Asghar Ali vs Govind Lal

R.S. Pathak, J.—This is a defendant''s appeal arising out of a suit for ejectment, arrears of rent and damages.

The plaintiff came to court with the allegations that a shop was let out by one Masood Husain to the defendant on rent, that the plaintiff purchased the property from Masood Husain subsequently, that the plaintiff terminated the defendant''s tenancy In accordance with law and was, therefore, entitled to eject the tenant. It was also alleged that the defendant was liable to pay arrears of rent and damages.

The suit was contested Inter alia, on the ground that the notice was invalid and that the defendant had become a co-sharer in the property In dispute by subsequent purchase from one Sultan Ahmad, one of the original co-sharers.

The trial court decreed the suit for possession and for recovery of arrears of rent and damages.

The defendant preferred an appeal which was, however; dismissed by tried learned Additional Civil Judge, Moradabad.

The only ground urged before me by learned counsel for the appellant is that having acquired the status of a co-sharer in the property the defendant was not liable to be ejected. It is urged that even though the tenancy could be said to have been terminated, the defendant was entitled to continue in possession by virtue of being one of the co-sharers. In my judgment, this contention cannot be accepted. It is not disputed that Masood Husain enjoyed, the right of exclusive possession vis-a-vis the other co-sharers. The defendant was (sic) into possession as tenant by Masood Husain. Subsequently when the plaintiff acquired the right, title and interest of Masood Husain in the property, he also acquired the right of exclusive possession. He was entitled to terminate the tenancy of the defendant and to resume the exclusive possession enjoyed by him before he had let out the property to the defendant. It was not open to the co-sharers to disturb him in the exercise of that right. It was observed in AIR 1927 467 (Oudh) that where a person had been in possession of a piece of joint land for a long time without any lot or hindrance by other co-sharers, the latter had no right to eject him or disturb his possession or enjoyment otherwise than by seeking partition. These observations were followed with approval in AIR 1940 215 (Oudh) It is contended on behalf of the appellant that this principle would not apply in a case where a co-sharer came to court claiming exclusive possession when another co-sharer was already in possession. No reason has been shown why this should be so. If a co-sharer has been in the enjoyment of exclusive possession, and is actually dispossessed by another co-sharer, he is entitled to be put back into exclusive possession. This was the view taken by this Court in Kuldip Chaubey v. Jagnandan AIR 1923 All 363.

The mere fact that the defendant subsequently acquired the rights of a co-sharer in the property does not preclude the plaintiff from claiming the same right to exclusive possession as was enjoyed by his predecessor-in-title.

In this view of the matter the contention of the appellant must fail. The appeal is accordingly dismissed with costs.