Amir Mahton and Others vs Sheopujan Missir and Another

Das, J.—These two second appeals by some of the defendants arise out of two suits for declaration of title and recovery of possession in the following circumstances. Tulsi and Panchayan were two brothers. Defendants 1 to 5 were the sons of Tulsi, and are appellants in the two appeals. Defendant 6, Mt. Batasia, was the widow of Panchayan, and Mt. Bipti (defendant 7) was the minor daughter of Panchayan. The plaintiffs-respondents--there are different plaintiffs in the two suits--claimed that Tulsi and Panchayan were separate in mess and business, and after the death of Panchayan, his widow, Mt. Batasia, came in possession of the properties left by him. She, for self and as guardian of Mt. Bipti, executed two rahan bonds in favour of the plaintiffs of the two suits--one of the documents being for a sum of Rs. 999, executed on 27th February 1939, and the other for a sum of Rs. 450, executed on 28th February 1939. Subsequent to the execution of the aforesaid mortgage bonds, there was a dispute between defendants 1 to 5 on one side and defendants 6 and 7 on the other with the result that the plaintiffs, who wanted to cultivate the lands mortgaged to them, were resisted by defendants 1 to 5. The plaintiffs, therefore, brought the two suits with regard to the lands mortgaged to them, and claimed the following reliefs:

On an adjudication of the plaintiffs'' title and want of title in defendants 1 to 5, possession over the rahan property may be caused to be delivered to the plaintiff and Rs. 100 may be awarded against defendants 1 to 3 by way of mesne profits, and orders for the recovery of future mesne profits maybe passed.

If, for any reason, possession cannot be delivered to the plaintiffs, then Rs. 999 principal and Rs. 81 on account of interest, total Rs. 1080, may be caused to be realised by the sale of the rahan property.

I have quoted the reliefs in extenso from the plaint in one of the two suits, because one of the points, raised in appeal, depends on the question as to whether the plaintiffs, respondents could prefer an appeal to the lower appellate Court after having been given one of the reliefs claimed by them. The defence of the appellants in the two suits brought against them raised several points with which we are not at present concerned. The main defence was that Panchayan was all along joint with Tulsi, and with defendants 1 to 5 after Tulsi''s death. Panchayan continued to be the karta of the family, and after his death, defendants 1 to 5 got the entire properties by the rule of survivorship. The appellants also alleged that Mt. Batasia was not the lawfully wedded wife of Panchayan.

The trial Court found in favour of the appellants on the question as to whether Panchayan and Tulsi were joint or separate. He found that the plaintiffs had failed to prove that the two brothers were separate. On this finding, he held that Mt. Batasia, widow of Panchayan, had no interest of her own in the property of Panchayan, which she could transfer to the plaintiffs-respondents. The trial Court, however, gave a simple money decree in favour of the plaintiffs against Mt. Batasia (defendant 6). The plaintiffs appealed, and the Court of appeal below found in favour of the plaintiffs on the question of separation of the two brothers, Tulsi and Panchayan. The learned Additional Subordinate Judge, who heard the two appeals, came to the finding that even though there was no partition by metes and bounds Tulsi and Panchayan lived separate, and there was a complete cesser of commensality between them. On this finding he gave the plaintiffs a decree for recovery of possession of the lands covered by the rahan deeds, jointly with defendants 1 to 5. It is against this decree in the two suits that the two appeals have been preferred by defendants 1 to 5.

Learned Counsel for the appellants has raised three main contentions. Firstly, he has contended that the Court of appeal below has drawn a wrong inference of separation of the two brothers from the evidence in the record. The Court of appeal below has relied on the entries in the Chaukidari Assessment Registers of the years 1926 and 1927 (Exts. 8 series). These entries show that Tulsi and Panchayan were separately assessed to chaukidari tax. Learned Counsel for the appellants has contended before us that these entries cannot be correct, inasmuch as Tulsi was dead before 1926. The mere fact that the name of Tulsi appears in the Chaukidari Assessment Registers, even after his death, does not necessarily prove that the Assessment Registers were not genuine. As a matter of fact, both the Courts below have come to the finding that these Assessment Registers were genuine, and bore the seal of the Subdivisional Magistrate and the signatures of the punchas.

It is also contended that the entries in these Assessment Registers do not by themselves give rise to the inference that Tulsi and Panchayan were separate. The Court of appeal below has not, however, based its finding merely on the entries on these Assessment Registers. It has taken into consideration other evidence, such as, some of the rent receipts, which show payment of rent by Mt. Batasia, canal parchas showing payment of water rate by Mt. Batasia and also the very significant fact that on 5th October 1936 Mt. Batasia had executed a mortgage bond in favour of one Chandrika Mahton (Ex. 2). This last document shows that before any dispute broke out between the parties, Mt. Batasia had been dealing with the property separately, as though she had inherited the property after her husband''s death.

The Court of appeal below has also considered the oral evidence in the case, and has taken into consideration the circumstance in favour of the appellants to the effect that the lands which originally belonged to the family had not been subdivided on the spot. On a consideration of the entire evidence in the record, the Court of appeal below has come to the finding that though there was no partition by metes and bounds, the evidence and circumstances of the case satisfactorily establish the fact that Tulsi and Panchayan were separate, and there was a complete cesser of commensality between them they were in separate possession as tenants-in-common. This finding arrived at by the Court of appeal below is essentially a finding of fact, and cannot be re-opened in second appeal. I am unable to accede to the contention raised on behalf of the appellants that this finding is vitiated by any error of law.

Secondly, it has been contended on behalf of the appellants that the plaintiffs-respondents were given a decree by the trial Court which allowed them one of the reliefs claimed by them; having got one of the alternative reliefs which they had claimed, it was not open to them to come up in appeal. Reliance has been placed on an unreported decision of this Court in decided on Mt. Panchani v. Mt. Rikhia Second Appeal No. 191 of 1940, decided by Agarwala J. That was a case in which the appellant sued for recovery of possession of a house which was mortgaged to him by defendant 3. In the alternative, the plaintiff of the suit asked for recovery of the mortgage-debt of Rs. 200 against the mortgagor, defendant 8. There were two other defendants, defendants 1 and 2, who were in possession of the house and against whom a suit brought by defendant 3, had been dismissed prior to the institution of the suit, which gave rise to the appeal. The plaintiff was given a decree against defendant 3, and applying the principle laid down in Reajuddin Patwari and Others Vs. Syed Abdul Jobbar, , it was held that the plaintiff could not succeed inasmuch as he had in his plaint expressed himself to be satisfied either with a decree for recovery of possession against defendants 1 and 2, or a decree for the sum advanced against defendant 3.

The case in Reajuddin Patwari and Others Vs. Syed Abdul Jobbar, was also of a similar nature. In that case, a suit was brought by the plaintiff-respondent for ejectment of defendants 1 and 2 from certain lands. The plaintiff, in the alternative made a prayer for assess. ment of a fair and equitable rent u/s 157, Ben. Ten. Act. The Court of first instance declared the plaintiff''s ijara right to the eight annas share of the village and declared that the plaintiff would get rent of the lands in respect of his share, holding that the defendants were tenants with regard to these lands. There were appeals by both parties against the decision of the trial Court. The plaintiff appealed against the order fixing a fair and equitable rent u/s 157, Ben. Ten. Act, and the defendants appealed against the decree declaring the right of the plaintiff to the property in suit. The learned Judge in the Court below dismissed both the appeals. There was a second appeal by the defendant and a cross-appeal by the plaintiff. In the cross-appeal the plaintiff claimed that he was entitled to khas possession on the ground that the defendants were trespassers. In these circumstances, it was observed as follows:

But he (the plaintiff) made an alternative claim u/s 157, Ben. Ten. Act, for assessment of a lair and equitable rent and the learned Judge in the Court below has given him relief under that section. It seems to me that he is not entitled to say that he does not want that alternative relief which has been granted to him, and that he desires to have the other relief which he claimed by way of ejectment. In effect, the plaintiff expressed that he would be satisfied with either of the, two prayers which he made in his plaint and he succeeded in getting one and, therefore, he has no real cause for complaint.

The facts, as stated above, of the aforesaid two decisions are different from the facts of the cases before us. I have already quoted in extenso at the beginning of this judgment the reliefs which the plaintiffs-respondents claimed. The plaintiff-respondents claimed for recovery of possession or in the alternative a mortgage decree by sale of the rehan property. They did not state in the plaint that they would be satisfied with a simple money decree against Mt. Batasia (defendant 6.) The trial Court gave a simple money decree against Mt. Batasia in favour of the plaintiffs-respondents.

It cannot, therefore, be said that the plaintiffs-respondents had succeeded in getting one of the two reliefs which they had claimed. In view of this distinction, it is unnecessary to consider the correctness or otherwise of the two decisions referred to above. I doubt, however, if a general rule can be laid down that in all cases where an alternative relief has been granted the plaintiff has no right of appeal for getting a decree for the other relief which he had claimed in the plaint. Section 157, Ben. Ten. Act, refers to alternative reliefs in a suit for the ejectment of a trespasser; it is open to the landlord to recognise a trespasser and accept him as a tenant. If he expresses himself to be satisfied with accepting rent from a trespasser, it is obvious that he cannot seek to eject him. The decision in Reajuddin Patwari and Others Vs. Syed Abdul Jobbar, has reference to the facts of that case and the particular terms of Section 157, Ben. Ten. Act. I am unable to apply the principle of that case by analogy to the facts of the present case, which as I have shown above, are different.

Thirdly, it has been contended that the plaintiffs-respondents were not entitled to a decree for joint possession inasmuch as they had asked for possession of specific plots and no cosharer is entitled to say that he has an exclusive right to any particular portion of the joint property and to confer an exclusive right on a third party by alienation without the consent of all the co-owners. Reliance has been placed on the case in Jamna Vs. Jhalli, . The Allahabad case, however, was one in which the plaintiff claimed exclusive possession of certain plots,, though he had purchased by means of a sale-deed the three-fourths share in the khata in question. It was pointed out in that case that his vendors were cosharers to the extent of three-fourths in the khata which was admittedly joint zamindari property; it was then held that without the consent of the-remaining co-owner they could not transfer an exclusive title to particular portions of the property as yet undivided. It was further pointed out that vendors did not effect to transfer their undivided share or a portion of it, and what they did was to earmark certain plots and transfer them as if they were the exclusive owners of them. The rehan bonds, on the basis of which the plaintiff-respondents sued in the two suits in question, have not been printed. The learned Subordinate Judge has, however, made it perfectly clear that no exclusive possession; can be given to the plaintiffs-respondents of any particular portion of the property belonging to the cosharera. The learned Subordinate Judge has expressed himself as follows:

As I have already pointed out, in the absence of proof of partition by metes and bounds, the; plaintiffs are not entitled to recovery of possession by ejecting defendants 1 to 6 from the suit lands. So far as these suits are concerned, the plaintiffs would be entitled to decree for joint possession, with defendants 1 to 5. It may be open to the plaintiffs or to defendant 6 to seek partition by a. properly constituted suit hereafter.

I do not see any particular objection to the form of the decree passed by the Court of appeal below. Obviously the plaintiffs-respondents will not get exclusive possession of any particular part of the property in dispute. Their right as rehandar has been; declared and they have been given joint possession with the other cosharers. If any of the parties want exclusive possession of a particular part, a properly constituted partition suit would be necessary, as has been observed by the learned Subordinate Judge.

The result, therefore, is that the contentions raised on behalf of the appellants fail and the appeals are dismissed with costs in favour of the plaintiff-respondents. There will be one hearing fee for both appeals.

Manohar Lall, J.

I agree. On the facts found it is unnecessary to consider the correctness of the view expressed in some cases that the plaintiff cannot in appeal be granted the second alternative relief claimed by him.