N.S. Misra, J.
1. Plaintiff has appealed against the reversing judgment and decree of the learned District Judge of Mayurbhanj in a suit for title and ejectment of defendants.
2. Plaintiff claimed that one Dukhu Mahant had three sons -- Chammu, Mangal and Eahuram. Mangal and Bahu-ram died issueless. Chammu's widow is the third defendant. Chammu had also two sons being Chhotua and Mithua. Mithua's daughter is the plaintiff, Chhotua's daughter Ankali left her village and has remained unheard of for more than a decade prior to suit. After the death of Chhotua and Mithua, their respective widows remarried. The third defendant re-married. Jainath, father of the 1st defendant, was born to her through the marriage. Dukhu had 5.49 acres of land as .ancestral property and Chhotua had added one acre of Nayabadi land. On the death of Dukhu, Chhotua and Mithua were enjoying the entire 6.49 acres of land and after them, plaintiff came to possess the said property. Defendant No. 1 taking advantage of the helpless position of the plaintiff, without any right, title or interest in the disputed property got himself mutated in the Revenue records in respect of the disputed property and alienated the same in favour of the second defendant who trespassed into the property, forcibly harvested the paddy raised by the plaintiff and started disputing the plaintiff's title. The suit has, therefore, been filed for declaration of title and recovery of possession.
3. The third defendant supported the plaintiff. Defendants 1 and 2 in a joint statement claimed that the suit was barred by limitation; Jainath was not the illegitimate son of Sambari; Ankali being alive, without her the suit could not proceed; after the death of Chhotua and Mithua, Jainath came to succeed to the property and had full title to convey in favour of the second defendant.
4. The courts below have concurrently found that defendant No. 1 had no right, title and interest in the disputed property and his possession, therefore, is that of a rank trespasser. They have not accepted the plea of adverse possession and consequent acquisition of title. The trial court gave a decree to the plaintiff on a finding that plaintiff had title in the property and defendant as a trespasser was liable to be turned out of the. property. It further found that non-joinder of Ankali as a party did not affect the suit. The lower appellate Court while accepting all the other findings came to hold :--
'The other question is if the plaintiff has to be non-suited because Ankali, daughter of Chhotua, is not a party in the suit. The trial court has repelled this contention on two grounds: (1) that the plaintiff as co-owner can evict the de-fendants who are trespassers and (2) the evidence shows that Mithu died subsequent to Chhotua in joint status and so the plaintiff would be the heir of the last surviving coparcener. It is true that a co-owner can maintain a suit for possession to evict a trespasser, but that principle would not apply to a suit where one of the co-owners, as in the in-etant case, prays for exclusive declaration of title to the exclusion of the other co-owner. The plaintiff alleges that An-kali is unheard of which is not a fact and thus wants to exclude her. Therefore, when Ankali is a co-owner of the plaintiff, the plaintiff cannot be declared to be the sole owner of the suit properties. The other reasoning that the plaintiff is the sole owner because her father Mithua was the last surviving coparcener cannot be maintained as no such case has been made out in the plaint. A suit cannot be defeated in the absence of a necessary party if an effective decree can be passed. In the instant case an effective decree cannot be passed declaring the plaintiff's title to the suit properties in the absence of Ankali the other co-owner whom the plaintiff wants to exclude falsely on the ground that she is unheard of. It is, however, pointed out that 'at the appellate stage notice has been served on Ankali. This is because defendant No, 3 who was respondent No. 2 died during pendency of the appeal and Ankali has been brought on record as legal representative. This would make little difference because the plaintiff did not choose to amend the plaint and the prayer for exclusive declaration of title still remains. In the circumstances, disagreeing with the trial court, I hold that Ankali is a necessary party to the suit and the plaintiff cannot maintain the suit without implead-ing her and for her own benefit.'
5. Mr. S. Mohanty for the appellant contends that even if the plaintiff had asked for exclusive title when the court on adjudication comes to hold that plaintiff is a co-owner with Ankali and defendants are rank trespassers, it was open to the court to declare joint title of plaintiff and Ankali and decree the suit for ejectment of the trespassers. He relies on the principle embodied in Order 7, Rule 7 of the Civil P. C. in support of such a stand. On the other hand, Mr. R. Mohanty, counsel for the contesting defendants relies on a Bench decision of this Court in the case of Gour Charan Das v. Atal Behari Ray, AIR 1951 Ori359, and contends that without Ankali plaintiff would not be entitled to relief. Speaking for the Division Bench of the Court, Jagannadhadas, J., as he then was, stated (at p. 362 para 9):--
'Learned counsel for the appellant (sic) argues that in this view, he, as a co-sharer, though he may not have acquired the right which defendants 1 & 2 had, under Section 26 (2), would still be entitled to get a decree in ejectment against them. In support of this position, he relies on the cases in Ahmad Sahib v. Magnesite Syndicate Ltd., AIR 1915 Mad 1214; Maganlal Pulabhdas v. Bhudar Purshottam, AIR 1927 Bom 192, Currim-bhoy & Co. Ltd. v. L, A. Creet, AIR 1930 Cal 113 and Sambhu Gosain v. Piyari Mian, AIR 1941 Pat 351. While no doubt these cases show that one co-sharer can maintain ejectment as against a trespasser, without impleading the other co-sharers, they also show that he can do so only, for the benefit of the entire group of co-sharers. This is made clear in AIR 1927 Bom 192 at p. 195, where their Lordships say as follows:
'It may be pointed out, however, though it should hardly be necessary to do so, that the plaintiff could get possession in the suit, not only for himself alone, but really for the benefit of the co-owners.'
In such a suit by one co-sharer for ejectment, it would be open to the defen-. dant-trespasser to show that he is in possession with the consent of the other co-owner. If he shows the same, the plaintiff co-owner will be entitled to get a decree in ejectment only to the extent of his own share and will be entitled only to joint possession. This was clearly laid down in Hira Lal v. Bhairon, (1883) ILR 5 All 602, Radha Proshad v. E-suf, (1881) ILR 7 Cal 414 and Harendra Narain v. Moran, (1888) ILR 15 Cal 40. Such possession, however, to the extent of his own share, he can get only in a properly constituted suit. The plaintiff has either to file a suit in ejectment of the defendants, from entirety of the suit lands but for the benefit of the whole body of co-sharers, or in the alternative a suit for ejectment from his own share and for joint possession along with the defaulter defendants. The suit as filed and as appears from the plaint, is on the footing that the plaintiff has acquired the right under Section 26 (2) to khas possession of the suit lands, by his purchase, it is not a suit for possessioneither foe the benefit of the entire body of co-sharers or one for joint possession with defendants t and 2 to the extent of his own share. It would, therefore, be unfair to the defendants to give a decree in ejectment in favour of plaintiff on a footing different from what the plaint has asked for and on a title and cause of action which is different depriv-ing the defendants of the defence which they may have in a properly constituted suit.
To the facts of the present case, the ratio in the reported decision can have no application. The defendants in that Suit had some interest in the property. In the present suit, the defendants have been found concurrently to be trespassers. The Court was not prepared to give the plaintiff a decree because in its opinion, it would be unfair to the defendants and in fact would deprive an appropriate defence which could have been raised if plaintiff of that suit had claimed relief together with others. It is a settled position in law that a trespasser cannot compete with a title holder and a suit would not fail merely on account of non-joinder unless non-joinder affects the maintainability of the action. It is true -that the plaintiff wanted full title and it has now been found that plaintiff is only a co-owner and the other share in the property vests in Ankali. Ankali has already been brought on record. Plaintiff had claimed exclusive title not by denying title in Ankali but by say-ing that Ankali was unheard of. If the court found that Ankali is in existence and, therefore, is entitled to half of the suit property, there was no difficulty in law in giving a decree to the plaintiff for ejectment of the trespasser-defendants on the footing that she is only a co-owner and would be entitled to the property along with Ankali each having a moiety share. Between plaintiff who holds title and the defendants who are cank trespassers the court is bound to protect the owner. I would accordingly allow the appeal, set aside the decree of the lower appellate court and decree the plaintiff's suit with the following modification. The joint title of plaintiff and Ankali in the disputed property is declared. Plaintiff is entitled to a decree for ejecting the defendants who are trespassers but the possession of the plaintiff shall enure to the benefit of the said co-owner Ankali and both shall have joint possession of the disputed property. In the facts of the case, it is appropriateto direct both [parties to bear their own costs of the litigation at all stages.