AIR 1927 CALCUTTA 411

Calcutta High Court

Hon'ble Judge(s): Duval, Mitter , JJ

Partition - Suit for - Plaintiff must be in actual or constructive possession of the subject-matter - Execution of decree for khas possession barred - Second suit for khas possession is barred. The plaintiff is entitled to maintain a suit for partition if his possession to some part of the joint property is admitted or established. It is essential that he should be in actual or constructive possession of the properties, and whether he has such possession or not, is to be determined in view of the principle that the possession of one co-owner is prima facie the possession of all the co-owners, and his possession must be presumed to be in conformity with his right and title as co-owner. If it is established, that he is not in possession at all of any portion of the joint property, that there has been a complete ouster, he must sue for recovery of possession and partition and pay ad valorem Court-fees upon a plaint appropriately framed for the purpose. It, however, the possession of the plaintiff is admitted or established over what forms part of the joint estate, the suit does not cease to be one for partition, merely because the defendant denies the title of plaintiff to a share of the estate or to specific lands of the estate and asserts a hostile title and adverse possession therein. If the right of the plaintiff to execute the decree for kha....