Venkataramana Rao, J.
1. These appeals arise out of suits in ejectment instituted by the plaintiff for recovery of possession of various items of properties comprised in the schedules to the plaints. The parties to the suit are governed by Muhammadan Law and their relationship appears from the following genealogical table.
Kunhamad|_________________________________________________________________| | | | | | |Moideen Mamavu Avulla Biyathu- Umacha Periyaya Aminamarried married married mma chiAmina Pathuma Uppannu| || || ____________| | || Kunhamad Umacha| Kutti|____________________________________________________________| | | | | |Kunhi Pa- Ummayya Biyathumma Periyayachi Ammad (Plf.) Moothanthumma|___________________________________| |Pokker (Dead) Ammad (Dead)| |1st Deft. 12th Deft.
2. All the suits were tried together and the evidence appears to have been taken in O.S. No. 261 of 1927 out of which S.A. No. 1862 of 1931 arises. It will appear from the above genealogy that defendants 1 and 12 therein are the son and daughter of one Pokker, the nephew of the plaintiff. They were also the main contesting defendants in the other suits. It is common ground that the properfies in suit belonged either to one Kunhamad the original ancestor or Amina the mother of the plaintiff. It is also common ground that in 1038 there was a partition between the sons and daughters of Kunhamad in and by which the sons together took certain properties and the daughters together took other properties. Subsequent to the said partition, the rights of Avulla, one of the sons, were purchased by the other two brothers Moideen and Mamavu. Again in 1050 or 1051 there was a partition between the descendants of Moideen represented by the plaintiff and Kunhamad Kutti as representing Mamavu's descendants and in that partition the plaintiff as representing Moidin's branch obtained the suit properties and other properties. It is the case of the plaintiff that ever since the date of the said partition in 1050 he has been in exclusive possession, and enjoyment of the properties adversely to the rights of the descendants of his nephew Pokker and other heirs of Moidin excepting his younger brother Moothan and the children of his sister Biyathumma and that therefore he has acquired title thereto by adverse possession and that the children of his nephew Pokker have no manner of right thereto, and that on the 6th April 1927 they trespassed into the suit property and forcibly took away certain cocoanuts and jack fruits. The plaintiff therefore seeks to recover damages and possession on the basis of the title so set up by him in the plaint.
3. O.S. No. 261 of 1927 comprises two items. In.regard to item 2 the defendants gave up their claim but in regard to item 1 their case is that the property was the stridhanam property of their grandmother Pathumma and that she had always been in possession and enjoyment thereof. In regard to the items in the other suits, the main defence was that these properties being joint properties got by descent, were not the exclusive properties of the plaintiff, that he did not acquire any title to them by adverse possession and that he was never in exclusive possession thereof but that they were allotted to the defendants as and by way of maintenance and that it was not open to the plaintiff to seek to recover possession of the same. In regard to item 1, the learned District Munsif negatived the claim as to stridhanam but found that the plaintiff was never in possession of the same and that his right to possession must be negatived. This was affirmed by the learned District Judge.
4. In regard to the items in the other three suits both the courts have concurrently found that the plaintiff's claim to title by adverse possession cannot be sustained. The learned District Munsif gave a decree for possession without assigning any reasons. The learned District Judge reversed his decision and dismissed the plaintiff's suit. It is contended by Mr. Govinda Menon that as it has been found by both the learned Judges that the plaintiff was in possession of these properties and the defendants dispossessed him, he is entitled to recover exclusive possession snd even if he is not right in this contention, the plaintiff will at least be entitled to a decree for joint possssion. He relies very strongly on the decisions in Mani Mohan Pal v. Gourchandra Das I.L.R. (1933) 60 Cal. 1212 and Bisheshar Singh v. Hanuman Singh I.L.R. (1921) 44 All. 1. In Mani Mohan Pal v. Gourchandra Das I.L.R. (1933) 60 Cal. 1212 there is the following observation:
Whereas each co-owner has access to and control over everjr part of the property, and so may be said to have possession in the sense of detention of the whole, yet he exercises that control not on behalf of himself alone, but partly on behalf of himself in respect of his own share and partly as representative of his co-owner. A co-owner in sole possession for a length of time can in this view of the matter (the italics are mine) maintain his exclusive possession even against his other co-owners till partition.
5. In Bisheshar Singh v. Hanuman Singh I.L.R.(1921) 44 All. 1 the learned judges observed:
Where a person has been in possession of a piece of joint land for a long time without any let or hindrance by the other co-sharers, or where he has been so in possession jointly with some other co-sharers, he is entitled to continue in possession till a partition is effected.
6. The claim in both these cases was based on and the relief given consistent with the title on which the plaintiff claimed. It was on the basis of his title as co-owner. There can be no question that a tenant in common is entitled to possession of every parcel of the common property and to be even in exclusive possession of a portion of the property, enjoy the same to his best advantage and is not liable to be evicted therefrom by his co-tenant because sole occupation of a part does not necessarily imply ouster. Vide Midnapore Zamindary v. Naresh Narayan Roy (1924) 47 M.L.J. 23 : L.R. 51 IndAp 293 : I.L.R. 51 Cal. 631 . A co-tenant may lawfully enjoy even the whole of the common property so long as he does not do any act which amounts to an ouster of his co-tenant, Balvantrav Oze v. Ganpalrav Jadhav I.L.R. (1883) 7 Bom. 336. But it is not open to a tenant in common to claim exclusive possession of the whole and no action can be maintained for such exclusive possession or for sole enjoyment of the profits thereof even though another tenant in common dispossesses him of the same.
7. Again if the tenant in common is by virtue of an arrangement with the co-owners or with their consent express or implied in possession of the whole or any part, it will not be open to the other co-tenants to disturb him from possession of the same and if he is dispossessed, the Court will certainly restore him to possession. Their remedy is by way of a suit for partition, vide Durga Sankar Sarma Roy v. Kamini Kumar Sarma Roy I.L.R. (1927) 55 Cal. 653. If a tenant in common attempts to occupy the common property by seeking to oust another tenant in common, it may be open to the latter to sue and recover joint possession. But a tenant in common setting up a hostile title to the whole or part of the common property and seeking exclusive possession thereof against another tenant' in common who has dispossessed him of the same is not entitled to exclusive possession or even necessarily to joint possession, if he fails to substantiate his claim. In Ekabbar Ali Shah v. Sahikh Kon Ali : AIR1925Cal272 a suit was brought by a co-owner claiming sole title to the property, alleging that he was dispossessed by the defendants. It was proved in the case that the sole title on which the plaintiff relied could not be sustained and that the plaintiff was only a co-owner with the defendants and some others. Thereupon the plaintiff asked that he might be given joint possession but this relief was negatived. Mukerji, J., observed:
As the plaintiffs themselves dispute the share which was found in favour of their lessor, and they claim exclusive possession and not joint possession and claim it on the footing that their lessor was entitled to the 16 annas share in the land and was in exclusive possession thereof, the plaintiffs are not entitled to any relief in this suit.
8. I would apply the same principle in this case and refuse any relief to the plaintiff. It will be seen from the plaint that the claim is based solely on exclusive title and in negation of the title of the defendants. Nowhere is the claim made on the basis of the plaintiff being a tenant in common with the defendants and no claim for joint possession was sought and he is not entitled therefore to the equitable relief which he seeks.
9. The, cases relied on by Mr. Govinda Menon are distinguishable. In Makhanlal v. Moti Ram 112 I.C. 520 A.I.R. 1928 Lah. 429 there is a dictum I of Tekchand, J., namely, that if a plaintiff comes into Court I claiming to be exclusive owner of certain property but he is I found to be a joint owner with the defendant, the Courts should proeeed to decide the case on the basis of joint owner-w ship. But it does not follow from this observation that the plaintiff must necessarily be given a decree for joint possession. The subject matter of the dispute which Tekchand, J., was dealing with was a party-wall and the question was whether relief could be given on the basis of exclusive ownership or on the basis of joint ownership of the party-wall. It has no application to the facts of this case. The other cases relied on, namely Ram Harakh Pandey v. Chunni Singh A.I.R. 1923 All. 446 : 71 I.C. 649, Durga Charan Acharjee v. Khundkar Enamal Huq (1917) 45 I.C. 705 or Biswanath Missir v. Ram Prasad Tewari I.L.R. (1931) 10 Pat. 572 are distinguishable on one or other of the principles above stated by me. The decision in Ram Harakh Pandey v. Chunni Singh A.I.R. 1923 All. 446 : 71 I.C. 649 is based on the following finding, namely, that it was the sole Khudkast of the plaintiff and that he had been deprived of the enjoyment of the land by dispossession of the defendant. The case in Durga Sankar Sarma Roy v. Kamini Kumar Sarma Roy I.L.R. (1927) 55 Cal. 653 does not help Mr. Govinda Menon. The plaintiff does not seek his relief on the basis of any of the grounds according to which relief either for sole or joint possession can be given to a tenant in' common. As the learned Subordinate Judge has observed:
If the plaintiff brings a proper suit admitting the claims of the other co-sharers and claiming exclusive possession for himself for reasons which he may put forward, it will have then to be considered whether he is entitled to recover possession as a co-sharer on the strength of those allegations.
10. He may get exclusive possession or joint possession as the case may be and if he is so advised he can bring a suit for partition. I am unable to give him relief in this case because there are other persons than the plaintiff and children of Pokker who are interested in the suit property, and there are other properties still possessed by parties as tenants in common and equities may have to be adjusted in a properly framed suit. I am therefore of the opinion that the decision of the learned Subordinate Judge is right.
11. S.A. Nos. 1859 to 1862 therefore fail. So far as S.A. No. 1862 is concerned, I dismiss the same with costs. In the other appeals, the parties will bear their own costs throughout.