Avanthika and Another vs Sita Bai and Others

K.K. Mathew, J.—The plaintiffs are the appellants. The plaint schedule properties originally belonged to the 1st plaintiff and her mother-in-law, one Bombi in equal shares. They executed a mortgage in favor of one Damodara Shetty and put the mortgagee in possession of B schedule property directing him to appropriate the income thereof towards interest on the mortgage amount. The mortgagee thereafter purchased the half share in the property of Bombi and thereby extinguished the mortgage in respect of the half share so purchased. For the realization of the remaining half of the mortgage amount, O.S. No. 23 of 1951 was filed by the 1st defendant as the legal representative of the mortgagee, and a decree was; obtained for the sale of the other half of the property. But that decree amount was deposited by the 1st plaintiff on 28-7-1952. Now that the mortgage has been discharged, the plaintiffs filed the present suit for recovery of possession of the B schedule property. The 2nd plaintiff is the assignee of the right of the 1st plaintiff. The 1st defendant contended that she has become the owner of a half share in the property, that she was in possession of B schedule property as a co-owner and that she was not liable to be evicted without a partition of the properties by metes and bounds.

The trial court found that the possession of B schedule property by 1st defendant was only as successor to the mortgagee and that since the mortgage has been extinguished by purchase and by payment, the 1st plaintiff as co-owner, was entitled to recover possession of B schedule property. On the basis of this finding, the trial court decreed the suit. Against the decree an appeal was preferred by the defendants and the lower appellate court has come to the conclusion that the plaintiffs were not entitled to a decree for possession of the property and that their remedy was to file a suit for partition and for recovery of 1st plaintiff''s share in the property. That conclusion was based upon the fact that the 1st plaintiff had no possession of the B schedule property at the time of the suit. It is this decree which is challenged in this appeal.

I think the situation in the present case is that the 1st defendant as legal representative of Damodaran Shetty was in possession of B schedule item. Damodaran Shetty had obtained possession of B schedule item under the mortgage from two co-owners and subsequently Bombi, one of the co-owners sold to him her half share in the property thereby extinguishing the mortgage in respect of the half of the property; and the other half of the mortgage amount was paid by the 1st plaintiff. Therefore, the question for consideration is whether the first plaintiff is entitled to recover possession of the whole of the B schedule property leaving the 1st defendant to her remedy to file a suit for partition.

I think the first defendant is entitled to maintain her possession on the ground that she is a co-owner in actual possession of the properties. A co-owner in actual possession of the co-ownership property is entitled to remain in possession as against another co-owner who is out of possession. AIR 1924 144 (Privy Council) , Lachmeswar Singh v. Manowar Hossein ( ILR 19 Cal. 253). I am therefore of opinion that the lower appellate court was right in its conclusion that the plaintiffs were not entitled to recover possession of the property and that their remedy was to file a suit for partition.

In the result, the decree of the court below is confirmed and this appeal dismissed with costs.