1. This is a plaintiff's appeal arising out of a suit for declaration of title and in the alternative for a decree for joint possession to the extent of a two-thirds share in plot No. 939.
2. The plaintiff's allegations in the plaint were that this plot appertained to a 3-pie share which had belonged to the plaintiff under some sort of a private partition and a one-third share which had been subsequently sold to the defendant, that Kuber dhobi was the occupancy tenant of this plot and that he left the village and vacated the land. After he had gone away both the plaintiff and the defendant took joint possession of it and had shown crops in it in the Kharif of 1329 F. and that the defendant had without the plaintiff's knowledge got his name alone entered in the patwari's papers on the strength of which he has Since been denying the Plaintiff's title.
3. There were a number of pleas taken in the written statement one of which was that the s'it was not cognizable by the Civil Court at all. The Court of first instance found that Kuber dhobi had not surrendered the field to the defendant alone but that he had simply left the village and after he had left the parties began to cultivate it jointly and the defendant has been cultivating it for only three or four years. The Court of first instance granted the plaintiff a decree for joint possession. On appeal the learned District Judge, without disagreeing with any of the findings of fact arrived at by the Court of first instance, came to the conclusion that the suit was not maintainable in the Civil Court at all. He has accordingly dismissed the suit without going into the merits.
4. In my opinion the view taken by the learned Additional District Judge was entirely erroneous. When a land occupied by a tenant is given up by him it enures for the benefit of all the co-sharers entitled to it. There can, therefore, be no doubt that if the allegations contained in the plaint are correct then the plaintiff and the defendant became jointly entitled to this field in the proportion of 2: 1. The First Court also found that after the tenant had left the village both the parties began to cultivate it jointly which finding implies that the joint cultivation continued for some length of time. If that finding is correct then subsequent dispossession of the plaintiff by the defendant would entitle the plaintiff to maintain a suit for recovery of joint possession in the Civil Court. It is not at all incumbent on the plaintiff to have recourse to the Reveuue Court. There is no law which restricts his right to a claim for a share in the profits only. He is entitled to obtain joint possession of the land which is the joint property of the parties. As was pointed out by the learned Munsif it was not a case where by some sort of an arrangement between the co-sharers each had been in separate possession of a plot of land for a length of time which separate possession could not be disturbed until an actual partition took place. I am, therefore, of opinion that the suit as brought was certainly maintainable in. the Civil Court and was cognizable by it. The preliminary ground oh which it has been thrown out cannot be sustained. The case of Ram Charan Rai v. Kauleshar Rai 27 A. 153 : A.W.N. (1904) 199 is no authority for paying that a suit of this kind is not maintainable in a Civil Court. On the other hand, it clearly laid down that the dispossessed co-owners were entitled to a decree that they should be restored to joint possession of the joint property. The questions of fact raised by the defendant in the appeal before the learned District Judge have not been gone into. I allow this appeal, set aside the decree of the lower Appellate Court and remand the case for disposal according to law. The plaintiff will be entitled to the costs of this appeal including fees on the higher scale.