JUDGMENT
Ramaswami, J.
1. These appeals are presented against the judgment of the Addl. Subordinate Judge, Patna.
2. The question to be examined in these appeals is whether the pltfs. are entitled to recover compensation for their share of the produce of the land in dispute for the years 1348 to 1350 Fasli from the various defts. To enable this question to be considered, it is necessary to state the material facts so far as they are proved or admitted. The pltfs. alleged that 00.28 acre of khata No. 4, 01.50 acres of khata No. 27 & 29.83 acres of khata No. 3 were undivided bakasht land which belonged to the sixteen annas maliks ; that the defts. were to cultivate the land & to divide to (sic) the pltfs their share of the produce. Defendants 1 to 7 contested the suit on the ground that khata No. 4 was not the bakasht land of the sixteen annas landlords. As regards khata No. 3, the defta. asserted that excepting 00.95 acre the entire area was divided amongst the maliks before the survey & the possession of the different maliks was noted in the record-of-rights. As regards .95 acre of khata No. 3 & 1.64 acres of khata No. 27, it was stated that these lands were also divided amongst the maliks before the survey had taken place. The defts. therefore, denied that the pltfs. were entitled to compensation representing any share of the produce. The learned Munsif, upon a consideration of the evidence, held that the pltfs. were entitled to a decree for compensation.
3. In appeal, the learned Subordinate Judge reversed the decree of the Munsif holding that the pltfs. were not entitled to recover any compensation from the defts. The learned Subordinate Judge found (1) that khata No. 4 was not the bakasht land of the sixteen annas landlords, but defta. 12 to 14 alone were entitled to cultivate it; (2) that as regards khata Nos. 3 & 27, there is no complete partition, but the maliks were cultivating the land separately by some kind of mutual arrangement and (3) that defts. 1 to 7 were in possession of more than 14 acres of bakasht land, though, as a matter of fact, they were entitled to hold about 12 acres according to their sixteen annas milkiat share. After reaching at this finding of fact, the lower appellate Ct. considered that the pltfs. were not entitled to a decree for compensation because there was no proof that the defts cosharers had excluded the pltfs. or ousted them from their possession or had challenged their title to the joint possession of the land of which they were tenants-in-common.
4. In support of these appeals, learned counsel for the appellants stressed the argument that since defts. 1 to 7 were found in possession of more than their proper share of the bakasht land, the pltfs. were entitled to a decree, though there was no ouster or exclusion alleged in the plaint. Learned counsel referred to the cases of the Midnapur Zamindary Co. Ltd. v. Naresh Narayan, 29 0. W. N. 34 : (A. I. R. (11) 1924 P. C. 144) & Watson & Go. v. Bamchund Dutt, 18 Cal. 10 : (17 I. A. 110 P. C.) in supporb of his argument. But the facts of these cases are manifestly different from those of the present ease. In case of those cases the cosharer was held entitled to a decree for compensation or mesne profits because the defts. cosharers had excluded him or ousted him from possession or had impeached his title to the joint possession of the land of which they were cosharers. Learned counsel referred to the following passage in The Midnapur Zamindary Go. Ltd. v. Naresh Narayan, 29 C. W. N. 34 at p. 40 : (A. I. R. (ll) 1924 P. C. 144) :
“Where the lands in India are so held in common by cosharers, each cosharer is entitled to cultivate in his own interests in a proper & husband-like manner any part of the lands which is not being cultivated by another of his coaharers, but he is liable to pay to his cosharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a cosharer is not an ouster of his cosharers from their proprietary right as cosharers in the lands. When cosharers cannot agree as to how any lands held by them in common may be used, the remedy of any cosharer who objects to the exclusive use by another cosharer of lands held in common is to obtain a partition of the lands.”
5. But this passage has got to be read with reference to the context of the facts of that case. The Midnapur Zamindary Co., Ltd. had resisted the pltf’s claim in that suit & had challenged the pltf’s title both upon the ground of adverse possession & also because they had purchased in execution of a decree a jote which they had themselves granted in respect of a part of the land of which they were entitled to joint possession with the pltf. On the contrary, the present case falls within the ambit of Chandra Kishore v. Biseswar Pal, 65 Cal. 396 : (A. I. R. (15) 1928 Cal. 216) in which the Ot. refused to grant a decree in a suit brought by the cosharers against another cosharer of immovable property to recover compensation for the occupation by the deft. of more than his share in the land of which all the cosharers were tenants-in-common. The principle is that where one cosharer is in separate possession of the common land without objection from, or ouster or exclusion of, the other cosharers, he is under no obligation either to account or to pay compensation to such cosharers in respect of the profits which have accrued to him by reason of the skill or industry which he has employed in miking good use of the property while he was in possession. The ratio of Chandra Kishore v. Biseswar Pal, 55 Cal. 396: (A. I. R. (15) 1928 Cal. 216) was followed by a single Judge of this Ct. in Shiva Narain v. Chandrasekhar Prasad Singh, A. I. R. (20) 1933 Pat. 616 : (150 I. C. 251). The Calcutta ease was also approved by a Division Bench of this Ct. in Raj Banjan Prasad v. Khobhari Lal, A. I. R. (28) 1941 Pat. 90 : (20 Pat. 162) in which a decree was granted to the cosharer-pltf. for compensation because there was exclusion of the pltfs. & there was defiance of their title on the part of the defts.
6. Referenoe should be made to Lachmeswar Singh v. Manowar Hossein, 19 Cal. 253 : (19 I. A. 48 P. C.) in which the Judicial Committee held that property does not cease to be joint merely because it is used so as to produce more profits to one of the joint owners who had incurred expenditure for that purpose, than to the others, where the latter were not excluded. Joint property being used consistently with the continuance of the joint ownership & possession, without exclusion of the cosharers who do not join in the work, there was no encroachment on the rights of any of them, as regards common enjoyment, so as to give ground for a suit. The suit was brought against the Maharajah of Darbhanga in reference to a ferry over the river Bagmati, near the Kamtowl Indigo Factory, of which the Manager, Mr. Halliday, on behalf of the Maharaja who had purchased it, was made a deft. As purchaser of the factory, the Maharaja had become a proprietor of a two-annas share in village Baigra which village adjoined Kamtowl & of the ferry. The pltfs. were the owners of the remaining fourteen annas of this Mouza, & they brought this suit, for a declaration of their right to profits of the ferry proportionate to the amount of their shares of the village. The defence of the Maharaja was that he had an exclusive right to the ferry by prescription. On the ground that the Maharaja & his predecessors had for more than twenty years worked the ferry, thus acquiring a prescriptive right to do so, the suit was dismissed in the Munsif’s Ct. The decision was reversed by the H. C. who held that the pltfs. are entitled to an account of the profits from the defts. & to recover their share thereof. The Judicial Committee reversed on appeal the decree of the H. C. & held that the suit ought to be dismissed. Lord Hobhouse who pronounced judgment of the Judicial Committee distinguished the case of Watson & Co. v. Ramchund Dutt, 17 I. A. 110 : (18 Cal. 10 P. C.) on the ground that there was exclusion of the pltf. cosharers in that case.
7. The principle has been clearly expounded in an English case Henderson v. Eason, (1852) 17 Q. B. 701 : (21 L. J. Q. B. 82) in which Parke B. laid down that :
“If one tenant-in-common occupied, & took the whole profits, the other had no remedy against him while the tenaney-in-common continued unless he was put out of possession, when he might have his ejectment, or unless he appointed the other to be his bailifi as to his undivided moiety, & the other accepted that appointment, in which case an action of account would lie, as against a bailiff as in the case of the owner of the entirety of an estate.”
His Lordship further observed that :
“There are obviously many cases in which a tenant-in-common may occupy & enjoy the land or other subject of tenancy-in-common solely & have all the advantage to be derived from it, & yet it would be most unjust to make him pay anything. For instance, if a dwelling-house, or barn or room, is solely occupied by one tenant-in-common, without ousting the other, or a chattel is used by one co-tenant-in-common and nothing is received, it would be most inequitable to hold that he thereby by the simple act of occupation or use, without any agreement, should be liable to pay a rent or anything in the nature of compensation to his co-tenants for that occupation or U3e, to which, to the full extent to which he enjoyed it, he had a perfect right.”
8. Upon these grounds I would affirm the decree of the lower appellate Ct. & dismiss these appeals with costs.
Rai, J.
9. I agree.