1. This is a plaintiff's appeal. The suit was for joint possession over certain plots of land belonging to the defendants and the plaintiffs jointly. Other reliefs were prayed for, but these were not granted and do not form the subject of the present appeal. The First Court granted the plaintiffs a decree for joint possession, but the lower Appellate Court, while holding in the plaintiffs favour that they were entitled as joint owners, granted a decree for joint possession in respect of certain plots only. In respect of others it found that the defendants had been in possession for a long time and held that it would, therefore, be improper to give actual joint possession to the plaintiffs. It accordingly modified the decree of the lower Court in respect of these plots.
2. The learned Advocate for the appellants relies on a ruling of this Court in Jagarnath Ojha v. Ram Phal 13 Ind. Cas. 79 : 34 A. 150 : 8 A.L.J. 1312 in which it was held that a plaintiff who is entitled to possession jointly with other persons can be granted a decree for joint possession whether the plaintiff was originally in joint possession and was subsequently dispossessed or whether he had never been in possession. It is pleaded that all that the appellants want is to be allowed to execute their decree as provided in Order XXI, Rule 35(2) by delivery of symbolical possession, and that the result of the lower Appellate Court's refusal to grant them a decree will be that if they apply for partition or for profits, these will be denied to them.
3. On the other side it is contended that, this suit is no more than an ingenious method of depriving the respondents of their khudkasht rights. They do not deny the appellants' joint proprietary title in the land but maintain that their proper remedy, if the respondents are in possession of more than their proportionate share, was to apply for partition or bring a suit for profits. If the present appeal is allowed it will result in the loss by the respondents of a part of the khudkasht rights which they have acquired by long cultivating possession of the plots in suit.
4. The learned District Judge based his decision on two cases, 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) 319 and Sarbjit Singh v. Rajkumar 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. In both these cases, however, decrees for joint possession were granted.
5. In their plaint the plaintiffs made a number of allegations which have been found to be untrue, claiming that they themselves had been in possession of the disputed plots but had been ousted by the respondents. Both the Courts below have concurred in finding that this was not the case. In Jagarnath Ojha v. Ram Phal 13 Ind. Cas. 79 : 34 A. 150 : 8 A.L.J. 1312 the Court though it held that a person who was entitled to joint possession but had not obtained such possession might get a decree for joint possession, remarked that there may indeed be cases in which the Court may not deem it reasonable in the interests of all the parties concerned to make a decree for joint possession, and was careful to say that the circumstances of the case before it were such as to entitle the plaintiff to a decree. I am unable to see that any such circumstances exist in the present case. In all of the three cases which have been referred to the plaintiffs were driven to come into Court by the conduct of the defendants. In the present case the plaintiffs could have found an equally satisfactory remedy by adopting the more normal procedure of suing either for profits or partition. The plaintiffs run no risk of suffering any loss by the order passed by the Court below. Their proprietary title remains unaffected and their rights to share-in profits are unaltered. No adequate reason has been shown for granting them a decree for joint possession in plots which have, for many years past, been cultivated by the defendants alone. The appeal fails and is dismissed with costs, including in this Court costs on the higher scale.