Allahabad High Court
Sri Ram (Deceased By Lrs.) And Anr. vs Chauthi (Deceased By Lrs) And Ors. on 28 November, 1988
Equivalent citations: AIR1989ALL53, AIR 1989 ALLAHABAD 53, (1989) 15 ALL LR 51, (1989) REVDEC 60, (1989) ALL WC 256
JUDGMENT Amarendra Nath Varma, J.
1. This is a defendants second appeal arising out of a suit for injunction filed by the plaintiff-respondent restraining the defendants from interfering with his possession over the disputed land Both the courts below have concurrently held in favour of the plaintiff-respondent and decreed his suit. Aggrieved, the defendants have filed this second appeal.
2. Shortly, the plaint case was that at a private partition between Shankar (the predecessor in interest of the plaintiff- respondent), Hari (father of Mahengu, the appellant No. 2 herein) and Sri had taken place long ago and that at that private partition the disputed land came to the share of Shankar. Shri and Mahengu, the defendants in thesuit, were, however, illegally interfering with the plaintiff's possession over the land in suit and were trying to dispossess him therefrom.
3. The suit was contested by the appellants. Their defence was that no such partition had taken place in point of fact. Both the courts below have, on an exhaustive consideration of the documentary and oral evidence on record, concurrently held that the private partition did take place as asserted by the plaintiff respondent. On this finding the suit of the plaintiff respondent was decreed by both the courts below. Before the lower appellate court two points were urged on behalf of the appellants. These were :
1. Whether there was any partition between Shanker, Hari and Shri and, if so, its effect?
2. Whether the plaintiff was in possession over the suit property on the date of the suit?
4. It cannot be seriously disputed that both these issues were essentially issues of fact. The finding on the question whether there did take place any private partition as asserted by the plaintiff respondent in point of fact was not assailed and rightly so by Sri Sankatha Rai as the same cannot be said to be vitiated by any error of law. The finding on the issue of possession was also not seriously challenged by Sri Sankatha Rai being a finding of fact which was not vitiated by any error of law.
5. Sri Sankatha Rai, however, submitted that in order that a private arrangement between the co-sharers may operate as a private partition there must not only be an arrangement for separate enjoyment of specified portions of the properties and holdings but also division of rent and inasmuch as there was nothing to indicate that any division of rent had taken place the private arrangement could not operate as a partition between the parties.
6. I am unable to agree. The question whether a private arrangement could operate as a partition between the co-sharers has been the subject of several decisions of this court the earliest of which is reported in AIR 1946. All 200 (Abdul Haq v. Mohd Hashin) in which a some what similar contention was disposed of by the Bench as follows : --
"The co-sharers in a mahal have a right to effect a partition by private arrangement. Partition among the cosharers once effected either through court or by private treaty puts an end to the joint ownership of the parties. Thence forward the parcels of land allotted to different cosharers are absolutely distinct in the eye of law and one has nothing whatsoever to do with the others."
It will thus be seen that the private arrangement set up by the plaintiff operated as a partition for all practical purposes, it had the effect of breaking the jointness of the ownership of the parties. The result of such an arrangement is that one co-sharer cannot claim to interfere with the right and possession over the parcel of land allotted to the other. It will be noticed that this legal incidence does not depend for its effectiveness on the division of the rent insofar as the right to enjoy the properties allotted to each co-sharer at such a partition is concerned. Division of rent is, to my mind, not a condition precedent for the effectiveness of a private partition. It is another matter that the party interested in the division of rent may institute a separate proceeding in the competent court for appropriate relief.
7. Be that as it may, for the limited purpose of considering whether the plaintiff was entitled to the grant of injunction, It was sufficient that there was a private arrangement between the parties at which the disputed land came to the share of the plaintiffs' predecessor, such an arrangement was clearly binding on the defendants. On that premise alone, the plaintiff had become entitled to t he relief granted to him by the courts below.
8. In the result, the appeal fails and is dismissed but I make no order as to costs.