Bheemanagowda vs Syed Murtuzakadri

Bharuka, J

The substantial Question of Law as formulated at the time of admission is to the following effect:-

"1) Whether the principle laid down by the Privy Council in AIR 1948 134 (Privy Council) will apply to the case on hand or the Decision in KENCHAPPA v. SYED DAWOOD [1963(2) Mys. LJ. 31]."

The suit is one for declaration of title and recovery of possession from the defendants. Both the Courts below have found the plaintiff to be one of the co-owners and has granted the decree for recovery of possession. The Decision of the Privy Council in the case of AIR 1948 134 (Privy Council) has no bearing on the facts of the present case, since this Decision lays down the law relating to testamentary disposition of property by Shia Mahomedan governed by Mahomedan Law. The question pertaining to maintainability of suit for recovery of possession at the instance of '' one of the co-owners is no more res integra since there are catena of Decisions of various Courts including this Court on the point sustaining the maintainability of the suit of this nature.

In the case of KENCHAPPA v. SAVED DAWOOD AND ORS.1963(2) Mys.L.J. 31, this Court has held as follows:-

"It appears to be well established that one of several co-owners can recover possession from a trespasser without impleading the other co-owners. See observations in HARENDRA v. MOHAN (1), AHMED SAHIB v. MAGNESITE SYNDICATE (2), SELAMBAVI v. SANGU PANDITHAN (3), VEERANKUTTY v. UMMA (4), SAMBHU v. PIRARI (5), and ABDUL SAMAD v. WASAL (6). The learned Advocate for the appellants has relied upon KANNA PISHRODY v. NARAYAN (7), BALAKRISHNA v. MUN. OF MAHAD (8) and BALAKRISHNA v. MORO (9). It is seen, however, that all of them are cases relating to the eviction of tenants by one of the landlords. Different considerations may arise in such cases. The principle enabling a co-owner to secure the eviction of a trespasser without impleading other co-owners appears to be that every co-owner is entitled to be in possession of each part of the property and has consequently the right to protect such possession against a trespasser."

(1) ILR.1915 Cal. 40 (2) ILR. 1939 MAD. 501. (3) AIR. 1917 MAD. 373. (4) AIR. 1956 MAD. 514 : 1956 MWN. 14. (5) Sambhu Gosain and Another Vs. Piyari Mian, (6) Abdul Samad and Others Vs. Wasal and Others, .

Similarly in the case of SHIVANGOUDA LINGANGOUDA v. GANGAWWA BASAPPA AIR 1967 Mys 143 same principle is reiterated in paragraph 5 which reads thus:

"(5) There is a catena of decisions which have taken the view that one of the co-owners can bring a suit for ejecting a trespasser from the property owned by him and others either jointly or as co-owners, the basis being that he has a right to hold every inch of the joint property until a division takes place. The judicial opinion on this point is uniform - see the decisions in AHMAD SAHIB v. MAGNESITE SYNDICATE LTD. AIR 1915 MAD 1214, TULJARAM HARKISONDAS v. HARKISAN JAGJIVAN AIR 1929 BOM. 244, Currimbhoy and Co. Ltd. Vs. L.A. Creet and Others, , Sambhu Gosain and Another Vs. Piyari Mian, , Mt. Ram Kali Vs. Pahilwan Singh and Others, and Rama Motibhai Vs. Dalwadi Tupoo Rama and Others, No decision taking a contrary view has been brought to my notice. The ratio of the decision of the Madras High Court in Adhilakshmi Ammal Vs. T. Nallasivan Pillai (died) and Others, or that of this Court in SOMALINGE GOWDA v. KALYANAMMA 1959 (Mys) 269 does not bear on the point under consideration. They dealt with cases where one co-owner sought to set aside the alienation made by other co-owner or where one co-owner sues for possession of property which is in the possession of another co-owner."

Recently the Supreme Court in the case of A. Viswanatha Pillai and others Vs. Special Tahsildar for Land Acquisition No. IV and others, has held thus:

"It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would ensure to alt the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu Law by all the coparceners. In Kanta Goel Vs. B.P. Pathak and Others, , this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha Vs. Jagannath and Others, and Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, A co-owner is as much an owner of the entire property as a sole owner of the property. It is not correct to say that a co-owner''s property was not its own. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division was effected by metes and bounds."

In view of the law as noticed above, in my opinion, this Appeal needs no interference by this Court which is accordingly dismissed. The parties to bear their own costs.