with the Defendant is possession. And it was thrown out that the proper remedy for the Plaintiff was to bring a suit for partition, where the rights of all the parties could be adjusted upon a proper basis. We think the Subordinate Judge has taken a right view of the case, and that in the circumstances transpiring, it would be inequitable to allow the Plaintiff a decree for ejmali possession such as he has asked for. It will be observed that the Plaintiff's lessor leased out to him not a fractional share of the land but the lands in their entirety upon the assumption that he was entitled to lease out the whole. The Defendant's lessor did the same thing, and it would seem that the conduct of the parties was but consistent with the course of dealings that they had in the ejmali estate, for as we have already mentioned, some of the lands were in joint possession of all the maliks while others were in their respective separate possession; and, if the Defendant, under the lease bonâ fide obtained from one of the co-sharers, has reclaimed the lands and improved them in the way that he has done, it would be inequitable to allow the Plaintiff the relief that he has asked for. The proper remedy in such a case would be a suit for partition. Upon these grounds, we dismiss the appeal with costs.

N.G

Appeal dismissed.