1. The plaintiffs were in possession of the whole of the field in dispute. Their possession of a two-thirds share was on their own account and of the remaining one third was on behalf of one Saku Bai, a relative of both parties. They were dispossessed by the first defendant and within six months of that dispossession filed a suit under Section 9 of the Specific Relief Act claiming to be restored to possession of the whole field. Saku Bai refused to join them in bringing the suit and they impleaded her as a defendant. In that capacity she pleaded that the field had been divided between the parties about the time of the alleged dispossession, half being given to the first defendant, one third to the two plaintiffs jointly and one-sixth to her, and that since the partition each share was in the separate possession of the party to whom it had been allotted. She declared that the suit was entirely false and refused to have anything to do with it. The first defendant took the same pleas of fact which however were found to be untrue. The learned Munsif held that the plaintiffs and Saku Bai were in exclusive possession of the field within six months of the institution of the suit and passed a decree ordering that the first defendant was to put the plaintiffs and Saku Bai in joint possession of it. The first defendant has applied for revision of this decree.
2. A preliminary objection was taken on behalf of the non applicants that this Court ought to refuse to grant revision because another remedy by regular suit is open to the applicant. This objection is based on the analogy of Section 115 of the CPC which allows revision only in favour of an aggrieved party who has no remedy by way of appeal. I agree in the proposition that revision should not ordinarily be granted even in a case in which no appeal lies, if some other remedy is provided which can be called reasonably efficacious in respect of the circumstances of the particular case. But here if the decree is wrong, the slower remedy by regular suit will still leave the applicant suffering injustice and undue hardship and this is sufficient to call for the exercise of the revisional powers of this Court in his favour.
3. It is perfectly clear the plaintiffs are not entitled to possession of Saku Bai's share, and that she cannot be forced to take possession of that share against her will.
4. It appears that they have been put in possession of the whole field, a third share being held by them on behalf of Saku Bai, at least nominally. It is not easy to see how this could be done unless Saku Bai joined in the application for execution, though compelling her to take possession through the plaintiffs is perhaps no more difficult to understand than forcing a decree for possession on her. What has in effect been done is to remove the first defendant from possession of her share, which he held with her consent, and to put in the plaintiffs to hold her share on her behalf, not only without her consent but against her expressed wishes. The position is impossible, and the plaintiffs must at least restore Saku Bai's third share to the position in which it was before the execution of their decree which is that of the first defendant. If Saku Bai is content to leave it here, the plaintiffs have certainly no right to prevent her doing so.
5. It is further urged on behalf of the first defendant that no decree at all should have been passed and the suit should have been dismissed for the reason that Section 9 of the Specific Relief Act contemplates only a suit for exclusive possession by the plaintiffs not one for joint possession by them with one or more of the defendants or some third party. The plaint does in fact pray for exclusive possession of the whole field to be given to the plaintiffs. This is of course incompatible with the admission in the same document that Saku Bai was in joint possession through and with them of a third share and that she refused to join in the suit and the lower Court would perhaps have been justified in dismissing the suit on the ground that the plaintiffs had failed to show that they were entitled to the relief they claimed Such a decree however, would certainly not be proper at this stage, and the suit must be regarded as one for joint possession with both or either of the defendants of a two-thirds share in the field.
6. In Hari Narain Das v. Elamjan Bibi (1914) 19 C.W.N 120 , 23 I.C 618 , 19 C.L.J 117 the three plaintiffs sued for joint possession of land, but in the course of the suit the third plaintiff who according to the plaint was entitled to a half share in the property withdrew from the suit, leaving the other two claiming joint possession with the defendants of the remaining half share. In discussing the question whether the possession of which Section 9 of the Specific Relief Act speaks includes joint possession. Stephen and Chatterjee, JJ., said:
“We have to decide it without the assistance of any authority. Looking at the words of the section as they stand we are of opinion that they refer to exclusive possession and the Curt had no jurisdiction to grant joint possession under the section. We have treated the case as being one where a party seeks possession of his share only of property from which he himself and his co-sharers have been dispossessed and it is incompetent for the Court to give possession of the whole of the property in such a case.”
Mr. Justice Chatterjee was also one of the two Judges who decided the case of Atiman Bibi v. Sheikh Raisat (1915) 19 C.W.N 1117 , 28 I.C 570 just two years later. That has been cited as propounding the contrary view to that taken in the case previously mentioned. The earlier case is, however mentioned and distinguished in the later on the ground that in the former dispossession was of the whole and possession was claimed in respect of a part only but in the latter dispossession was of a part only and possession was claimed of that past as it was a suit by one co-owner against all the others, who had ousted him from his share. These two cases are the only judicial authority I have been able to find on the point.
7. The facts in Hari Narain Das v. Elamjan Bibi (1914) 19 C.W.N 120 , 23 I.C 618 , 19 C.L.J 117 are exactly similar to those of the present case except that the co-owner with the plaintiffs in that case was not a party to the suit at all, and the co-owner with them here is a co-defendant with the trespasser. I find myself, however with the greatest respect unable to follow this ruling. Reading the words of Section 9 of the Specific Relief Act with anxious care, I have failed to find anything in them that would suggest that they are not meant to provide for one co-owner wrongfully ousted from possession by a stranger obtaining redress unless the co-owners who have been ousted along with him joined in the suit. The others may not wish to claim possession for a variety of reasons but that ought not to deprive the one who does of his remedy. A stranger might hold a decree against one of two co-owners for possession of his half share in certain property. If he took forcible possession of the whole property otherwise than in due course of law, it would not be worth the while of the person against whom he, held the decree to join in a suit for restoration of possession under Section 9 of the Specific Relief Act, but the interpretation put upon that section by the Calcutta High Court would deprive his co-owner of that remedy against an obvious wrong which it seems to me the section was specially designed to provide.
8. I fail also, if I may say so with due respect, to follow the distinction drawn between the two cases. In effect it seems to me to come to this, that if one of several co-owners is ousted from possession of his share of property by a person who thereby gets the whole property into his possession he can only claim to be restored to possession of his own share under S. 9 if the other person has a good title to the remainder; that section will not help him if the other person is a trespasser on the remainder as well as on his share. It navy well be said also that with Saku Bai as a defendant and denying the claim the case is more nearly analogous to the second of the two cases mentioned thin to the first. She can be regarded as in possession of her own one-third share through the first defendant, whom she supported and the plaintiffs claimed possession of their two thirds share against the first defendant who had ousted them but had left Saku Bai undisturbed.
9. I hold that the cases to which Section 9 of the Specific Relief Act refers include the case of a co-owner of property seeking to be restored to possession jointly with a trespasser of property from which the latter has ousted his co-owners along with him, even though those other co-owners do not claim possession of their shares. In this view the decree of the lower Court must be set aside and a fresh decree must issue ordering the first defendant to put; the plaintiffs in joint possession with himself of two thirds of the field in dispute. I am of opinion that Saku Bai was not a necessary party to the suit but in any case it would have to be dismissed against her. The plaintiffs must, therefore, pay all the costs incurred by her in the lower Court, Against the first defendant they have succeeded to the extent of two-third of their claim. They will, therefore, pay one third of all the costs incurred in the lower Court other than those of Saku Bai, and the first defendant will pay the remainder. They will also pay the whole of the costs of the proceedings in this Court, in which the Pleader's fee will be Rs. 15.
10. Application allowed.