1. This is a defendants' appeal arising out of a suit instituted by the plaintiff which has been partially decreed by the Court below. The plaintiff-respondent and the defendants-appellants are three brothers; they are joint owners of the five properties, situate in Aligarh, detailed in the plaint. Each of the three brothers owned one-third share in them. Property No. 1 is a pucca residential) house, while properties Nos. 2 to 5 are kutcha buildings known as ahatas.
2. The plaintiff, in his plaint, stated that during the period of three years from 1st June 1925, to 31st May 1928, the plaint property had been in use and possession of the defendant, that properties Nos. 1 and 2 could be let at about Rs. 300 per mensem and that therefore he was entitled to recover from the defendants a sum of Rs. 100 monthly as compensation for the use and occupation of his one-third share of these two properties. As regards properties Nos. 3 to 5 the plaintiff alleged that the defendants had been letting them out and had realized rents therefor, and he therefore claimed to recover his one-third share in the same. The defendants contended that the plaintiff was not entitled to get compensation in respect of properties Nos. 1 and 2. The properties Nos. 3 to 5 had been in wretched and ruinous condition and had been mostly unoccupied, that though some portions thereof had been let on rent on some occasions yet the income had been hardly sufficient to meet the costs of repairs. It was also pleaded that the parties owned several properties jointly, and therefore a suit in respect of profits of some of them only was not maintainable.
3. The plaintiff had claimed a sum of Rs. 5,047-14-0. The learned Subordinate Judge has made a decree for Rs. 2,913-8-0. The defendants have preferred this appeal. Before proceeding any further we may point out here that the learned Counsel for the appellants on the authority of the ruling reported in Swan Tee v. Ma Ngwe (1916) 32 IC 630, contended before us that one cosharer could not sue another for use and occupation of property held by them as tenants-in-common. We find that the two learned Judges of the Burma Chief Court in the above mentioned case held that 'a suit for use and occupation by a co-owner against another co-owner will not lie.' We find ourselves unable to agree with this view when so broadly stated. We see no valid ground for holding that a co-owner cannot sue another co-owner for use and occupation when the former has been ousted and has been excluded from the enjoyment of his share in the property held by them as tenants-in-common. It is the right of each and every co-owner to enjoy the property in common with other co-owners and as soon as that right is denied or a co-owner is prevented from enjoying the property like other co-owners, he has a cause of action for recovering compensation for use and occupation of his share from which he was excluded. Another ruling cited by the learned Counsel for the appellants is the one reported in Jagar Nath Singh v. Jai Nath Singh (1904) 27 All 88. The learned Counsel for the appellants relies on the following observation in the judgment of Stanley, C.J., at p. 90:
It appears to me that if cosharers desire to sue a cosharer who is in occupation of joint property and who has not obtained possession illegally, the only course open to them is to apply for and obtain partition.
4. It was argued by the learned Counsel for the appellants that so long as there is no partition, a co-owner cannot sue another for the use and occupation of the joint property. In our opinion, the rule cited above lays down no such proposition, because after the above quoted sentence we find the following
It is true that the cosharer in possession must account to the other cosharers for the profits of the land of which he is in exclusive physical possession.
5. So long as the partition does not take place, we think the cosharer in exclusive possession is liable to account for profits to the other cosharers. The facts of the case in the above quoted ruling of the Allahabad High Court were different. There on the death of a tenant of a land which was the property of four persons jointly, one of the cosharers took possession of the tenant's holding and commenced to cultivate it himself. The remaining cosharers sued to recover physical possession. The Court held that the only relief which the plaintiffs could get was a declaration that they were joint owners and entitled to ask the cosharers in possession to account for profits. The Court found that it was not a case in which one cosharer has taken 'illegally' the possession of some land to the exclusion of the other. In the case before us however the facts are different. If the plaintiff could establish that he was prevented from the use of his one-third share by the. defendants, then his ouster would be an 'illegal' act on the part of the defendants which would entitle him to claim compensation. Another case on which reliance was placed on behalf of the appellant is Basanta Kumari Dasya v. Mohesh Chandra (1913) 21 IC 621. That case in our opinion, does not help the appellants. It was held that
sole occupation of different parcels of land by different cosharers according to their convenience does not constitute ouster of the others and that 'ouster' must mean dispossession of one-cosharer by another where a hostile title was set up by the latter, and whore the occupation of the latter is not consistent with joint ownership.
6. It is clear that this ruling would not apply to a case where a cosharer could show that he has been ousted from, the enjoyment of a house by another cosharer. In such a case the occupation of a cosharer in possession would not be consistent with 'joint ownership.' After a consideration of the ruling cited above, by the learned Counsel for the appellants, we are of opinion that the contention that a co-owner cannot sue another co-owner for compensation for use and occupation of property held by them as tenants-in common even if he is excluded from the enjoyment of his share is not correct and cannot be accepted. We hold that a cosharer who is ousted and excluded from the enjoyment of his share in the property held by him and others as tenants-in-common is entitled to maintain a suit for use and occupation of his share from which he has been excluded by other cosharers. Nor do we agree with the argument that one cosharer cannot sue another for his shares for the profits in the property which one of them might have realized and that his only remedy is to sue for partition. If two cosharers own a house and one of them realize its entire rent, there does not seem to be any reason as to why the one realizing the entire rent should not be compelled to pay the share of the other. We would like to add however that the case of cosharers holding various parcels in joint zamindari held by them as tenants-in-common for the sake of convenience would stand on a different footing. Where different cosharers have without force or fraud, been in peaceful and exclusive possession of different portions of joint properties for a time sufficient to raise the inference that their separate possessions originated in some mutual understanding that arrangement cannot be disturbed either by a suit for joint possession or one for compensation for use and occupation. In such a case the only remedy left would be a suit for partition. (The rest of the judgment is not material for the report).