Rai Baijnath Goenka vs Ajab Lal Jha

The parties to the suit out of which this appeal arises are co-sharers in a 21/4 annas patti in a village. The plaintiffs'' own 11/4 annas and the defendants to another suit tried along with this suit own the remaining one anna. The plaintiffs case is that in the village there are 100 bighas 10 cottas and 17 dhuls kamat lands, that the plaintiffs are in possession of 23 bighas 12 cottas of these lands, that the defendants in the present suit are in possession of 28 bighas 17 cottas and 17 dhuls of the land and that the defendants in the other suit are in possession of 43 bighas 17 cottas 14 dhuls of the land. The plaintiffs'' case is that as they are in possession of a smaller area of the kamat land than should be given to them according to their share in the patti, the defendants in the two suits should account to them for the profits which they receive from the land in their possession in excess of their shares. The defendants'' case is that the parties and their predecessors in title have been in possession of the land which they now hold for several generations, and they suggest that the existing state of affairs is due to an arrangement made many years ago. Both parties gave evidence.

The Munsif dealing with this question said, the defendants aver, and there is evidence on the record to show, that the co-sharers are in separate possession of the kamat land by a sort of partition or arrangement amongst themselves." On appeal the Subordinate Judge said, in the present case the very long enjoyment, by the co sharers including the plaintiffs and before them their predecessors, of separate parcels of land sufficiently shows that it has been done on arrangement amongst themselves". There are thus clear concurrent findings by the Courts below that the state of affairs which now obtains in this patti is the result of an arrangement arrived at many years ago. The plaintiffs rely on the decision of their Lordships of the Privy Council in the matter of (1890) L.R. 17 I.A. 110 (Privy Council) and the decision of the High Court at Calcutta in Lloyd v. Bibee Sogra 25 W.R. 313. In the latter case the Chief Justice in dealing with the rights of co-sharers as to separate possession of joint land said:

We take it to be perfectly clear that every co-owner of such property is entitled to take a part in determining how it shall be used, unless restrained by local custom or special agreement". The closing words of this passage show clearly that in the opinion of the learned Chief Justice it was important to ascertain in a case of this kind, whether the separate possession of the parties was the result of a special agreement. Similarly, in the judgment of their Lordships of the Privy Council there are passages which show clearly that the right of separate sharers to the possession of joint lands may be modified by agreement. It appears to us that there is nothing in either of these cases which in any way supports the plaintiffs'' contention in the present case. On the findings of the Courts below we must hold that the plaintiffs are not entitled to disturb the existing arrangement.

The appeal is dismissed with costs.