1. This appeal arises out of a suit for possession of plot No. 96 according to the old numbering and 130 according to the new numbering in the village of Senuapur in the Gotakhpur District. The facts found by the Court below are that the land was occupied up to 1308 Fasli by a tenant. In that year the tenant left the land, and the plaintiff's father, and after him the plaintiff took actual recession of it as khud-kasht and remained in possession till 1316 Fasli, In 1317 Fasli the plaintiff handed ever possession to the defendant in lieu of the interest on a loan advanced by the defendant to the plaintiff. In Fasli 1321 the plaintiffs re-paid the loan and got back actual possession of the plot from the defendant. In 1322 the defendant ousted, the plaintiff again and took possession of the plot. The suit was contested in the Co-arts below on grounds of fact which have been found against the defendant. In this Court the defence put forward is based on the fact that in the year 1322 Fasli the defendant acquired a share in the village. It is said, therefore, that the most the plaintiff can obtain is a decree for joint possession. I have been referred to three rulings. The first is the well-known ruling in Jagar Nath Ojha v. Ramphal 13 Ind. Cas. 79 : 34 A. 150 : 8 A.L.J. 1312 which first established the principle that a co-sharer deprived of possession could get a decree for joint possession and not merely a decree declaring his right. The plaintiff laid stress on the words in the head-note 'whether the plaintiff was originally in joint possession or whether he had never been in possession.' These words must be read with the facts of the case. There the plaintiff had been entitled to joint possession by operation of law as a reversioner. The fact that he had never actually taken possession did not deprive him of his right to obtain joint possession.
2.The second case referred to is that of Bisheshar Singh v. Hanuman Singh 63 Ind. Cas. 802 : 19 A.L.J. 780 : 3 U.P.L.R. (A.) 143 : 44 A.1 : (1922) A.I.R. (A) 314 which merely reiterated the same principle in a case in which the parties had been jointly in actual cultivatory possession of certain joint land.
3. The third case, that of Sarbjit Singh v. Raj Kumar Rai 63 Ind. Cas. 806 : 19 A.L.J. 783 : 3 U.P.L.R. (A.) 146 : 44 A. 5 : (1922) A.I.R. (A) 162, is actually against the appellant. It lays down that no co-sharer who has been in physical or actual possession of any part of joint land is liable to be ejected by any of the other co-sharers except by means of a partition lawfully obtained.
4. This is exactly what the Court below has found here. The plaintiff was in sole actual physical possession of the plot in suit. He has been ousted therefrom by the defendant. He is certainly entitled to be restored to the actual possession which he had before and not merely to joint possession with the defendant.
5. It is further argued on the basis of the last mentioned case that no decree for damages should have been given. The facts of the case were, however, distinguishable in that in the ruling in Sarbjit Singh v. Raj Kumar Rai 63 Ind. Cas. 806 : 19 A.L.J. 783 : 3 U.P.L.R. (A.) 146 : 44 A. 5 : (1922) A.I.R. (A) 162 the land was the joint khud-kasht of the parties. In this case the finding is that it was the sole khud-kasht of the plaintiff who has been deprived of the enjoyment of the land by his dispossession The appeal, therefore, fails and I dismiss it with costs including fees on the higher scale.