1. In this case the plaintiff sued the 1st defendant, here appellant, to recover the half share of property alienated to the latter by a widow, whose husband's reversioners plaintiff and 2nd defendant are; 3 to 5 defendants are 2nd defendant's legal representatives. The lower appellate court's judgment is concerned with the validity of this alienation; and the 1st defendant has not disputed the correctness of its conclusion in plaintiff's favour before us. The appeal therefore so far as it relates to plaintiff's claim must be dismissed with costs as between him and 1st defendant.
2. As between 1st defendant and 3 to 5 defendants the facts are that, although the suit was brought in ejectment by plaintiff as a co-owner and 2nd defendant made no attempt to disclaim his position as a defendant, he offered in his written statement to pay the necessary court-fee in case a decree should be given him for his share, proposing apparently to follow the procedure, which is undoubtedly open to a defendant in a suit for partition of joint property; and the question is whether this procedure is open to a tenant in common, when his co-tenant has sued for possession of the common property or a part of it.
3. Before however dealing with this question, we refer to another argument that he took this course without objection being made to bis doing so at any stage of the litigation, that it may now be too late for his legal representatives to sue separately and that they should not be prejudiced by 1st defendant's acquiescence with the possibility that they may suffer, if 1st defendant's contention is allowed now. We are not impressed by this argument. It was open to 2nd defendant to have himself made a plaintiff and pay duty on his claim in the ordinary way. He chose at his own risk to adopt a procedure, which enabled him to postpone payment of duty, until he could tell whether it, would be worth while to pay it; and, if he was wrong in supposing that the benefit of that procedure was open to him, he risked and his legal representatives must take the consequences. But in fact 1st defendant did not acquiesce in his conduct. The suit was first tried before one District Munsif and afterwards on remand by another; and at each trial a distinct issue as to 1st defendant's right to recover was framed and decided; and, although the grounds of appeal to the lower appellate court are badly worded, we are not prepared to hold that Nos. 4 and 19 did not raise 1st defendant's present contention.
4. On the merits 3 to 5 defendants rely on the analogy of the procedure in suits for partition and ascertainment and possession of a share in joint or cpmmon property, in which relief was sought against an alienee thereof and the fact, recognised in Raghuraj Singh v. Bishen Tiwari (1916) 37 I.C. 884 that a suit is maintainable by one co-owner on behalf of all against a trespasser, the inference suggested being that all suits by one co-owner, whether for the whole or of his share in the property in question must be regarded as so brought and as terminable by a decree in favour of any or all of those, on behalf of whom the plaintiff is regarded as suing. This is unsustainable. For it neglects the distinction drawn in Hikmat Ali v. Wali-un-nissa I.L.R. (1889) All. 506 between suits, in which the plaintiff (as here) only claims his share and those, in which a comprehensive partition between him and his joint owners or co-owners is asked and in which he desires to obtain a joint declaration by which all interested in the property can benefit. Dost Muhammad Khan v. Said Began I.L.R. (1897) All. 81 and Assan v. Pathuma I.L.R. (1899) M. 49 In Somasundara Mudali v. Kulandavelu Pillai I.L.R. (1904) Mad. 457 the plaintiffs, although they purported to sue on behalf of the co-owners, were not regarded as doing so; and the conclusion was that a co-owner defendant could not take advantage of the decision as res judicata. The fact that the defendant then in question was ex parte makes no difference to the principle involved, since it was held sufficient that in the suit, as framed, for the plaintiff's share he could not have been joined as a co-plaintiff, and, it may be added, he did not in order to be so joined obtain an amendment in respect of the additional share he claimed. When, as in the present case, the plaintiff sues for his own share alone and not as representing co-owners, nothing regarding the latters ' shares is or can legitimately be decided. The right of a defendant to execution of a decree, which does not grant him relief explicitly, has. been recognised only in certain well defined cases, of which this has not been shown to be one. Tricomdas Gooverji Bhaja v. Gopinatha Jiu Thakur I.L.R. (1916) Cal. 759 is relied on; but in it the defendant concerned had asked to be made a plaintiff and the High Court in appeal merely gave him the decree, which would have been given at the trial if this prayer had not been erroneously disregarded. In these circumstances we hold that 3 to 5 defendants were entitled to no decree in the present case.
5. The result is that the appeal is allowed to the extent that the decree, so far as it is in favour of 3 to 5 defendants is set aside, but that it is confirmed in other respects. 1st defendant will pay the plaintiff's costs in this Court. The District Munsif gave no costs to 3 to 5 defendants and the lower appellate court gave costs only to 4th defendant, who alone of them appeared before it. 3 to 5 defendants will pay half of 1st defendant's costs here and in the lower appellate court.