' Learned counsel for the respondents points out that his clients have taken the brief from him and he has no instructions to argue the case. In the circumstances; this revision petition is being decided after hearing learned counsel for the petitioners and after going through the record.
2. This revision petition assails the concurrent findings rendered by the learned trial Court dated 23-4-1996 and by the learned Lower Appellate Court dated 13-11-1998.
3. The facts of this case are relatively straightforward. The petitioners and the respondents admittedly are co-owners of the property in dispute. They also appear to be in possession of the respective portions of the disputed property.
4. The petitioners/plaintiffs filed a suit apprehending that they will be forcibly dispossessed of the area in their possession by the respondents/defendants. In the circumstances, in the plaint filed by the petitioners it was prayed that the defendants/respondents be restrained from dispossessing the petitioners/plaintiffs otherwise than in due course of law. Instead of resisting the suit the respondents/defendants filed an application under Order VII, rule 11, C.P.C. The said application was allowed by the learned trial Court and as a consequence the plaint filed by the petitioners was rejected. An apnea' filed by the petitioners was also dismissed by the learned District Judge.
5. The ground taken by the two forums below while rejecting the plaint of the petitioners is that they have not been able to establish that they are exclusive owners of the distinct areas comprised in the common Khata. This can hardly be a ground for rejecting the plaint which has sought relief to the extent that the petitioners may not be dispossessed otherwise than through due process of law.
6. It is true that each co-owner is deemed to be owner of every inch of the common Khata as has been held by the learned trial Court. From this, however, it does not follow that one of the co- owners, who is in possession of a portion of the joint Khata can be forcibly dispossessed therefrom.
7. In the foregoing circumstances, I find that the two Courts below have acted illegally in rejecting the plaint filed by the petitioners. As a consequence, the impugned orders dated 23-4-1996 passed by the learned trial Court and 13-11-1998 passed by the learned District Judge in appeal are set aside.
8. The suit shall proceed before the learned trial Court on merit. This order, however, shall not preclude the respondents/defendants from filing a suit for partition of the joint Khata.