CSA/465/2005 of MOHAMMED RIYAZ Vs ABDUL GAFFAR on 20 December 2005

JUDGMENT

Mohammed Riyaz

vs. Abdul Gaffar.

S.B.CIVIL SECOND APPEAL NO.465/2005UNDER SECTION 100 CPC AGAINST THEJUDGMENT AND DECREE DATED 18.11.2005PASSED BY SHRI RAJKUMAR BHAGAT,ADDITIONAL DISTRICT JUDGE NO.1,JODHPUR IN APPEAL DECREE NO.36/2005.

DATE OF JUDGMENT

::: 20.12.2005

PRESENT

HON'BLE MR. PRAKASH TATIA, J.

Mr. RK Thanvi, for the appellant.

Mr. MD Boob, for the respondent.

REPORTABLE

BY THE COURT:

Heard learned counsel for the parties.

The appellant is aggrieved against the judgment anddecree passed by the trial court dated 16.8.2005 anddismissal of his appeal by the appellate court videjudgment and decree dated 18.11.2005.

Brieffactsofthecasearethattheplaintiff/respondentfiledasuitagainstthedefendant/appellant with clear allegation that theplaintiff and defendant both are co-owners of the propertyin dispute but the defendant after obtaining permission ofthe plaintiff, entered into one room, one kitchen and openchowk which were in possession of the plaintiff. Thedefendant/appellant was in need of said accommodation forthe purpose of marriage of his son. The plaintiff permittedthe defendant to enter in these premises with clearunderstanding that the defendant will vacate the saidpremises after the marriage of his son. The defendant didnot vacate the portion which he took from the plaintiff,therefore, the plaintiff filed the suit for recovery of theabove mentioned accommodation mentioned in the plaint witha prayer for mesne profits.

The trial court after considering evidence of both theparties, held that the defendant entered into the saidportion of the house with the permission of the plaintiffand failed to deliver the possession of the said portion tothe plaintiff after the marriage of the defendant's son,therefore, the plaintiff is entitled to decree forpossession of the above portion of the house. The trialcourt decreed the suit of the plaintiff for mesne profitsat the rate of Rs.500/- per month.

Aggrieved against the judgment and decree of the trialcourt, the defendant preferred appeal which was dismissedby the first appellate court. The plaintiff also preferredcross objections against the low award of mesne profits.

The first appellate court allowed the cross objections andincreased the mesne profits from Rs.500/- to Rs.1000/- permonth. Hence, this second appeal has been preferred by theappellant/defendant.

According to the learned counsel for the appellant, thesuit of the plaintiff itself was not maintainable becauseof the fact that the plaintiff himself in his plaintadmitted that the plaintiff and defendant both are co-owners of the property and suit by one co-owner againstanother co-owner for eviction is not maintainable. Theplaintiff could have filed suit for partition if theplaintiff wanted to have possession from the defendant.Learned counsel for the appellant also tried to submit thatin fact, the plaintiff was not in exclusive possession ofthe portion for which he has filed the suit in view of thefact that the possession of one co-sharer is possession ofanother co-sharer also, therefore, even if the plaintiffwas in possession of the portion of suit property, then hewas in possession as co-owner/co-sharer. Hence, theplaintiff's possession was also on behalf of the defendantalso and the plaintiff and defendant both were inpossession of every inch of the property in dispute also.

Learned counsel for the appellant also submitted thatthe first appellate court misread the evidence of DW3 andwrongly reached to the conclusion that the disputedproperty can fetch the rent at the rate of Rs.1,000/- permonth.

I have considered the submissions of learned counselfor the appellant and perused the reasons given by the twocourts below.

Arguments

It is true that the plaintiff in his plaint clearlystated that the suit property is the ancestral property andthe plaintiff and the defendant are the co-sharers in thesuit property. It is also true that ordinarily, thepossession of one co-sharer is possession on behalf of allco-sharers. In cases, where there is dispute between twoco-sharers, one co-sharer cannot evict another co-sharer byfiling mere suit for eviction. At the same time, a co-sharer, who is in exclusive possession of some part of thejoint property in exercise of his right to live in theproperty has a right to live peacefully withoutinterruption. In a case where co-owners and particularlywhen the property is ancestral, if the descendants of theoriginal owner continued to live in the house havingpossession of some portion for their own exclusive use,they get right to live with dignity, honour and gets rightof privacy which cannot be violated by any co-owner on theground that he being co-owner has right over every inch ofthe property and, therefore, has right to violate theprivacy and peace of another co-owner by entering into hisportion of the property without permission of that co-owner. This right of the co-owner in possession does notviolate the right of other co-owner in any manner nor itaffects his title. It is a right of every person havinginherent right to live with dignity and honour. In fact, if the other co-owner, who is not in possession of particularportion of joint house, believes that he has right inother's occupation, then he can take possession byappropriate legal proceedings including filing suit forpartition for getting possession of that portion which isin occupation of other co-owner. In instance case, theplaintiff was in possession of house and the defendant tookpossession of portion of house from the plaintiff and,therefore, he was in permissive possession only and hispossession was not as of owner or co-sharer of the propertydespite the fact that the defendant is co-sharer/owner ofthe property. In this case, nature of possession was onlyrelevant.

The co-owner, who enjoyed the property peacefully andthat position continued for long, acquired right to protecthis possession of that portion of joint proeprty and getsright to live with dignity even if it may result into somerestriction over the other co-owner's right of enjoyment of“every inch of joint property”. By long acceptance of theposition, the other co-owner accepted the position toremain out from the property or portion of that property,then he has no right to say that the co-owner in possessionof particular portion of joint property has excluded himunlawfully. In a case where one of the co-owner seekspermission of another co-owner to enter into premises andtake possession, he is bound to deliver the possession tothat co-owner from whom he took possession without anyobjection.

In view of the above, the plaintiff's suit forpossession for portion which he gave to the defendant wascertainly maintainable without filing the suit forpartition otherwise, it will encourage scrupulous personswho may destroy and violate the faith of their own co-sharers and co-owners of the property. One has no right toenter into premises after permission and thereafter, to saythat his possession is not permissive possession since heis owner of the property, therefore, his possession is asof a owner.

The two courts below concurrently held that thedefendant took the portion of the building from theplaintiff which is a pure question of fact decided by thetwo courts below against the defendant/appellant and,therefore, the plaintiff has right to recover possession ofthe property. In view of the above also, the courts belowwere right in decreeing the suit of the plaintiff.

So far as the question of mesne profits is concerned,learned counsel for the respondent clearly read thestatement of D.W.3 in Court which reveals that DW3unequivocally admitted that the rent of the disputedproperty itself can come at the rate of Rs.1,000/-,therefore, if the first appellate court granted the decreeof mesne profits at the rate of Rs.1,000/-, then theappellant has no right to challenge this finding on theground that this rent could have been fetched on the datethe evidence was recorded and not prior to that.

In view of the above, I do not find any merit in theappeal. No substantial question of law is involved in thisappeal, therefore, this appeal deserves to be dismissed,hence, dismissed.

S.Phophaliya

(PRAKASH TATIA), J.