Rohni Singh and Others vs J. Hodding, Administrator of the estate of the late L. Cosserat and Another

O''Kinealy and Ameer Ali, JJ.—This is an appeal from an order of the Subordinate Judge of Chupra, dated the 25th of June 1892, whereby he directed that certain parties should get restitution and be entitled to be put exactly in the same position they were in before the suit was brought. It appears that there are two classes of owners in this village--one of them, Mr. Hodding, has a five-pies odd share, and Rohni Singh and others are the owners of the 15 annas odd pie share. The owners of the 15 annas share brought a suit for partition of certain land against Hodding. That suit was decreed in the first Court, but on appeal, the suit was dismissed on the ground that no such suit would lie. After the dismissal of the suit Hodding applied in the lower Court to be put in the same position as he was in before the suit was brought. In the meantime the owners of the 15 annas odd had taken out execution of the decree for partition and settled tenants upon it. Therefore, when the question of restitution arose, it became necessary to decide what was the position of Hodding in regard to these tenants. The learned Advocate-General has argued that u/s 583 of the Code of Civil Procedure, restitution cannot be granted, by motion, unless there is an order for restitution in the decree. So far as we are aware, that is a proposition contrary to the settled practice of this Court and of the Bombay High Court, as well as of their Lordships of the Privy Council, Hodding has no doubt aright to be put exactly in the same position in which he was before, and neither more nor less; and therefore he is entitled to joint possession with the other owners; and no title taken pendente lite can prevent him from removing a tenant if he was not found on the land before the partition; or, in the words of Section 263, he is entitled to have possession delivered over to him, or to such person as he appoints to receive delivery on his behalf, and, if need be, by removing any person bound by the decree, who refuses to vacate the property.

Now, we notice that in the Court below Hodding seems to have been under the impression that he has a right to cut the crops. We think no Court could accede to that.

Then, it is argued by the learned Advocate-General that it would be useless to pass the order asked for, because, although even if we remove any person who may have taken title to their land since the restitution of the suit, their 15 annas zemindar will be entitled immediately afterwards to bring them in. It is argued on the other side that that cannot be so. The rights of owners of land held jointly has been practically settled by the Privy Council in the case of Watson & Co. v. Ram Chanel Dutt ILR Cal. 10 : L.R. 17 IndAp 110, and the subsequent case of Lachmeswar Singh v. Manowar Hossein ILR Cal. 253 : L.R. 19 IndAp 48, and whatever rights they possess according to law, of course they can claim. All we wish to say at present is that Hodding is entitled to get into joint possession with the 15 annas zemindar, and to remove such tenants as may refuse to vacate. We make no order as to costs.