1. This is a Letters Patent appeal by the defendants under the following circumstances : The plaintiffs, two co-sharers, brought a suit against the two defendants alleging that the plaintiffs were co-sharers of a share of 14 annas odd in a certain village and, that the plaintiffs and other co-sharers possessed a certain No. 101 which was. pond land and that the defendants had no concern with it; that in Asarh 1333F in spite of the remonstrances of the servants of the plaintiffs the defendants without any right forcibly ploughed the entire plot and did not allow it to be cultivated on behalf of the plaintiffs, and since 1333F the defendants had been sowing crops in this number. The suit was brought three years later on 17th January 1929, the possession having been taken by the defendants in July 1926. The plaint set out the area of the plot as 2 bighas 19 3/4 dhurs. The plaint claimed possession of this area from the defendants in favour of the plaintiffs and Rs. 205-5-6 damages as mesne profits. The suit was against the defendants as trespassers. The written statement of the defendants was that they had been all along in possession as tenants of the plot in question on payment of an annual rent of Rs. 5 to the zamindar.
2. A plea was also taken that the Civil Court did not have jurisdiction. The suit was filed in the Court of the Munsif. The Munsif remitted an issue to the Revenue Court for determination as to whether the defendants were tenants of the plots in suit. The Revenue Court found that the defendants were not tenants of the plot in suit. The Munsif therefore granted a decree for possession and for the amount of damages claimed Rs. 205 odd. The defendants appealed and the lower appellate Court found that the village is divided into two mahals, one called Mahal Sadho Saran Singh and the other called Mahal Tewa Singh; that the land in question No. 101 lies as regards one biswa area No. 101/1 in Mahal Sadho Saran Singh in which the plaintiffs have a 14 annas odd share, but that the defendants were not in possession of this one biswa; that the remainder of the number was No. 101/2, which has the area given in the plaint of 2 bighas 19 384 dhurs, and it was in the possession of the defendants and lies in Mahal Tewa Singh, and in this mahal the plaintiffs have only a very small share of 7 pies 13 kant 3 jao. Further the Court found that the plea of the defendants was correct that they had been put in possession in July 1926 by Bhagwan Singh, who was a co-sharer in Mahal Tewa Singh, and that they had been paying rent to Bhagwan Singh since that date. The lower appellate Court therefore found that the defendants were tenants and not trespassers and dismissed the suit against them. The learned Single Judge of this Court who heard the second appeal has allowed the appeal of the plaintiffs and has restored the decree of the trial Court.
3. A considerable amount of argument has been made in regard to various rulings where one co-sharer puts a tenant in possession and other co-sharers sue. In Panchanan Banerji v. Anant Prasad Pande 1932 All 457, it was held by a Bench of this Court that where all the co-sharers bring a suit in the Civil Court against a tenant who has been put in possession by one co-sharer that person has not become a statutory tenant as he has not been admitted to tenancy by all the three co-sharers, and that the mere fact that one of the co-sharers had granted a lease to the defendant did not prevent the other co-sharers from ejecting him. That case differed in material points from the present case. In the first place the plaintiffs did not make the other co-sharers parties to this suit. We consider that in a suit of this nature Bhagwan Singh, who is found to have put the defendants in possession of this plot, is a person who should have been made a party. If the plaintiffs were not aware that Bhagwan Singh had put the defendants in possession then when the written statement contained the plea that the defendants had been all along in possession as tenants of the zamindars, the plaintiffs should have asked the Court to ascertain under Order 10, Rule 1 or Rule 2 from the defendants which zamindar had put them in possession, and the plaintiffs should have asked for leave to amend their plaint by making that zamindar a party. In the second place the plaintiffs brought their plaint on the assumption that the land in suit lay in the mahal in which they had a 14 annas share. That assumption has misled the Revenue Court and the defendants have been prejudiced in the matter.
4. Moreover the plaintiffs came to Court on the allegation that the defendants had forcibly ploughed the plot in question and had prevented the plaintiffs from cultivating it. The lower appellate Court has not come to a finding on this point in favour of the plaintiffs. On the contrary the finding is that the defendants were put in possession by Bhagwan Singh, a co-sharer. Moreover the plaint admits that the land in question was pond land. The patwari who is a witness for the plaintiffs states that the land became cultivated for the first time in 1333F, i.e., when the defendants cultivated it at the instance of Bhagwan Singh. The case therefore differs from other cases in which one co-sharer has put, a tenant in possession of land which was previously held by a tenant who was the tenant of all the co-sharers. In the present case the land was uncultivated and was lying vacant. It was open to Bhagwan Singh as a co-sharer to cultivate this land himself in which case it would become his khudkasht and there would be nothing illegal in his action. The burden of proof lay on the plaintiffs to show that under the particular customs of this mahal it was not open to Bhagwan Singh to put a tenant in possession of this vacant land and let that tenant cultivate the land. The plaintiffs have failed to show that the possession of the defendants was in any way illegal. The defendants appear to be tenants as the lower appellate Court has found them and not to be trespassers.
5. We may note that certain rulings to which reference has been made, Basdeo Narain v. Muhammad Yusuf 1928 All 617 and Tapesar Singh v. Chhabi Ahir 1933 All 631, are cases where the manager of a joint Hindu family put a person in possession as a tenant and it was held that other members of the family could not sue to eject the defendant in the Civil Court. These cases in our opinion have no bearing on the present case. In Bholanath v. M. Buskin (1894) A.W.N. 127 a Bench of this Count consisting of the learned Sir John Edge, C.J., and the late Bannerji, J., held that one co-sharer could not sue for possession and for mesne profits against the lessee of another co-sharer and that the said lessee was not a trespasser. This view was followed in Aminullah v. Hajira (1906) 3 A.L.J. 767. It is no doubt a fact that under Section 194 of Act 2 of 1901, where there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on behalf of them all. But in the present case by misleading the Revenue Court into considering that the suit was in regard to a plot in the mahal Sadho Saran Singh the Revenue Court was prevented from going into the question as to whether Bhagwan Singh, who was a co-sharer in the other Mahal Tewa Singh had any such authorization as required by this section.
6. Under the circumstances of this case we consider that the plaintiffs have failed to make out their case. In regard to the decree for Rs. 205 mesne profits we would point out that even if any mesne profits were due it would be absurd to give the plaintiffs, who are co-sharers of the minute share of 7 pies odd in the mahal of 16 annas, the whole total of the value of the crop. The value of a crop is the result of not only the use of the land, but also of the seeds supplied by the person who cultivates and the labour of cultivation and irrigation and harvesting. the actual selling value of a crop is in no way a measure of mesne profits. Nor if the plaintiffs had cultivated could their profits be measured in such a manner. They will have to take the necessary expenditure of producing the crop from the price at which they sold it. The actual rent of the holding in question is merely Rs. 5 per annum, and for three years the amount is Rs. 15 and the infinitesimally small share of the plaintiffs would be a few annas. For these reasons we allow this Letters Patent appeal with costs and we restore the decree of the lower appellate Court dismissing the suit of the plaintiffs and we grant costs to the defendants throughout.