1. This second appeal comes before us on a reference by Chaturvrdi J., who has referred the following questions for the decision of the Full Bench :
'(1) Under the circumstances of the case, can this suit for joint possession be decreed?
(2) After coming into force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No. 1 of 1951), can the suit land be considered to be the 'homefarm' of the plaintiff as well as of the defendants within the ambit of the decision of the Full Bench in Rahmatulla Khan v. Mahabirsingh, 1956 Nag LJ 1: (AIR 1956 Nag 132) (A)?'
2. The facts of the case are as follows. The defendants are the appellants, against whom a decree for joint possession subject to payment of Rs. 22-8-0 by the plaintiff has been passed in respect of field No. 153/1, area 0.77 acre, which they brought under cultivation from waste land. The plaintiff as co-sharer seeks his share of the field and claims joint possession. The field is situated in patti No. 5 of mouza Janwani, tahsil and district Durg, in which patti the plaintiff has a -/12/- and the defendant -/4/- share. The field in question was brought under cultivation after breaking up the waste land, and the finding of the Court below is that Rs. 30/- were spent by the defendant in improving and reclaiming it.
3. The first question has been referred because the learned referring Judge felt that thers was a contradiction between the decision in Mahadeo v. Laxrnan S. A. No. 184 of 1949, D/-14-10-1954 (B) and Numan Singh v. Gurudeo, Kumari, 1942 Nag LJ 207 (C), which was based upon other Division Bench cases. The learned referring Judge has also referred in paragraph 5 to several other cases of this Court in which a view contrary to that taken in Second Apppeal No. 164 of 1949 (B) is to be found.
4. The question whether a co-sharer is entitled to joint possession or not arises in a variety of cases. The leading cases of the Privy Council denying joint possession are to be found reported in Watson & Co. v. Ramchund Dutt, ILR 18 Cal 10 (D) and Lachmewar Singh v. Manowar Hossein, ILR 19 Cal 253 (E). These cases have been explained in Ram Mohan Pal v. Sheikh, Kachu, ILR 32 Cal 386 (FB) (F), Mahesh Narain v. Nowbat Pathak, ILR 32 Cal 837 (G) and Surendra Narain Sinha v. Hari, Mohan Misser, ILR 33 Cal 1201 (H). Ordinarily, every co-owner is entitled to joint possession of the property so owned with the other co-owners. This is based upon the rule of law that no co-owner can be said to be in exclusive possession of any portion of the jointly-owned property till partition and all co-owners must be regarded as owning and possessing every portion of the joint property. There are cases however, in which the Courts have declined to give joint possession on considerations of equity. These considerations are referred to in the latter three Calcutta cases above cited.
In the Nagpur High Court, joint possession, was ordinarily decreed where lands were surrendered and/or a lambardar acting for the proprietary body had acquired some lands from tenants. This was also applied to co-sharers taking surrenders of lands which they claimed to hold in exclusive possession, An exception, however, has been made in some cases in India in respect of lands which have been brought under cultivation by co-tenant after spending some money on such acquisition, on the principle that the beneficial enjoyment of the co-owner is not to bo disturbed at the instance of one who has not spent time and labour for such acquisition and reclamations. The principle of their Lordships' decision in Watson and Co. v. Ramchund Dutt (D) (cit. sup.) is also the same.
5. Every case will have to be decided on its own facts and in the light of the circumstances obtaining there. No hard and fast rule can adequately be laid down in respect of such cases. It is obvious enough that in cases where only an amount is paid and surrender of land has been obtained, the equity can easily be adjusted by granting joint possession on payment of the proportionate share of the co-sharer claiming such joint possession. In cases, however, where expenditure of time, money and labour is involved, it is difficult to lay down the proposition that joint possession should always be granted.
The Courts in such cases take the equities into account, look to the total area of the land open to others for bringing land under cultivation, the proportion of the waste land to the land actually brought under cultivation, with advertence to the share held by the defendant and the time and labour involved in such reclamations. The Courts also consider whether there is evidence of delay on the part of the plaintiff in coming to Court. These principles really rest upon the equitable doctrine that delay defeats equity, and that where the equities are equal, the first in time is stronger in right.
6. Applying these principles to the present case, it is obvious that the plaintiff in the present case has considerably delayed his suit. According to him, he made demands in 1946 and 1947, and though he was refused joint possession in 1946, he waited till 14-3-1949, to bring the present action. In our opinion, there is considerable delay as also acquiescence on the part of the plaintiff. Again, it was admitted before us that the plaintiff has himself brought more than 4 acres of waste land under his own exclusive cultivation
Looking to the area of waste land available in this village, it is obvious that the defendants, who own -/4-/- share, have not brought more land than their share justifies, under their own cultivation, and triat proportionately the plaintiff has brought a greater area under his cultivation than his share justifies. The finding of the Court below also is that some amount was spent by the defendants in reclaiming this land, though the amount has been found somewhat arbitrarily and might even be more than what the finding lays down.
7. In view of oil these circumstances, we think that the plaintiff is not entitled to joint possession of the disputed land and the decree for joint possession should be discharged and the plaintiff's suit ordered to be dismissed. In doing so in a second appeal we follow the decision of their Lordships of the Privy Council in Lachmeswar Singh v. Manowar Hosseim (E) (cit. sup) where an inference from proved facts as to whether joint possession was justified or not was considered to be open in a second appeal. We accordingly allow the appeal and dismiss the plaintiff's suit with costs throughout.
8. In view of our decision, on the first question under which the whole of the appeal referred to us succeeds, there is no need to give an answer to the second question.