P (PLP)

(d) Pleading‑Case not to be decided, on mere pleading but on evidence. A case should be decided on evidence and not on a mere pleading in the defence; because the statement in the written statement is no evidence unless it is proved by evidence. (1913) 18 C. W. N. 420 dissent. A. S. Chowdhury, (amicus curiae), for Appellants. Motilal Acharyya, for Respondent No.

1. GUHA, J.‑This appeal is on behalf of the defendants and in the trial Court the plaintiff's title was declared but his claim to joint possession was dismissed, but on appeal by the plaintiff, the learned Additional District Judge, Second Court, Mymensingh, declared plaintiff's title to 16th share of the suit lands and also ordered that the plaintiff would get joint possession in the said share with the defendants. Hence this second appeal. The plaintiff's case lies in a short compass. One Fatua Mudi held the lands of Khatian No 33 in Korf a right under the plaintiff and his co‑sharers, the defendants 1 to 3 and proforma defendants 10 and 11, and that after the death of Fatua, his heirs sold this land with the consent of the landlords and transferred two plots of land in favour of Ibir Sheikh with the permission of the landlords and there 'was division of the tenancy. Plaintiff's case is that by successive transfers in favour of defendants 1 to 3, the heirs of Fatua parted with all their interest in the land and there was abandonment entitling the landlords to re‑enter. Hence the suit for recovery of possession of plaintiff's 1/6th share in the superior jote. The suit has been contested by the defendants Nos. l , to 3 and they contend inter alia that Fatua Mudi had transferable and heritable raiyati interest and there could be no abandonment, that under‑raiyati is transferable by custom, that they purchased the land with the consent and knowledge of the plaintiff, who prepared the draft of their kebalas and withdrew the landlord's transfer fee and that other landlords recovered decree for rent in presence of the plaintiff and they resisted the claim for partition on the ground that there are other common properties jointly held by them and there cannot be any partial partition of the suit land only. The learned Munsif decreed the suit in part declaring plaintiff's title to 1/6th share of the suit land but dismissed his claim for joint possession holding inter alia (a) that after the death of Fatua his heirs sold two out of the 5 plots to one Ibir Sheikh, who obtained settlement of the same and there was sub‑division of the tenancy, (b) that between 1937 to 1939 the defendants 1 to 3 got the suit land by Exts. B (1) to B (3) from the heirs of Fatua, (c) that in the record of rights the heirs of Fatua, have been recorded as under‑raiyats and the defendants have failed to rebut the presumption of the entry in the record of rights and that presumption cannot be rebutted by the presumption arising under section 5 (5) of the Bengal Tenancy Act and that Fatua acid his heirs had been only under‑raiyats under the plaintiff and his co‑sharers, (d) that the plaintiff gave his consent to the transfer to the defendants, (e) that the plaintiff has purchased similar land like the contesting defendants from other tenants and is in posses sion of the same and as such the plaintiff is not entitled to joint possession but the equities between the parties can be worked out in a partition suit but the prayer for partition has not been pressed and so on equitable ground the prayer for joint possession will fail apart from the question of consent. On appeal by the plaintiff, the learned Additional District Judge, Second Court, Mymensingh, modified the decree of the trial Court and declared the title of the plaintiff to one‑sixth share and further ordered that the plaintiff would get joint posses sion with the defendants holding that the defendants had failed to make out case of consent as contemplated in section 98‑F of the Bengal Tenancy Act, and though the plaintiff is in posses sion of some lands of certain other under‑raiyats under the same jote as the defendants Nos. 1 to 3 are in possession of the present disputed land still the plaintiff will be entitled to a decree for joint possession and the equitable principle cannot be applied unless and until the plaintiff's status in respect of these lands is proved to be the same as that of the defendants by a regular suit. Hence this second appeal by the defendants. Mr. A. S. Chowdhury for the defendants appellants contends that in the facts and circumstances of this case and on the findings, the lower Appellate Court has erred in law in granting the plaintiff a decree for "joint khas possession" with the defendants. This contention of Mr. Chowdhury is, in my opinion, of substance. In support of his contention Mr. Chowdhury argues that the finding being that the plaintiff himself is in possession of ‑some lands of certain other under‑raiyats within the same jote as the defendants Nos. 1 to 3 are in possession of the present disputed lands, the plaintiff is not entitled to joint possession but his remedy lies in a suit for partition and in support of his contention he relies on the cases of Robert Watson & Co. v. Ram Chand Dutt and others, (1890) L. R. 17 I. A. 110 and Nabadwip Chandra Chakravarti and others v. Bhagaban Chandra Choudhury and others, (1925) 31 C. W. N. 496 and Mr. Chowdhury argues that the learned Additional District judge has erred in holding that the latter decision is not anplicable to this case because the defendants do not assert a hostile title but they claim only a tenancy right under the plaintiff. Mr. Acharyya for the plaintiff respondent urges that the learned District judge is perfectly justified in granting .the plaintiff a decree for joint possession and he submits that Robert Watson & Co.'s case is distinguishable and that the present case is governed by the decisions in the cases of Sarat Chandra Mukhopadhaya and another v. Rajendra Lal Mitra and others, (1913) 18 C. W. N. 420 and Kumud Lal Roy and others v.Jogendra Mohon Roy and others, (1914) 18 C. W. N. 609 ; and Mr. Acharyya further urges that unless the defendants assert a hostile title, the equitable principle will not apply. Mr. Acharyya also brings it to my notice that the defendants have not been able to substantiate their case that the presumption arising under section 5 (5) of the Bengal Tenancy Act cannot rebut the presumption arising from the entry in the record of rights showing the defendants as under‑raiyats and as the original under‑raiyats are no longer in possession and abandoned the holding, the landlords can re‑enter. In my opinion the contention on behalf of the appellants is well established on principle and is supported by authorities. In the facts and circumstances of this case the plaintiff is not entitled to a decree for joint possession and his remedy lies in a suit for partition. In, this case it is an admitted fact that both the plaintiff and the defendants Nos. 1 to 3 and Proforma defendants Nos. 10 and 11 ace co‑sharers of the raiyati jote under which Fatua Kudi's heirs, the transferors to the defendants Nos. 1 to 3 had an under‑raiyati which they transferred to the defendants Nos. 1 to 3 and that the plaintiff having an one‑sixth share in the raiyati‑claimed "joint khas possession" with the defendants in the said under‑raiyati and it has been found that the plaintiff himself is in possession of some under‑raiyati holdings under said raiyati jote. The question is whether the plaintiff can get joint khas possession with his co‑sharers defendants in the disputed under‑raiyati or his remedy lies in a suit for partition. The learned Additional District judge has held that the plaintiff can get a decree for joint possession because the defendants No. 1 to 3 do not assert a hostile title but claim only under raiyati interest therein under the plaintiff and his co‑shares. It appears to me that the decision of the learned Additional District judge is wrong on principle and is against the dictum of their Lordships of the Judicial Committee of the Privy Council in the case of Robert Watson & Co. v. Ram Chand Dutt and others, (1890) L. R. 17 I. A. 110 where Sir Barnes Peacock observed at page 120 of the report as follows : "It seems to their Lordships that if there be 'two or more tenants in common, and one (A) is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant in common (B) 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 posses sion." This case in my opinion clearly governs the present case and I am unable to agree with the criticism of the learned Advocate for the respondent. In somewhat similar circumstances to these now before me it has been held in Madan Mohon Saha v. Rajabali, 1900 I. L. R. 28 Cal. 223 and in Syed Ali and others v. Najab Ali and others (1906) 11 C. W. N. 143 that the plaintiff is not entitled to obtain khas possession of the land jointly with the defendants in possession but that the plaintiff's remedy lies in a suit for partition, where the rights of all the parties could be adjusted upon a proper basis. In the present case the plaintiff's prayer for partition has not been. pressed at the time of the trial. In the case of Basanta Kumari Dassya v. Mahesh Chandra Shaha and others (1913) 18 C. W. N 328 it has been held that the mere fact of sole occupation by one co -sharer does not necessarily constitute an ouster of the other co -sharer nor does it entitle the latter to a decree for joint possession. The question should be decided on the principles of justice, equity and good conscience as has been pointed out by the Judicial Committee in the case of Warson v. Ram Chand (17 I. A. 110). In Kamaswari Dasya v Sishuram Deka and others, (1923) 39 C. L. J. .414 it has been ruled that "where co‑owners, by arrange ment, either tacit or express, take no exclusive possession and enjoyment of different parcels of the joint property, without such definition or severance of interest as would amount to partition, the Court will not interfere with the arrangement at the instance of one co‑owner during the tenure in common and will do so on partition so far as may be necessary to make an equitable division of the property". In the case of Nabadwip Chandra Chakraverty an others v. Bhagaban Chandra Chowdhury, (1926) 31 C. W. N. 496, where the facts are almost similar to the case before me, it has been held that, "as a general proposition one co-sharer has do right to take exclusive possession of a joint property, but the question whether such exclusive possession amounts to an ouster or not depends upon the circumstances of each particular case, and where the Court is unable to hold that there was an ouster it should ‑not be right to refuse the defendant who is in possession of the benefit of the equitable principle that the mere fact of sole occupation by one co‑sharer does not necessarily constitute an ouster of other co‑sharer nor does it entitle the latter to a decree for joint possession". In the present case there is no question of ouster, that is dispossession of one co‑sharer by another or where a hostile title has been set up by the defendants and that the occupation of the latter is not consistent with joint ownership... The learned Additional District Judge is in error when he says that as defendants do not assert a hostile title therefore the aforesaid decision is not applicable. Sir George Rankin in Ram Chandra Saha and others v. Lakshmi kanta Saha and others, (1928) 47 C. L. J. has held, in a case similar to the one before me, that a co‑sharer is not entitled to a decree for joint khas possession with another, who is in sole occupation of s, holding; his possession not being hostile and not inconsistent with joint ownership. I respectfully agree with the reasonings in these deci sions and hold that the plaintiff is not entitled to a decree for joint possession in this case. On behalf of the respondents reliance has been placed upon two decisions, one in the case of Sarat Chandra Mukhopadhaya and another v. Rajendra Lat Mitra and others, (1913) 18 C. W. N. 420 and the other in the case of Kumud Lal Roy and others v. Jogendra Kohon Roy and others (1914) 18 C. W. N.

609. In the former of these two decisions it was held by, Fleteher, J. with whom N. R. Chatterjee, J. concurred at page 423 "Of course, the authorities are clear, that, unless there is an ouster of the plaintiff, he cannot use for joint possession". But Flether, J. says that "in the written statement there is a clear denial of the title of the plaintiff to have any immediate right in the property and that itself is a case of actual ouster when you read the written statement". With great respect to the learned Judge I am unable to agree with him for a case should be decided on evidence and not on a mere pleading in the defence, because the statement in the written statement is no evidence unless it is proved by evidence and again the decision in that case is opposed to the decision in Basanta Kumari v. Mohesh Chandra (1913) 18 C. W. N. 328 in which N. R. Chatterjee, J. (with whom Walnsley. J. concurred) delivered the judgment ; moreover, the finding of the learned Additional District judge in the case before me is that there is no case of ouster at all. In the latter case (18 C. W. N. 609) it appears from the judgment of Carnduff, J. as well as Richardon, J. that as a matter of fact there was an ouster and it was a case, on which one co‑sharer occupied silted up land to the exclusion of the other and it was held there that the plaintiff: was entitled to a decree for joint possession. If I may say with respect that decision is in no way different in principle from what had been held in all other decisions I have noted above and which is in accord with my view also. That case is also distinguishable in facts from the present case so in my opinion none of the aforesaid two decisions is of any assistance to the respondent. There is no substance in the contention of the learned Advo cate for the respondent that there has been abandonment giving the landlords a right of re‑entry. The facts found in this case in my opinion, do not justify that there has been abandonment either under section 87 of the Bengal Tenancy Act or under the general law and I am unable to accept this contention of the learned Advocate for the respondent. I may mention here that the learned Advocate for the respon dent is right in his contention that the presumption arising under subsection (5) of section 5 of the Bengal Tenancy Act is a weaker presumption than that arises under subsection (5) of section 103B of the said act. The presumption that arises from an entry in the record of rights is evidence whilst that contemplated in subsection (5) of section 5 of the Bengal Tenancy Act is a mere presumption. I have already held in S. A. Nos. 100 and 101 of 1945 Raja Meah and others v. Suniti Bhusan Sen that the presumption arising under section 5 (5) is a weaker presumption than that arises under section 103B (5) of the Bengal Tenancy Act. The result, therefore, is that this appeal is allowed and the judgment; and decree of the lower Appellate Court are set aside and that of the learned Munsif are restored but there will he no order as to costs in this appeal. But before I part with this case I ought to mention that I have got great assistance from Mr. A. S. Chowdhury, who has been good enough to argue the case on behalf of the appellants as amicus curiae at my request: Before I part with this case I feel that I should mention that the powers of this Court to hear amicus curiae is unfettered. Amicus curiae is a Latin expression which means a friend of the Court and in practice also it is' a friend of the Court" Amicus curiae is "one, who for the assistance of the Court, gives information of some matter of law in regard to which the Court is doubtful or mistaken or which the judge has not seers or does not, at the moment, recollect". Section 2 Co. Ins.

178. This custom cannot be traced to its origin, but is immemorial in the English Law. It is recognized in the Year Books, and it was enacted in 4 Henry IV (1403) that any stranger as amicus curiae might move the Court. Under the Roman System of Law the Judex "especially if there was but one, called some lawyers to assist him with their counsel." This custom cannot be incorporated in the English system, and it was recognised throughout the earlier as well as the latter periods of the Common Law in England. Anyone as amicus curiae may make an application to the Court in favour of an infant, though he be no relation. I v. Sen

313. An attorney as amicus curiae may move the dismissal of a fictitious suit; Halay v. Bank, 12 L. R. A. 815. the term is sometimes applied to counsel heard in a cause because interested in a similar one. The subject is elaborately discussed in Eouvier's Law Dictionary, Third Edition, Vol. I at pages 188 to

189. In my view the power lies in a judge of this Court to hear amicus curiae, where the judge thinks that he requires assistance in deciding a cause, where he is in doubt on a point of law. In this Court on one occasion a learned Advocate of this Court raised a protest but the matter was not pursued and then I indicated that on a future occasion I shall express my view in the matter; hence I am expressing my view in the matter in this case, which has been heard amicus curiae. A. H. Appeal allowed.