AI Structured Summary
Not yet generated for this judgment
Judgment
Spencer, J.—It is argued that this suit should have been dismissed on the technical ground that two of the agraharamdars, who are joint
owners, were not parties and that the plaintiffs'' pleader declined to add them as parties. Ahmad Sahib Shutari v. Magnesite Syndicate, Ltd.
[1915] 39 Mad. 501, establishes the principle that one or more co-owners can maintain an action for ejectment of a trespasser. This case quoted
the opinion of Best, J., in Gopalasami v. Periasami, Tevar 6 M.L.J. 27., who held, dissenting from Shepherd, J., who sat with him, that a Hindu
coparcener could sue alone to recover joint family property without making the other coparceners parties to the suit.
The learned Judge was in favour of remanding the suit for fresh disposal after joining the plaintiffs as defendants, observing that the trespasser-
defendants could insist on that procedure in order to protect themselves from a multiplicity of suits. That was a decision under the Civil P.O. of
1882 before Section 31 was amended as regards non-joinder of parties by Order 1, Rule 9.
I do not think that the Bench which decided Shutari v. The Magnesite Syndicate, Ltd. [1915] 39 Mad. 501 intended to import all Best, J.s
observations with their exposition of the law as it stands under the Code of 1908.
Mohanevelu Mudaliar v. Annamalai Mudaliar AIR 1923 Mad. 337 was a case of executors, who like trustees, must act together.
An attempt has been made to distinguish Ahmad Sahib v. Magnesite Syndicate, Ltd. [1915] 39 Mad. 501 on the ground that the present is not
a case of trespass, the Defendants 2 to 6 being Agraharamdars like the plaintiffs.
But reference to para. 3 of the written statement of Defendants 1 to 6 shows clearly that Defendant 2 stood upon an exclusive title by gift to the
suit property and that 1st defendant''s title was derived from the 2nd defendant.
I think that this certainly amounted to a denial of the Agraharamdar''s right of joint ownership and an encroachment on the property of these joint
owners in the assertion of a separate adverse title and that such acts on the part of Defendants 1 to 6 gave rise to a cause of action to recover joint
possession from the alienee (1st defendant).
The decrees of the Courts below are right and the second appeal is dismissed with costs of contesting respondents (1 set).