P L D 1960 Dacca 359 (PLP)

6. It is contended by Mr. Dutta, the learned Advocates for the appellants, that the learned Subordinate Judge is absolutely wrong in holding that the plaintiffs are not entitled to get a declaration of title and a decree for recovery of khas possession as the plain tiffs had not perfected their title by possession for over twelve years under the Sylhet Tenancy Act and, as such, neither Kaderali nor his transferees, the plaintiffs, have acquired any title to the disputed land till the date of filing of the suit.

7. I think this contention of Mr. Dutta is of substance. The question required to be decided in this appeal is whether and how far a lease by one tenant‑in‑common to a stranger, of a portion of a joint‑estate, is valid and binding on the non‑consent ing co‑tenants. There is no doubt that every co‑sharer is entitled to enjoy a joint property and, if he enjoys to the exclusion of the other co‑sharers and in excess of his own share, he cannot be forcibly evicted from the joint land though he is liable to pay compensation for use and occupation of the land in excess of his own share to the other co‑sharers. The remedy of the co‑sharer not in actual possession is to bring a suit for partition and get a decree for possession of his specific share on partition.

8. The question is what would be the position if he enjoys the same land by inducting permanent tenants on it. The tenancy created by the co‑sharer in possession may not be valid and binding against the other non‑consenting co‑sharers. But does it follow that such a non‑consenting co‑sharers can dispossess the tenant inducted on the land by a co‑sharer who is in exclusive possession (not in ouster of the other co‑sharers but in actual physical posses sion). It is no doubt true that every co‑sharer has equal right of enjoyment in every part and parcel of joint land. If one co‑sharer is in possession of a specific part of a joint land and is in enjoyment of it, the other co‑sharers cannot dispossess him without a suit for partition. That is the principle enunciated by their Lordships of the Privy Council in the case of Robert Watson & Co. v. Ram Chand Dulta and others (17 I A 110 (120)), where their Lordships observed " It seems to their Lordships that if there be two or more tenants‑in‑common, and one A be in actual occupation of part of estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant‑in‑common attempts to come upon the said part for the purpose of carrying on operations there inconsistent with the course of cultivation in which A is engaged, and the profitable use by him of the said part, and A resists and prevents such entry, not in denial of B's title, but simply with the object of protecting himself in the profitable enjoyment of the land, such conduct on the part of A would not entitle B to a decree for joint possession."

9. The same principle will apply if one of such co‑tenants is in possession of a 'parcel of a joint Land by inducting a perma nent tenant on it. The tenancy created by the co‑sharer in possession may not be valid and binding against the other non- consenting co‑sharer tenants, but it cannot be disregarded entirely. The principle stated in Freeman on Co‑tenancy and Partition may profitably be quoted here as follows: " A lease or deed by one tenant‑in‑common to a stranger of a portion of the joint estate, although voidable by the co‑tenants who do not joint therein, is valid between the parties and against all persons, unless so avoided. If the title of the co tenant entitled to disaffirm the conveyance becomes vested in the one by whom it was executed, the newly‑acquired title of the lessor or grantor will enure by estoppel to the benefit of the lessee or grantee. Such a conveyance is undoubtedly void so far as it undertakes to impair any of the rights of the other co‑tenants. It will not justify the grantee in taking exclusive possession of the part described in his deed. It will not deprive the other co‑tenants of the right to enjoy every part and parcel of the real estate ; nor can it, to any extent, prejudice or vary their right to a partition of the common property. The grantee is liable to lose all his interest in the parcel conveyed to him, by its being set‑off to some others of the co‑tenants upon partition. But although the deed does not impair the rights of the other co‑tenants it by no means follows that they may treat it as void, or entirely disregard it. While falling short of what it professes to be, it nevertheless operates on the interest of the grantor by transferring it to the grantee."

10. If such a tenant inducted on a parcel of land of a joint estate by a co‑sharer ‑in possession of that parcel of land is dispossessed by the non‑consenting co‑sharers, certainly the tenant is entitled to be restored to possession and the tenant is entitled to continue to possess the same land till there is a partition among the co‑sharers and if the land is allotted to the share of the grantor, the tenant will continue to possess the same as a tenant of the grantor, but if the land is allotted to the share of a non‑Consenting co‑sharer, then he will get it free from encumb rances created by the other co‑sharers and the right of the tenant will shift to the land allotted to the share of the co‑sharer who inducted the tenant on a parcel of land of the joint estate, and this transfer of the tenancy of the land allotted to the share of the grantor will be with all of its incidence and consequence.

11. It is contended by Mr. Pal, the learned Advocate for the respondent, relying on my, decision in the case of Harendra Mohan Majumdar v. Sudhir Chandra De and others ((1955)7DLR519=PLR5Dacca229) that, though a co‑sharer in possession of a joint land is entitled to remain in possession of such land and the remedy of the other co‑sharers out of possession is to bring a suit for partition and get possession of their specific shares, he cannot induct a perma nent tenant on such a land, and, if he inducts a permanent tenant on such a land, the non‑consenting co‑sharers can dispossess such a tenant. The decision in that case is misinterpreted by the learned Advocate. It is apt to be misinterpreted and misunder stood. Here I get an, opportunity to explain it. A decision is to be read with reference to the facts and circumstances of the case and not independently of it. There, in that case, the finding is that the land was in joint possession of all the co‑sharers and one of such co‑sharers inducted a tenant on such joint land without the concurrence of the other co‑sharers. So I have held that such a tenancy in the joint land created by one of the co‑sharers in the land which is in possession of all jointly cannot be binding on the non‑consenting co‑sharers and they can continue their possession of their land disregarding the tenancy created by such a co‑sharer in such a land. There may be cases where several co‑sharers may be in joint possession, as for example, several brothers, after their father, are in joint possession of their father's estate or one of such co‑sharer is left in management and possession of the same on behalf of all. Such a co‑sharer cannot induct permanent tenant on such joint land. The decision in that case is not applicable to the facts of the present case where both the Courts below held that the grantor of the lease to the plaintiff was in exclusive possession of the land which is agricul tural follow land and the lessee, after taking lease,, reclaimed it and made it fit for cultivation and, long after it, the defendant purchased a share in the joint estate from some of the other co‑sharers of the joint estate who were not in actual physical possession of the disputed land. Though they are entitled to possess the same as joint owners of the estate, they cannot dis regard the lease entirely and take forcible possession of it. In such circumstances, the principle enunciated by their Lordships of the Privy Council in the case of Robert Watson & Co. v. Ram Chand Dutt and others and the principle enunciated in Freeman on Co‑tenancy and Partition, quoted above, will apply as the case may be. Therefore, it is not correct for Mr. Pal to contend on the authority of the case of Harendra Mohan Majumdar v. Sudhir Chandra De and others that the tenancy created by a co‑sharer of a joint land is not binding on the defendants‑respon dents, and they can forcibly take possession of the land dis possessing the tenant inducted on the land by another co‑sharer without resorting to a suit for partition of the joint estate.

12. Mr. Pal next contends that at any rate when the defendants who have got title in the land went into possession, somehow or other, they cannot be evicted from the land by the plaintiffs and they are not entitled to get a decree for recovery of possession after evicting the defendants from the land. I am unable to accept this contention of Mr. Pal as correct on the principle enunciated in Freeman on Co‑tenancy and Partition quoted above. The lease created by a co-sharer, may not be valid and binding against the non‑consenting co‑sharers but it by no means follows that they may treat it void or entirely disregard it. The lease by one tenant‑in‑common to a stranger of a portion of the joint estate, although voidable by the co‑tenant who do not join therein, is valid between the parties and against all persons, unless so avoided. Principle is that the co‑sharer who inducted the tenant on the land is equally entitled to enjoy and possess the same as the non‑consenting co‑sharer. The only remedy, as pointed out, is to partition the common property and to get possession of his specific share in the common property. The non‑consenting co‑sharer cannot take the law in his own hand and dispossess the tenant inducted on the land by a co‑sharer who is in exclusive possession of a parcel of tile land. Exclusive posses sion here means possession not in denial of tile right of the other co‑sharers but in actual possession as his separate property. In common law if a person in possession is dispossessed by a person other than the real owner, he is entitled to be restored to the possession of the land from which he was dispossessed. Though a co‑sharer is equally entitled to possess the land, he is not entitled to dispossess any co‑sharer who is already in possession of it, either directly or through his tenant. If a co‑sharer, who is not in possession., dispossesses such a co‑sharer or his tenant, certainly such a co‑sharer or his tenant is entitled to recover possession.

13. Mr. Pal, the learned Advocate for the respondent, contends that the land of Schedule II is not covered by the lease, Exh. 2, granted to kaderali and, as such, the principle enunciated by Freeman on Co‑tenancy and Partition is not applicable to the case. Both the Courts Wow found that the Schedule 11 land which is the disputed land in the suit was subsequently reclaimed by Kaderali and he paid rent to the landlord for this excess land and the landlord recognised Kaderali as a tenant in respect of this reclaimed land. So even if the Scheduled II land is not included in the lease, Exh. 2, by the grantor, he subsequently recognised Kaderali on receipt of rent as his tenant in respect of Schedule II land which was also in possession of the grantor and it because part and parcel of the raiyati created by Exh.

2. This fact could not have been overlooked even by the learned Subordi nate Judge but he held that even then the plaintiffs have not per fected their title by twelve years of possession under the Sylhet Tenancy Act. It is an admitted fact that the present contesting defendants are recent purchasers of the estate by Exhs. A to A (5) commencing from 1934 to 1944 (1341 to 1351 B. S.) and, long before that, the land of Schedule II was reclaimed by Kaderali who was possessing it as a part and parcel of his tenancy granted by the co‑sharer in possession as per Exh. 2 and it was recognised by the co‑sharer landlord who inducted Kaderali on the land as his tenant on receipt of rent, Exh. 6 series. No question of perfection of title under the Sylhet Tenancy Act does arise. 1n these circumstances of the case, the question is not whether the plaintiff has perfected his title of tenancy by twelve years. The question is how far a tenant inducted on a parcel of joint land by a co- sharer in exclusive possession is valid and binding, how far such a tenant is entitled to retain his possession against the non- consenting co‑sharers of the estate, and how far he is entitled to recover possession if he is dispossessed by the non‑consenting co‑sharers of the joint land.

14. Mr. Dutta, the leaned Advocate for the appellants, drew my attention to the findings of the trial Court at page 7 of the paper‑book where the trial Court observed as follows :‑- " It appears from the kabuliyat, Exh. 2, that he took settlement of two hals of land but the present suit is for 2 hals 5 kears and odd land. The kabala, Exh. 1, is for 2 hals. But the boundaries of the kabala, Exh. 1, and kabuliyat, Exh. 2, are identical with the boundaries of the plaint Schedule No.

1. The kabuliyat, Exh.2, is for 2 hall no doubt but its boundaries will prevail. Touzi for 1347 B. S., Exh. 5 (a), goes to show that Kaderali had two hals of land at the suit kitta but the Touzies from 1348, B. S. to 1359 B. S. Exits. 5, 5b to 5k, go to show that he used to pay for 2 hals 5 kears and odd land." From these observations, Mr. Dutta, the learned Advocate for the plaintiffs‑appellants, contends that the land of Schedule II is not outside the lease, Exh. 2, granted in favour of Kaderali. From Exh. 2, it appears that the land was leased out not by a specific measurement but by boundaries with a stipulation to the lease that if, tin measurement, more lands are found, than the tenant will pay addition rent for additional area at the rate fixed. Though the area of the land demised has been described to be two hals only, yet it appears that the entire land within the boundaries given in the kabuliyat was let out and the disputed Schedule II land is within these boundaries. It is an established principle that in case of difference between the area mentioned and the area covered by the boundaries given in a document, the boundary will, prevail.

15. The learned Subordinate Judge has not set aside this finding arrived at by the trial Court. Therefore, it is clear that the land is not in excess of the land granted by the lease. The learned Subordinate Judge is absolutely wrong in holding that when the plaintiffs have not perfected their title under the Sylhet Tenancy Act by possession for over twelve years, they are not entitled to get a decree for recovery of khas possession.

16. The result, therefore, is that this appeal is allowed with costs. The judgment and decree of the lower Appellate Court are set aside and those of the trial Court restored with the modification that though the plaintiffs are entitled to a decree for khas possession after evicting the defendants on the basis of their lease, Exh. 2, they are not entitled to get a declaration of their title against the non‑consenting co‑sharers.

17. Leave under Clause 15 of the Letters Patent asked for by Mr. Sabitaranjan Pal is refused. K.B.A Appeal allowed.