1. This is a second appeal which could never have come into Court is the plaintiffs had been definitely held to their own pleadings, as they certainly ought to have been It appears that in the village in suit there was a certain area of Waste land, appertaining to a sahamilta putti the proprietary rights in which Vested jointly in twenty or more co-sharers One on these determined to bring a number of plots of this waste land under cultivation; but instead of occupying them himself he granted a perpetual lease of the same up two lessees. About a year and a quaver later the lessees finding that their right were being questioned induced seven more of the co-sharers in the patti to grant them another perpetual lease The, present suit was brought by two Co-sharers (subsequently joined by three others) who were dissatisfied with this arrangement They impleaded as defendants the two lessees the lessors and all the remaining co-sharers who had not joined in the suit. The principal relief sought was a declaration that the two leases above referred to are improper, null and void and are not fit to be enforced There was an alternative prayer for a decree for joint possession in favour of the plaintiffs and all the co-sharer defendants if for any reasion the passing of a declaratory decree be not thought proper by the Court.
2. The suit was effectively contested by the lessees defendants alone They set up a plea which has been found to be unsustainable alleging a complete partition of the waste lands amongst the co sharers They neglected to set up any alternative case in the event of the Court's holding that the lessors-defendants had exceeded their rights in granting leases in perpetuity and it seems to me that this was directly due to the frame of the plaint in which the prayer for joint possession by actual ejectment of the lessees' was preferred in the alternative only and not as a relief consequential on the declaration of the invalidity of the leases.
3. The fourth issue fixed by the Trial Court was to what relief if any are the plaintiffs entitled The Court found the plaintiffs entitled to the declaration sought for and framed its decree accordingly. Incidentally it remarked that the actual ejectment of the lessees defendants could only be carried out by the Revenue Court.
4. The latter appealed and tried to raise the plea that the entire suit as framed was not cognizable by the Civil Court this plea was repelled and their appeal dismissed The plaintiffs also appealed They very coolly alleged that their own prayer for relief by way of a simple declaration was barred by Section 42 of the Specific Relief Act and new prayed for joint possession by actual ejectment of the lessees-defendants in addition to the declaration already granted and not by way of alternative
5. The learned Subordinate judge devoted almost the whole of his judgment to the appeal of the lessees he disposed of the plaintiffs appeal in a few lines quoting authority for the proposition that the ejectment of the lessees could not be ordered in a suit like the present but neglecting to point out that the prayer for ejectment had only been preferred in the plaint as an alternative In the event of the Court's holding that a mere suit for a declaration would not lie.
6. In appeal to this Court the plaintiffs rely mainly on the case of Jagar Nath Ojha v. Ramphal 13 Ind. Cas. 79 : 34 A. 150 : 8 A.L.J. 1312. There were no lessees concerned in that case and no question arose as to the existence of an agricultural tenancy I should not myself have ordered the actual ejectment of the lessees defendants because I do not regard them as mere trespassers but I do not think this is a proper case for a general examination of the question of the right of one co-sharer in joint lands to appropriate to his personal use a portion of the area constructively in the possession of all the joint owners where they are none of them making any particular use of it In this Litigation such questions could only arise in the event of the Courts holding that the plaintiffs were not entitled to a mere declaration without consequential relief this contingency has not arisen and the plaintiffs cannot complain of the fact I dismiss their appeal with costs.