S.P. Mohapatra, J.
1. This appeal has been filed by the plaintiff against the confirming judgment dated 12-8-1953 of the First Additional Subordinate Judge of Cuttack arising out of a suit for ejectment. The plaintiff's case is that .03 acres of the disputed land appertains to Current Settlement plot No. 417 in Khuta No. 493 which is a chandana holding, that the disputed plot belonged to one Karuna Bai who died leaving as her heir a daughter of Chandramoni alias Chandi; and the plaintiff claims title on the basis of a Kabala registered on 30-9-1946 which was for a consideration of Rs. 100/- and executed by the said Chandramoni. According to the plaintiff, defendants 1 to 7 were tenants-at-will in respect of the disputed plot and after service of notice and several demands as they did not vacate the suit land the plaintiff has brought the action on the basis that defendants 1 to 7 are mere trespassers, and as such are liable to be evicted.
2. Defendants 1 to 7 in their joint written statement contend to the effect that the father of defendants 1 to 3 purchased the disputed land in auction sale on 22-3-1926 in execution of a decree and took delivery of possession on 20-12-1926. Their further case is that there was some mis-understanding as between defendants 1 to 3 and defendants 4 to 7 (who are the first cousins of the father of defendants 1 to 3) and the well-wishers of the family persuaded defendants 4 to 7 to give the suit lands to defts. 1 to 3; but defendant No. 4 not having agreed, defendants 1 to 3 and 5 to 7 executed a sham transaction in respect of the disputed land on 21-9-1946 in favour of their relations delendants 8 and 9 only with a view to put pressure on defendant No. 4. Subsequently, however, defendants 4 to 7 executed a sale-deed on 13-11-1946 for a consideration of Rs. 200/- in respect of the disputed land in favour of defendant No. 1 who happens to be the eldest brother of the other two brothers (defendants 2 and 3). They further allege in the written statement that the plaintiff is only one of the cosharers and that one Panchai has joint interest in the disputed land and therefore the plaintiff's suit for ejectment is to fail on that ground also.
3. Both the Courts below have concurrently found that the transaction executed in favour of defendants 8 and 9 was a sham transaction and no right, title or interest passed on the basis of this transaction in their favour. This finding is final and is not controverted before us.
4. There is another finding which has been accepted by the learned counsel, appealing on behalf of the plaintiff-appellant, Mr. Mohanty, that the present appellant Asgar Ali is only a cosnarer with Pancnei who also has interest in the suit property. Mr. M. Mohanty very clearly asserts tnat if any decree is granted in favour of the present plaintiff it must be on behalf of both the cosharers and must enure to the benefit of both of them.
5. The learned lower appellate Court, however, has dismissed the plaintiff's appeal, & as a matter of tnat, tne plaintiff's suit finding that tne plaintiff not having acquired exclusive title to the property in dispute by virtue of his purchase from Chandramoni alone, who had only an undivided interest in the disputed plot, the present suit in ejectment is not maintainable and therefore is bound to fail. The proposition has been too widely and boldly stated. The judgment having been based upon this finding is vitiated in law, there being no specific finding as to the position of defendants 1 to 7, whether they are mere trespassers or they are tenants. There is no doubt over the position of law that if a suit in ejectment is brought by one of the landlords against the tenants, it is bound to fail as not being maintainable as the entire body of the landlords is not represented. The proposition relied upon by the learned lower appellate Court holds good only in respect of a suit brought by landlord as against tenants in ejectment. Mr. Mohanty, appearing on behalf of the appellant, has accepted the position as incontrovertible in view of the several decisions that if really it is found that defendants 1 to 7 are still tenants, the plaintiff being one of the cosharers only, he cannot maintain the suit. We do not therefore discuss this accepted position any further.
6. But we must make it absolutely clear that if defendants 1 to 7 are found to be mere trespassers, the proposition relied upon by the learned lower appellate Court that the suit is not maintainable does not apply and the judgment therefore is bad in law. As this position was controverted by Mr. Rule Mohanty, the learned counsel for the respondents, we propose to deal with this position of law as to whether the plaintiff being a cosharer can still maintain the suit in ejectment as against the trespassers. In our view, it is practically well settled and accepted by almost all the High Courts in India that so far as trespassers are concerned one of the cosharers can maintain a suit in ejectment. It appears clear that the cosharer is interested in every inch of the land as a cosharer jointly along with the others and he has got the right to resist any encroachment on the joint land and to enforce such right in a Court of law as against trespassers to evict them. It must be made clear that a decree obtained by a cosharer in such a suit must be on behalf of all the cosnarers and must necessarily enure to the benefit of all. Each co-sharer, in my view, owes a duty to the other cosharers to protect not only his own interest but the interest of the entire body of the cosharers as against the third party trespassers.
7. We will begin by a reference to a decision reported in Ahmed Sahib v. Magnessite Syndicate Ltd. ILR 39 Mad 501: (AIR 1915 Mad 1214) (A). This judgment of Seshagiri Aiyar & Ku-maraswami Sastriyar JJ. has been treated practically as the leading case on the subject and has been followed in most of the subsequent decisions of different High Courts. Here the District Judge held that the suit by one of the co-sharers as against a trespasser was not maintainable. Their Lordships observed:
'We are unable to agree with the District Judge. Although there is a difference of opinion regarding the right of one of the tenants-in-common to eject the lessee from the lessed premises, there is no doubt that as against a trespasser, any one of the co-owners can maintain an action.'
Their Lordships have referred to several previous decisions on the subject. Here also the other co-sharer was not a party to the suit.
In the case of Bashir Ahmad v. Parshotam, AIR 1929 Oudh 337 (B), the proposition was taken as a settled law that one cosharer could maintain a suit in ejectment as against the entire body of the trespassers. It was observed that a suit brought by one cosharer would, in law, be considered for the benefit of the other cosharers and the other cosharers would be perfectly at liberty to take advantage of the decree which would enure to their benefit as well.
Sulaiman, Ag. C. J. and Bajpai, J. in the case reported in Sheotahal Dube v. Lal Narayan Prasad, AIR 1931 All 695 (1) (C), reiterated the same principle while making an observation :
'A cosharer has a joint interest in all the entire plots, and his a right to eject a trespasser who is holding them without any right and title. We think that for this purpose of ejecting a trespasser from such plots it is not necessary that all the coshares should join in the suit.'
This is also the view of the Bombay High Court as expressed in the case of Tuljaram v. Haikisan, AIR 1929 Bom 244 (D).
In the case of Sambhu Gosain v. Pyari Mian, AIR 1941 Pat. 351 (E), Agarwala, J. followed the case reported in ILR 39 Mad 501 : AIR 1915 Mad 1214) (A), and Maganlal Dulabhadas v. Budhar Purushottam, AIR 1927 Bom 192 (F), in expressing the view that one of several co-owners is entitled to maintain an action in ejectment against a trespasser without joining the other co-owners as parties to the action.
8. We should make it clear at this stage that if a deiendant in a suit in ejectment claims some interest in the property in suit on the basis of some privity, agreement with the other co-sharer, or a lease granted by the other cosharer, the plaintiff will be entitled to claim joint possession along with the defendant clearly for the reason that the deft, while he is a trespasser so far as his interest is concerned is not a mere trespasser out and out in respect of the entire plot as he claims through another cosharer, and. as such, the defendant is entitled to be treated as a joint cosharer.
This is supported by another series of decisions which we need not now quote here. It would be sufficient for our purpose if we quote here a decision of our High Court reported in Gour Charan v. Atal Behari, AIR 1951 Orissa 359 (G). Their, Lordships Jag. nnadhadas and Panigrahi, JJ. while following the views of the different High Courts as discussed above by us, observed:
'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.'
Their Lordships further observed:
'In such suit by one cosharer for ejectment, it would be open to the defendant trespasser to show that he is in possession with the consent of the other co-owner. If he shows the same, the plf1-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.'
9. Mr. R. Mohanty, appearing on behalf of the respondents, in support of his contention that if at all a decree can be passed in favour of the present plaintiff it must be for joint possession along with the present defend nts and not for exclusive possession as prayed for, relies upon a Bench decision of the Patna High Court reported in Ram Ranbijaya Prasad v. Ramjivan Ram, AIR 1942 Pat 397 (H). It appears from the judgment that the defendant who was sought to be ejected from the suit land by the plaintiff had already obtained the consent of another co-sharer. Relying upon the decision of the Calcutta High Court their Lordships held:
'One of several co-sharers of ijmali property may partially eject a person who has intruded upon such property against his will, but with the consent of another co-sharer, by obtaining a. decree for possession of his share jointly with the intruder.'
This position is in accord with a series of decisions on the point that if indeed the defendant claims right to the property by virtue of any lease by the other co-sharer, the plaintiff will be entitled only to joint possession and not exclusive possession, because the defendant as of right may be entitled to possession on behalf of the other co-sharer from whom he has obtained his right to joint possession. But if the defendant is an out and out trespasser, there is no reason to hold that the plaintiff will be entitled to joint possession and he will work out his right in a suit for partition. The Plaintiff is not bound to recognise a complete trespasser having no right, title or interest in the property as his co-sharer.
10. Mr. Rule Mohanty further relies upon a decision of a Single Judge reported in Naresh Chandra v. Hayder Sheikh AIR 1929 Cal 28 (I). It was held by Mitter, J. that where a person, who is entitled to a lesser share in a land, brings a suit ior ejecting a trespasser, he cannot get a decree for possession of the whole of the land, but is entitled to recover possession only to the extent of his share although he can retain possession of the whole of the joint property as against a trespasser. This decision is based on a single foreign decision of the year 1851 reported in Doe Hellyer v. King (1851) 6 Ex 791 (J). The learned Judge has completely overlooked the long series of decisions of the Indian High Courts on the subject wherein it was decided that a co-sharer for the benefit of all the co-sharers could maintain a suit for exclusive possession as against a trepasser without even making the other co-sharers parties to the suit. Even that single decision relied upon by Mitter, J. was of a majority of 2:1. Baron Platt, J. took the view:
'Now a tenant in common is the owner of the whole estate in common with his co-tenants; therefore as soon as he hss proved his right to the possession in common with others and that the defendant having no such right is a wrongdoer as against him, he is, in my opinion, entitled to a general verdict for the purpose of recovering possession of the whole.'
In any view this being contrary to the long series of decisions of the Indian High Courts, with great respect, we attach no importance.
11. The last decision on the point cited by Mr. R. Mohanty is the case of Abdul Kabir v. Jsmila Khatoon, AIR 1951 Pat 315 (K). It is to be observed Ramaswami, J. relied upon a aforesaid decision in AIR 1929 Cal 28 (I). We may note, in this judgment there is a wrong quotation to the effect that the judgment of the Calcutta High Court was by Rankin, C. J. while we get it from the decision itself it was of Mitter, J. We are not able to follow this decision of the Patna High Court for the same reason and particularly for the reason that the views of the different High Courts on the subject, as discussed in our judgment in the earlier Pages, have been accepted by a Bench decision of this Court reported in AIR 1951 Orissa 359 (G).
12. A point was raised by Mr. R. Mohanty that the plaintiff has no title to the property as it is not proved that Chandanadari rights are transferable by custom. In our opinion, this plea is not available to him as it was never pleaded in the written statement and the plaintiff was not given an opportunity to adduce evidence on the point. On the contrary, as it appears from the judgment of the lower appellate Court, the case was fought out on the basis that Chandanadari rights are transferable by custom. This question, therefore, will not be opened again.
13. But on the proposition of law that we have laid down in this judgment, it is not possible to dispose of the case finally as there is no finding of the lower appellate Court as to the real status of the defendants whether they are trespassers or tenants. We would, therefore, remand the case to the lower appellate Court to come to a definite finding on the evidence already on record as to whether this is a suit for ejectment of tenants or mere trespassers. If he comes to the finding that it is a suit for ejectment of tenants, the suit must fail as not maintainable by one of the co-sharer-landlords; but if he confes to the definite conclusion that the defendants 1 to 7 are mere trespassers, the suit must succeed and cannot be thrown off as not being maintainable. But the decree of the lower appellate Court must make it clear that it will enure for the benefit of the other co-sharer, Panchei. But nevertheless the plaintiff in execution of the decree will be entitled to evict the defendants from the suit land.
14. The appeal is, therefore, allowed, the decrees of the Courts below are set aside and the case is remanded to the lower appellate Court who will dispose of the case in accordance with law bearing in mind the directions given above and giving the parties full opportunity of arguing the matter on the evidence on record. Costs will abide the result.
P.V.B. Rao, J.
15. I agree.