Authored By : O Kinealy, T. Ameer Ali

O Kinealy and T. Ameer Ali, JJ.

1. This is an appeal from an order of the Subordinate Judgeof Chupra, dated the 25th of June 1892, whereby he directed that certainparties should get restitution and be entitled to be put exactly in the sameposition they were in before the suit was brought. It appears that there aretwo classes of owners in this village--one of them, Mr. Hodding, has afive-pies odd share, and Rohni Singh and others are the owners of the 15 annasodd pie share. The owners of the 15 annas share brought a suit for partition ofcertain land against Hodding. That suit was decreed in the first Court, but onappeal, the suit was dismissed on the ground that no such suit would lie. Afterthe dismissal of the suit Hodding applied in the lower Court to be put in thesame position as he was in before the suit was brought. In the meantime the ownersof the 15 annas odd had taken out execution of the decree for partition andsettled tenants upon it. Therefore, when the question of restitution arose, itbecame necessary to decide what was the position of Hodding in regard to thesetenants. The learned Advocate-General has argued that under Section 583 of theCode of Civil Procedure, restitution cannot be granted, by motion, unless thereis an order for restitution in the decree. So far as we are aware, that is aproposition contrary to the settled practice of this Court and of the BombayHigh Court, as well as of their Lordships of the Privy Council, Hodding has nodoubt aright to be put exactly in the same position in which he was before, andneither more nor less; and therefore he is entitled to joint possession withthe other owners; and no title taken pendente lite can prevent him fromremoving a tenant if he was not found on the land before the partition; or, inthe words of Section 263, he is entitled to have possession delivered over tohim, or to such person as he appoints to receive delivery on his behalf, and,if need be, by removing any person bound by the decree, who refuses to vacatethe property.

2. Now, we notice that in the Court below Hodding seems tohave been under the impression that he has a right to cut the crops. We thinkno Court could accede to that.

3. Then, it is argued by the learned Advocate-General thatit would be useless to pass the order asked for, because, although even if weremove any person who may have taken title to their land since the restitutionof the suit, their 15 annas zemindar will be entitled immediately afterwards tobring them in. It is argued on the other side that that cannot be so. Therights of owners of land held jointly has been practically settled by the PrivyCouncil in the case of Watson & Co. v. Ram Chanel Dutt I.L.R. Cal. 10 :L.R. 17 IndAp 110, and the subsequent case of Lachmeswar Singh v. ManowarHossein I.L.R. Cal. 253 : L.R. 19 IndAp 48, and whatever rights they possessaccording to law, of course they can claim. All we wish to say at present isthat Hodding is entitled to get into joint possession with the 15 annaszemindar, and to remove such tenants as may refuse to vacate. We make no orderas to costs.

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Rohni Singh and Ors. vs. J. Hodding and Ors. (06.06.1893 -CALHC)