P L D 1964 Dacca 739 (PLP)

On a consideration of the evidence led in the case, the learned Munsif reached the conclusion that the defendant No. 1 has no tenancy right of the falling of in the shares of Tamiran and Safiran but he refused to give the plaintiff any relief on the ground that no suit for partition was instituted. The learned Subordinate Judge who heard the appeal reversed the decision of the trial Court and decreed the suit. He made a declaration to the effect that the plaintiff and his co‑sharers have title to the suit land and he directed that they should recover possession of the suit land by evicting the defendants there from. Mr. Mahbabur Rahman appearing for the defendant‑appellant pressed only one point and made a gallant argument to the effect that the suit must be dismissed on account of the effect of parties. His contention is that the learned Subordinate Judge on a consideration of the evidence has found that the plaintiff is entitled to a share of 14 as. 4 pies in the suit land and he also found that the remaining share of 1 anna 8 pies must go to Zahir and Osman, the brother's son of Safiran. He submits that the plaintiffs have instituted the suit without impleading his co‑sharers. Therefore, this suit cannot be proceeded with in the absence of Zahir and Osman who are necessary parties. Elaborat ing his argument, Mr. Rahman has further submitted that it would be prejudicial to allow this case to be proceeded with in the absence of Zahir and Osman. Mr. A. T. Sadi learned Advocate for the respondents submits that the (sic) is against a trespasser and the learned Subordinate Judge has found that Zahir and Osman are also co‑sharers in their absence. They have, therefore, suffered nothing and in future it would be open to them to bring a partition suit if they find joint possession inconvenient and in that partition suit their sharers might be adjudicated upon, if necessary. On a careful consideration of the position that emerges in this case I am of opinion that the point necessary to be determined is whether a co‑sharer can maintain a suit against a trespasser in the absence of some other co‑sharers. It is true, as rightly con tended by Mr. Rahman, that on the finding of the learned Judge himself there are two other co‑sharers, namely, Zahir and Osman who have been left out. Both the Courts below have concurrently found that so far as the defendant is concerned, he has no right, title and interest in the suit land. The trial Court dismissed the suit for, in the opinion of that Court, in the facts and circum stances of the case, a partition suit should be instituted. The appellate Court has also found that defendant has no title to the suit land whatsoever and decreed joint possession with the absentee co‑sharers. It is, therefore, clear that the defendant is a trespasser. I really do not see how a trespasser can resist a suit such as this one on the ground of defect of parties. A co‑sharer is undoubtedly entitled to maintain a suit for ejectment against tres passer without impleading all the co‑sharers. Both the Courts have found that the plaintiffs have right, title and interest and he is certainly entitled to a declaration to that effect. So far as possession is concerned, the plaintiffs not being owners of the whole of the suit land, cannot get possession of the land in excess of share held by them. They are, therefore, to get joint possession with the trespassers for the present. They will have to take recourse to a partition suit for exclusive possession in due course. The view expressed above finds support in a Division Bench decision of the Calcutta High Court consisting of Nasim Ali and Henderson, JJ., reported in 40 C W N 81, Nasim Ali, J, observed as follows; "In fact as has been stated above the practice in this Court had been all along to give the co‑sharer a decree for joint possession with the trespasser, leaving the plaintiff to work out his further rights by a separate suit for partition." The learned Judge proceeded further to say: "Therefore, it is clear that the plaintiffs in the present case having failed to prove their exclusive possession of 12 annas share before the dispossession by the defendants and the plaintiffs' title to the extent of four annas share only having been found, the lower appellate Court was right in passing a decree for joint possession in favour of the plaintiffs to the extent of four annas share only". In the case before me Mr. A. T. Sadi has not been able to show any finding to the effect that the plaintiffs were in exclusive possession of the suit land before the dispossession. In the absence of any finding that they were in exclusive possession, I am unable to give direction for exclusive possession. That the point made by Mr. Rahman is however, not sustainable in law is apparent from the following observation of Sen, J. in the case of Sheotahal Dube v. Lal Narain Prasad Chand and others (A I R 1931 All. 208). In that case it was held that where a property is held in co‑ownership, it is open to a co‑owner to maintain a suit for ejectment against a trespasser. It is not necessary that other co‑sharers should be joined with him as co‑plaintiffs in this suit. To the same effect is the decision in the case of Pitamberdas and others v. Bhwanilal and others (A I R 1932 Sind 220). In that case it was observed as follows:- "It is well‑settled that a single co‑sharer or tenant‑in‑common may institute a suit for ejectment against a trespasser without impleading the other co‑sharers or tenant‑in‑common as parties to the suit." It was held in the case of Naresh Chandra Basu v. Hayder Sheikh Khan and others (A I R 1929 Cal. 28) that a person who is entitled to a lesser share in a land, can bring a suit for ejecting the trespasser but he cannot get a decree for possession of the whole of the land, but is entitled to recovery of possession only to the extent of his share although he can retain possession of the joint property as against a trespasser. In the case before me, if the plaintiff would have been in possession of the land, they would be entitled to retain the whole of it irrespective of the share held by them. They cannot be given possession of the whole of the land in the absence of the proof that they were possessing the same prior to dispossession but this case is also an authority for the proposition that a suit is undoubtedly maintainable. It was also held that such a suit was maintainable in the case of Sambhu Gosain and another v. Piyari Mian (A I R 1941 Pat. 351). In that case it was held that one of several co‑owners is entitled to maintain an action in ejectment against a trespasser without joining the other co‑owners as parties to the action. It is therefore a well‑settled principle of law that a suit against a trespasser is maintainable by one of the co‑sharers. In the result, the appeal is dismissed with costs declaring that the plaintiffs have 14 annas 4 pies share in the suit land and the decree of the first appellate Court are affirmed subject to this modification that the plaintiffs are entitled to joint possession of the suit land to the extent of their share along with the defendants. This decision is however without prejudice to the rights of Zahir and Osman who have the remaining share of 1 anna, 8 pies in the suit land. S. Q. Appeal dismissed.