1. The two questions that have been referred to the Full Bench arise from a suit for joint possession of certain sir plots in the village of Baraon. Other reliefs were claimed by the plaintiff, but with these we are not concerned. The two parties to the suit are members of a Hindu family which has been found to be still in some respects a joint family. They own properties in several villages, and it appears that although there has never been any regular partition between them, they have in fact held some of these properties separately, and there is a clear finding that the defendant has been in separate possession of the sir plots in the village of Baraon for 24 years and has been paying profits in respect of these plots to the plaintiff. The plaintiff's suit was for a declaration of his title to a half-share in the sir plots, and also for joint possession, and the two lower Courts decreed his suit for a declaration but found that he was not entitled to actual possession. The learned Judge of the High Court before whom the matter same in second appeal upheld these findings on the ground that under Rule 35, Order 21, Civil P. C., a decree for joint possession is now executed only by affixation of a warrant on a conspicuous part of the property, and by proclamation of beat of drum &c.; and that a decree for joint possession is only in the nature of a declaratory decree, and in effect would be of no use to the plaintiff. An appeal against this decision was filed under Section 10, Letters Patent and the Bench has referred the following two specific questions to us for decision:
(1) Whether a decree for joint possession can be granted to (one) cosharer against another cosharer under the provisions of the Civil Procedure Code of 1908 even though the former has not been in actual possession?
(2) Whether the Court has any discretion in the matter, (apart from the case where cosharers have been in separate possession by consent or acquiescence) to refuse to grant a decree on the ground that it would be impracticable or inadvisable?
2. The parties to these proceedings are joint owners of shares in several mahals and not merely cosharers in a single mahal but we do not believe that this makes any material difference in the decision of the questions before us.
3. The leading case on the subject is that of Watson & Co. v. Ram Chand Dutt  18 Cal. 10, decided by the Privy Council in 1890. In that case their Lordships refused to give a decree for joint possession to a joint owner not, it is to be observed, because the law did not provide the machinery for the granting and the execution of such a decree, but because the circumstances of the case did not warrant the Court in justice, equity and good conscience in giving the plaintiff that relief. In the judgment Sir Barnes Peacock remarked:
It seems to their Lordships that if there be two or more tenants in common, and A be in actual occupation of the part of the estate and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and B another tenant-in-common attempts to come upon the said part for the purpose of carrying on operations there inconsistent with the course of cultivation in which A is engaged and the profitable use by him of the said part, and A resists and prevents such entry not in denial of B's title but simply with She object of protecting himself in the profitable enjoyment of the land, such conduct on the part of A would not entitle B to a decree for joint possession.
4. After remarking on the waste and deterioration in the value of land that might follow in India if the Courts were invariably to give such decrees without a full consideration of the circumstances, the judgment proceeds:
In Bengal the Courts of justice in cases where no specific rule exists are to act according to justice, equity and-good conscience, and if in a case of shareholders holding land in common it should be found that one shareholder is in the act of cultivating a portion of the land which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other shareholder to appropriate to himself the fruits of the other's labour or capital.
5. We believe that the materials for an answer to both of the questions referred to us are to be found in this judgment, but we propose to review briefly some of the cases which have come before this Court in recent years in order to see how the principles laid down by the Privy Council have been applied.
6. In the case of Jagannath Singh v. Jai Nath Singh  27 All. 88, the Court refused to give the plaintiff a decree where the defendant had entered into possession of the 'derelict land' which belonged to him and his cosharers without doing anything illegal. In that case the Bench appears to have been of opinion that the Court had no power to give a decree for joint possession unless the plaintiff had been illegally ousted. The next case to which we have been referred is that of Jagannath Ojha v. Ramphal  34 All. 150 in which a decree for joint possession was given. The appeal was referred by Mr. Justice (now Sir Edward) Chamier to a Division Bench because he found that in some cases the Court had refused to give a decree for joint possession, and in his order he referred to the case of Watson & Co. v. Ram Chand Dutt  18 Cal. 10 as authority for the propositions that a decree for joint possession could be given and the decision must depend on the circumstances of the case, and that it is important to ascertain whether what the defendant is doing with the land is done in denial of the plaintiff's title. In the case before him the defendant had all along denied the plaintiff's title and the Division Bench gave the plaintiff a decree for joint possession, remarking however:
There may no doubt be cases in which the Court may not deem it reasonable is the interests of all the parties concerned to make a decree for joint possession,
though they do not give any precise indication of the kind of considerations by which the Court should be guided. We can have little doubt, however, that they believed the guiding principles to be those set forth in the case of Watson & Co. v. Ram Chand Dutt  18 Cal. 10. In three more recent cases which have been relied on in argument before us decrees for joint possession have been given. In the case of Bisheshar Singh v. Hanuman Singh A.I.R. 1922 All 314, the parties had been in joint possession of the land until 1324, but in the following year the defendant had ousted the plaintiff. In the case of Sarabjit Singh v. Raj Kumar Rai A.I.R. 1922 All. 162, the parties had been jointly cultivating the land in dispute till 1318 F. after which a tenant was put in cultivatory possession on behalf of both parties until 1321 F, after which the defendants ousted the plaintiffs apparently by getting the joint tenant to surrender the land separately to them-and the Court gave the plaintiffs a decree for joint possession. In the case of Bhargu Nath Rai v. Ap Narain Rai A.I.R. 1923 All. 445 the defendants were alleged to have dispossessed the plaintiff by collusion with some non-occupancy tenants, and the learned Judges remarked:
In the present case the learned Judge of the lower appellate Court has stated in his judgment that a decree for joint possession might lead to considerable difficulty and trouble by reason of the parties not being on good terms. In every case in which one cosharer forcibly dispossesses another or keeps another cosharer out of possession there is undoubtedly a good deal of bad feeling between them, but that is no reason for depriving a plaintiff of possession to which he is entitled. No doubt there may be cases in which joint possession ought not to be granted.
7. In every one of these cases in which a decree for joint possession has been given there appears to have been an ouster of the plaintiff by the defendant. That there has always bean a definite denial of the plaintiff's title is not so clear, but where the circumstances showed that force had been used, or where fraudulent collusion had been detected, there must always have been an implied denial of the plaintiff's title. We have not been shown any cases in which the Courts have given a decree for joint possession in circumstances like those disclosed in the present suit, where the defendant has been in separate possession with the acquiescence of the plaintiff for a large number of years and has never denied the plaintiff's title.
8. We may turn now to the two questions which have been put to us and answer them as follows:
(1) A decree for joint possession may certainly be granted to one cosharer against another. Such decrees were given before the Civil Procedure Code of 1908 came into force and the rule introduced in that Code (R. 35, Order 21) merely defines the manner in which such a decree is to be executed. Such a decree may undoubtedly be given even where the plaintiff has not been in actual possession. The late Aikman, J., in the case of Ram Charan Rai v. Kauleshwar Rai  27 All. 153, remarked:If a decree can be passed to put back a plaintiff into joint possession I see no reason why it should be considered impossible to pass a decree for joint possession in the case of a plaintiff who has never been in possession. Whether such a decree ought to be passed is another question;
and these remarks were endorsed in the referring order in the case of Jagannath Ojha v. Ramphal (3).
(2) That the Court has some discretion in the matter of granting a decree is obvious from the decision of the Privy Council in the case of Watson & Co. v. Ram Chand Dutt  18 Cal. 10, but we can find no authority in that judgment for holding that in the exercise of their discretion the Courts are to be guided by any other consideration than the rights and interests of the parties concerned. Such considerations as the danger of a riot or criminal proceedings have really nothing to do with the rights and interests of the parties inter se and should not, we consider, be entertained by a civil Court. The question whether the Court has any discretion to refuse to grant a decree in such a case on the ground that it would be impracticable must be answered in the negative. If the plaintiff is entitled to a decree in accordance with the principles of justice, equity and good conscience as laid down in the decision of the Privy Council we consider that the Court must give him a decree whether it believes that it would be useful to him or not. As has been pointed out in the referring order, even if the decree has not the effect of putting him in actual physical possession of the disputed property, it would greatly strengthen his position in the revenue Court, and the very fact that the procedure for executing such a decree has been specifically laid down in the Code of Civil Procedure shows that the legislature did not believe that the decree would be impracticable.
9. As regards the second part of the question, whether the Court has any discretion to refuse a decree on the ground that it would be 'inadvisable,' it might be said that their Lordships of the Privy Council were influenced by the question of advisability when they discussed the damage that might be done to the land if in certain cases the defendant's possession were to be disturbed. They were however mainly guided by the facts that the defendant had not denied the plaintiff's title and that he had been in peaceful possession and had earned a right to protect himself in the profitable use of the land for good husbandry. We think, therefore, that we may answer this part of the question by saying that the Court has no discretion to refuse a decree merely on the ground that it would be inadvisable for reasons unconnected with the rights of the parties. Let the papers be returned to the referring Bench. (On receipt of the above opinion, the following judgment was delivered by Sulaiman, Ag. C.J. and Weir, J.)
10. In this case the plaintiff's claim for joint possession had been disallowed by the Court below. The refusal of that relief was upheld by a learned Judge of this Court on the ground that the decree for joint possession is only in the nature of a declaratory decree and does not materially differ from it in view of the new provisions of the Code of Civil Procedure. If that view were correct we would have been bound to dismiss the claim for joint possession without considering the merits any further. Under the old Act it had been held by a Full Bench of this Court in the case of Bhairon Rai v. Saran Rai  26 All. 588 that if a plaintiff had been in joint possession of some property and had been illegally ousted from joint possession of any portion of that property by a coowner, he was entitled to be restored to such joint possession. There was, however, some conflict of opinion under the new Code. Without going into the question whether this was a fit case or not for refusal to grant such a relief we referred two questions of law for consideration by a Full Bench. The answers received make it clear that even under the new Code a Court has jurisdiction to pass a decree for joint possession where the plaintiff has not been in actual possession; but that there is some discretion in the matter of granting such a decree which has to be exercised by considering the rights and interests of the parties concerned and the decree for joint possession cannot be refused on the mere ground that it would be impracticable.
11. We must accordingly examine the facts of this case and the findings of the Court below. In the written statement the defendant did not expressly deny the plaintiff's title. On the other hand, it was admitted that they were joint zamindars. The main point taken in para. 18 was that the sir and waste lands had been in exclusive possession of the defendant, and the plaintiff had no right to get actual possession thereof. The position was made clear further by a statement of the counsel for the defendant, dated 2nd December 1921, when he stated that he had no objection to the granting of a declaratory decree to the plaintiff establishing his title to the extent of one-half, but that he would contest the plaintiff's right to obtain joint possession before the partition of the joint mahal takes place. The Court of first instance found that the sir lands in dispute had been in the defendant's possession for some 24 or 25 years and that this possession must have been with the plaintiff's consent as the plaintiff had been receiving profits from the defendant during these years. It accordingly held that it could not disturb the possession of the defendant extending over 25 years and with the plaintiff's consent. The learned District Judge also remarked that there was positive evidence of the defendant's separate possession for 24 years in the statement of the Rajah, and then held that it was clear to him that the defendant, whose separate possession had been legal from the outset and had not been by virtue of any illegal act or ouster, was entitled to retain his separate possession.
12. We, therefore, think that as in this case the defendant's possession had been exclusive and peaceful for a long number of years this is not a fit case in which his possession can be disturbed by passing a decree for joint possession in favour of the plaintiffs. We accordingly dismiss the appeal. We are of opinion that the decree for costs passed by the District Judge should be maintained, that the plaintiff should further pay the costs of the defendant before the learned Judge of this Court and bear his own costs, but that the parties should bear their own costs of the appeal under the Letters Patent.