1. The facts of this case are that one Jobraj Rai sold part of his share in a village to the predecessor of the plaintiff in 1875 and sold the remainder of the share to the defendants in 1881.
2. Jobraj Rai became ex-proprietary tenant of 12 bighas odd which included the three plots now in suit. Jobraj Rai relinquished his holding in favour of the predecesssor of the plaintiff, and it is on the strength of that relinquishment that the plaintiff has now sued for exclusive possession of the three plots.
3. According to the decision of this Court, Jobraj Rai was tenant of all the proprietors, and the relinquishment of his ex-proprietary holding by him enured for the benefit of all the co-sharers. The plaintiff is certainly not entitled to proprietary rights in the land to the exclusion of the defendants. The plaintiff and the defendants are co-sharers of the land and the question is whether the plaintiff is entitled to a decree for joint possession with the defendants. One of the reasons given by the lower Appellate Court for refusing to give him such a decree is that he has never been in possession. This is not a sufficient reason. See the recent decision of this Court in Jagan Nath Ojha v. Ram Phal 8 A.L.J. 1312 : 13 Ind. Cas. 79 : 34 A. 150. The circumstances must be considered, It has been found that the defendants have been in undisturbed possession of two of the plots for over twelve years and of the third since 1904. In these circumstances, I agree with the Courts below that the plaintiff is not entitled to a decree for joint possession with the defendants. He must be content with getting his share of the profits of the plots on a settlement of accounts of the profits of the estate of which the plots form part. The appeal is dismissed with costs.