1. This appeal is connected With S.A. No. 95 of 1923. The facts of the two cases out of which these connected appeals have arisen are practically the same.
2. An occupancy tenant Bagwanta Singh died before the year 1884. On his death, Bhagwan Singh, the predecessor-in-title of the respondents, took possession of the holding. There was a litigation between him and the widow of Bhagwanta, Mt. Newasi, which ended in a compromise effected on the 17th of June 1884. By that compromise the widow really handed over the entire holding to Bagwan Singh. Later on, the daughter of Bhagwanta Singh brought a suit of her own, but it was held that the compromise held good during the lifetime of her mother. Mt. Newasi died in April 1910. Some time after, her daughter brought another suit to recover the holding, but she was again unsuccessful. After that suit had been dismissed, the two suits out of which these appeals have arisen were brought by co-sharers of the mahal against the descendants of Bhagwan Singh for obtaining joint possession over the holding Let it be mentioned here that Bhagwan Singh was and the respondents are also co-sharers in the village. The defence was that the respondents were co-sharers in the village and were in peaceful possession, and the plaintiff's, whose title to the land was not denied, were not entitled to obtain joint possession, though they might sue for partition, or for profits.
3. The Court of first instance gave a decree for joint possession, but it made it clear that that decree did not entitle the plaintiffs to obtain physical possession by ousting the respondents from any portion of the plaint land. Both the plaintiffs filed appeals. The learned Subordinate Judge who heard them found no reason to grant a decree for joint possession. He held that, although the learned Munsif had pointed out that the decree for joint possession did not really mean anything but a declaratory decree, yet, having regard to the peculiar features of the people of the district, it would be in the interest of the parties themselves not to grant an ambiguous decree but a pure declaratory decree. Evidently the learned Subordinate Judge means that as soon as the plaintiffs come to know that they have got a decree for joint possession, they would ignore the word 'joint' and understand that they have been awarded possession to the extent of their share and would then use force to obtain actual physical possession on the spot.
4. In this Court it has been urged that the learned Subordinate Judge was wrong, and the appellants are entitled to a joint decree.
5. Reliance has been placed on behalf of the appellants on the case of Jagan Nath Ojha v. Ram Phal (1912) 34 All. 150. In this case it was held that, where a party is entitled to joint possession, he should be granted the relief, and, to entitle him to it, it is not necessary that he should have been in possession before and should have been dispossessed later on. This remark was made in view of the fact that for some time it was thought improper to grant decrees for joint possession unless a party had been in such possession and had been ousted. In the case before their Lordships, a lady, who was the owner of a certain zamindari share, died and the parties to the suit became entitled to that share. The defendants alone were in possession, and the pilaintiffs, who were as much entitled to the share as the defendants, asked for joint possession. The learned Judges held that, in the circumstances, joint possession might be decreed. They, however, did recognize the fact that in certain cases a Court would be entitled to refuse a decree for joint possession, and they cited the cases of Watson and Co.v. Ramchund Dutt (1894) A.W.N. 127 and Bhola Nath v. M. Buskin (1894) A.W.N. 127 as instances, in which the prayer for joint possession had been properly refused. The learned Judges expressed their dissent from the case quoted by the learned Subordinate Judge, namely, Phani Singh v. Nawab Singh (1905) 28 All. 161.
6. There cannot be the least doubt that the ruling in Jagan Nath Ojha v. Ram Phal (1912) 34 All. 150 still holds good and is binding on me. But the question is whether, in the circumstances of this particular case. I should grant a decree for joint possession or should content myself with the decree for declaration which the lower Court has granted. Apart from the fact that, in my opinion, too, the learned Subordinate Judge was right in his remark that, having regard to the nature of the population of the district of Jaunpur, it was expedient that there should not be given any ambiguous decree, I am clearly of opinion that this particular case is covered by the cases which were distinguished by the learned Judges in the case in Jagan Nath Ojha v. Ram Phal (1912) 34 All. 150. I have already pointed out that the case before their Lordships was that of a share in a zamindari. Possession over such a property does not necessarily mean physical possession over all the lands comprised in the share. In this particular case the subject-matter of dispute consists of a few particular plots of land. These lands are in the actual cultivation of the defendants-respondents. They have been in possession thereof as tenants till the widow of Bhagwanta Singh died. They obtained possession to start with as relations of Bhagwanta Singh, the original tenant. But since the death of the widow of Bhagwanta Singh, they have been in possession as zamindars, and they resisted the suit of Bhagwanta Singh's daughter as such. Thus the defendants bad been in peaceful possession of the lands as their khudkasht for well nigh twelve years before the present suit was instituted. As co-sharers jointly owning the lands the defendants are as much entitled to cultivate these particular plots as the plaintiffs themselves. The case is, therefore, parallel to the cases of Watson and Co. v. Ramchund Dutt (1891) 18 Cal. 10 and Bhola Nath v. M. Buskin (1894) A.W.N. 127 quoted above. In the former case the defendants were peacefully cultivating the lands in respect of which the relief was asked for. In the latter case certain co-sharers bad granted a lease without the consent of the plaintiff co-sharer, and the lessee was in peaceful physical possession of the lands in respect of which the lease had been granted. Their Lordships of the Privy Council and this Court refused to grant a decree for joint possession.
7. It is no doubt the case that the Code of Civil Procedure as it was enacted in 1882 did not provide for the execution of a decree for joint possession and the Code of 1908 does provide a mode as to how a decree for joint possession is to be executed. But from this it does not follow that in every case where there are joint claimants and joint owners, it is the duty of the Court to grant a decree for joint possession.
8. In my opinion, the decree of the Court below is not only expedient but right in law. I dismiss the appeals with costs which will include Counsel's fees in this Court on tho'higher scale.