G.G. Sohani, J.
1. This is defendants' 2nd appeal arising out of a suit for possession of certain parcel of agricultural land situated at village Rasawa, Tehsil Kuk-shi. The plaintiffs' case in brief was that the suit land had fallen to the share of the plaintiffs in a partition effected between them and the other members of their joint family that the suit filed by the defendants for declaration of their rights in the suit land as occupancy tenants was dismissed and that the dismissal of the suit was upheld by the High Court in Civil Second Appeal No. 262 of 1967 decided on 22-9-1970. The plaintiffs. therefore contended that the defendants were in illegal possession of the suit land and they therefore claimed possession of the suit land from the defendants. The suit was resisted by the defendants inter alia on the ground that the suit was bad for non-joinder of necessary parties. It was contended by the defendants that other co-sharers who were recorded as 'Bhumiswamis' of the suit land were not made parties to the suit and hence the suit deserved to be dismissed for nonjoinder of necessary parties. Based on this plea a preliminary issue was framed. The trial court held that the case of the plaintiffs was that they had acquired title if the suit land by virtue of a partition effected between the plaintiffs and other co-sharers that the suit instituted by the plaintiffs was not for declaration of their title to the suit land but was for recovery of possession from the defendants who were alleged to be trespassers. The trial court therefore held that other co-sharers wore not necessary parties and the suit was not liable to be dismissed for their non-joinder. On merits the trial court held that the defendants were trespassers and liable to be evicted from the suit land. In this view of the matter the trial court decreed the plaintiffs' suit. On appeal the judgment and decree passed by the trial court were upheld. Hence the defendants have filed this second appeal
2. The only question raised in this second appeal by Shri Sanghi learned counsel for the appellants was that the Courts below had erred in not dismissing the suit on the ground of non-joinder of necessary parties. It was urged that the partition alleged to have been effected by the plaintiffs between themselves and other co-sharers was not valid as it was contrary to the provisions of the Land Revenue and Tenancy Act then in force and that failure to implead other co-sharers by the plaintiffs was fatal to the suit. Reliance was placed on the decision of the Supreme Court reported in Kanakarathanammal v. V. S. Loganath Mudaliar, AIR 1965 SC 27l and in As-wini Kumar Roy v. Kshitish Chandra Sen Gupta, AIR 1971 Cal 252. In reply Shri Chaphekar learned counsel for the respondents contended that the suit land had fallen to the shares of the plaintiffs in a partition effected between them and the other co-sharers and that in any event a suit filed by some co-owners against a trespasser for eviction nonjoinder of other co-owners was not fatal to the suit. Reliance was placed on a decision oi' the Mysore High Court in Shivangouda Lingangouda v. Gangawwa Basappa, AlR 3967. Mys 143 and in Ram Niranjan Das v. Loknath Mandal, AIR 1970 Pat 1 (FB).
3. The short question that arises for consideration in this appeal is whether the plaintiffs' suit can be held to be non-maintainable for non-joinder of necessary parties. It was not disputed before me that in the suit instituted by the defendants against the plaintiffs and their brothers it was held by this Court in Civil Second Appeal No. 262 of 1967 that the defendants were trespassers and had not acquired any right, title to or interest in the suit land. The plaintiffs who are admittedly recorded as 'Bhumiswamis of the suit land along with their brothers have instituted the present suit against the defendants who are admittedly trespassers for possession of the suit land. The plaintiffs alleged that in a partition effected between them and their brothers the suit land had fallen to-their share. It; was urged that this private partition was not in accordance with the provisions of the Land Revenue and Tenancy Act then in force. Even assuming that the partition was not valid as urged on behali of the defendants the question for consideration is whether a- suit filed by some of the co-owners against a trespasser for eviction is liable to be dismissed for nonjoinder 'of other co-owners. In AIR 1970 Pat 1 (supra) a Full Bench of the patna High Court had occasion to consider, this question. It was held, after referring to a number of decisions that all those decisions unambiguously laid down that a suit' by a co-sharer was competent if he sired for recovery of possession of Jand which was owned by him jointly with others even without impleading the other co-sharers. It was further observed as follows :
'It is well settled that merely a possessory title when confronted with a better title will yield place to the better title which must prevail over a trespasser's possessory title pure and simple. A co-sharer having an interest in a property jointly with others is apparently a person with a better title than a trespasser. Following this principle there is no reason why his suit should not be decreed. It is relevant also to consider in this connection that it is a well settled principle of law that one of the various co-owners of a property is in possession will be deemed to be in possession on behalf of all the co-owners and it is for this reason that his possession in law therefore is not regarded as adverse to other co-owners unless there is distinct proof of ouster. In that view of the matter also the interest of an undivided co-owner or to-sharer must be taken to cover every inch of land which may be the subject matter of dispute as belonging to the co-owners and hence it is clear that there is no support for Mr. Kailash Eai's contention either in principle or in authority as to why a co-sharer's suit cannot be held to be maintainable without im-pleading other co-sharers and why it should not be decreed in respect of the entire interest of the co-owners which of course however will not affect the rights of other co-owners vis-a-vis successful plaintiff in a suit against a trespasser.'
I respectfully agree with the aforesaid observations.
4. The learned counsel for the appellants however contended that the aforesaid decision of the Patna High Court cannot be held to lay down correct law in view of the decision of the Supreme Court in AIR 19.65 SC 271 (supra). It was contended that the Supreme Court had laid down as observed by the Calcutta High Court in AIR 1971 Cal 252 (supra) that a suit instituted by a co-owner against a trespasser without im-pleading other co-owners was not maintainable. It is therefore necessary to turn to the decision of the Supreme Court in AIR 1965 SC 271 (supra). In that case the plaintiff put forward her claim to certain properties as the sole heir of her mother contending that she was entitled to those properties exclusively. One of the contentions raised on behalf of the defendants was that even if the properties in question belonged to the plaintiff's mother, she would hot be entitled to claim exclusive title to them because by succession the said properties would devolve upon the plaintiff and her brothers and the plaintiff's failure to join her brothers in the suit rendered the suit income patent. The Supreme Court held that the plaintiff's brothers were co-heirs with her in respect of the properties left interstate by their mother. In this context the Susupreme Court observed that 'the suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents.' It is thus clear that in AIR 1965 SC 271 (supra) the plaintiff while repudiating the title of other co-heirs claimed exclusive title in herself. It was not a simple suit for eviction against a trespasser. It was in these circumstances that the Supreme Court held that the suit was not maintainable. This decision of the Supreme Court is an authority for the proposition that when the frame of the suit is such that it partakes of the character of partition then all the co-owners would be necessary parties. A suit for recovery of possession of land from a trespasser which does not affect the rights of other co-owners if any cannot be held to be incompetent. The decision of' the Supreme Court in AIR 1965 SC 271 (supra) was construed by Hegde, J. (as he then was) in AlR 1967 Mys 143 (supra) who observed as follows:
'If the' decisions to which I made le-ference earlier lay down the law correctly then in a suit of the type which we are: concermed in this' case the- plaintiffs sisters are not necessary parties to the suit, they are only proper- parties to the suit as those decisions have laid down that one co-owner alone can bring a suit for ejecting a trespasser from the property owned by him or her' along with Others. I am unable to agree with Mr. Deshpande that the Supreme Court has taken a contrary view of the law on the subject.' In the case before the Supreme Court as seen earlier the plaintiff claimed that she was exclusively entitled to the suit property. She repudiated the right of the other co-sharers.' The Supreme Court understood her claim as being that so far as the properties in that suit are concerned she was alone entitled to the same and that her brothers have no right in them. Such a contention could not be upheld in the absence of the other co-sharers. That is why it was observed in the course of the judgment;
'The present suit filed by the appellant partakes of the character of a suit for partition.'
The suit did not purport to be one for the benefit of all the cosharers. That being the position it was not possible for the court' to decide the- plaintiffs claim.
I am unable to read the above decision as overruling the numerous decisions to which I have made reterence earlier, either specifically or even by implication.'
It is true that the decision in AIR 1967 Mys 143 was not approved in AlR 1971 Cal 252 (supra) relied on by the learned counsel for the appellants but in the Calcutta case the plaintiffs had prayed for declaration of their title to the suit property. That apart agreeing with the decision in AIR 1967 Mys 143 (supra) I hold that the decision in AIR 1965 SC 271 (supra) is distinguishable on facts and the present suit instituted by the plaintiffs which is not for declaration of their exclusive title to the suit land but for eviction of a trespasser from the suit land cannot he held to be not maintainable as urged on behalf of the appellants. In M. Palaniswamy Gounder v. Nachimuthu Goundcr, (1977) 2 Mad LJ 131, it has been held that a suit could be filed by a co-owner against a trespasser and it is not necessary that in such a case all the co-owners must join together or must be impleaded. In my opinion therefore the contention urged on behalf of the appellants that the plaintiffs' suit must be held to be incompetent for non-joinder of necessary parties cannot be upheld.
5. No other point was urged.
6. The appeal therefore fails and is accordingly dismissed with costs. Counsel's fees according to scale if certified.