1. This is a plaintiff's appeal in a suit for possession of a holding of an occupancy tenant, one Raghunandan, who had died. In this case it was at first in dispute as to whether the plaintiffs or the defendants had taken possession of the holding, but this issue has been found as a fact in favour of the defendants. The history of the circumstances in which the parties find themselves is very simple. Plaintiffs and defendants are both cosharers in the mahal. Prior to Raghunandan's death the defendants had mortgaged their zamindari share to the plaintiffs and they had also-it is not clear whether 'before or after their mortgage to the plaintiffs-obtained a mortgage of his occupancy rights from Raghunandan. With the legality of this latter transaction we are not concerned but only with the fact that it has been found that prior to Raghunandan's death the defendants were in possession of the holding as mortgagees from Raghunandan. On Raghunandan's death they remained in possession of the holding. The plaintiffs got a decree for their title to the holding from the trial Court; they have also got a decree for possession. The trial Court was of opinion that the defendants, after the death of Raghunandan, were mere trespassers. The lower appellate Court was of opinion that they were cosharers in peaceful possession and therefore entitled in the ordinary way to remain in possession, presumably as their khudkasht. The sole question, therefore, for decision in this appeal is, in what capacity were the defendants in possession subsequent to the death of Raghunandan. We have heard learned Counsels on both sides and they have both asserted their respective propositions which they wish us to accept but neither of them has been able to refer us to any authority in support of his particular proposition. The contention of the appellants that the defendants are mere trespassers rest upon the suggestion that the cosharer defendants when they mortgaged their zamindari rights with possession ceased to be anything but the merest shadows of cosharers. They no longer really were cosharers at all. All their rights, of every sort and description, had passed to the plaintiffs. This is a proposition that we are not prepared to accept, and even at the outset when we put the question to the counsel for the appellants
Were the defendants after their mortgage still entitled to be regarded as cosharers or not?
he had to admit that they must be regarded still as cosharers. It is manifest that the sum total of their rights as cosharers cannot be said to have belonged to the plaintiffs merely by virtue of the mortgage.
2. It has to be admitted on behalf of the appellants that all the rights of a cosharer remained in the defendants except those which definitely passed to the plaintiffs by virtue of their mortgage. For instance, they would still have remaining in them their pre-emption rights, and would be necessary parties in a suit for partition.
3. We are unable to see on what principle it can be held that they must have lost any right to take peaceful possession such as they obtained in this case. In fact the correctness of the propositions had to be, and was, admitted at the outset, firstly that the defendants were still cosharers, and secondly, that a cosharer is entitled to obtain and keep peaceful possession; but then this second proposition had to be further qualified, by limiting it to:
a cosharer who has not mortgaged all his zamindari rights
4. It is suggested that in this case the plaintiffs were entitled to take possession and to oust the defendants by virtue of the fact that they were in possession of the whole zamindari rights at the time Raghunandan died. How inequitably the proposition for which the defendants contend might work may be illustrated by what is an extreme example but is still a fair example indicative of the effects of the principle which the defendants assert. Let us suppose that the plaintiffs and defendants have each an eight annas share and on 1st January the defendants mortgage their eight annas to the plaintiffs for one year. Let us next suppose that during the 12 months 100 occupancy holdings fall vacant, in other words, escheat to the zemindars. The defendant has to claim that the mortgagee for the time being in possession of the full 16 annas zemindari rights can take peaceful possession of all and the whole of those 100 holdings and the mortgagor has no right to touch one of them. At the end of the year on 31st December the mortgagor redeems the mortgage but according to the defendant the one-time mortgagee can hold on to the whole of those 100 holdings, for he can say:
I acquired these by virtue of being a cosharer, not necessarily in whole or in part by virtue of being a mortgages of your share. You the one-time mortgagor cannot say which of these holdings I took peaceful possession of by virtue of being a cosharer myself and which yon say I took possession of as being a mortgagee of your share.
5. He would thus be able to hold on to the whole of the 100 holdings of which he had so acquired possession. This is merely an instance of the inequitable result of the principle for which the defendants contend. We prefer the broad principle that it having to be admitted and being admitted that the plaintiff as a cosharer bad not lost all the rights of a cosharer it is for the defendant-appellants to show us that he had lost this particular right. We see no reason to interfere with the decree of the lower appellate Court and dismiss the appeal with costs.