Lancelot Sanderson, C.J.
1. In this case in my judgment this appeal should be allowed.
2. The action was brought by the plaintiffs claiming a declaration of their title to, 5/6th share in a certain property and also claiming that on the declaration of that title the plaintiffs should be admitted to joint possession with their co-sharers, and they also claimed mesne profits.
3. In the first Court the suit was dismissed altogether. In the second Court the plaintiffs obtained a decree for a declaration of their title and for joint possession with their co-sharers who are defendants Nos. 18 and 19. Defendants Nos. 18 and 19 appealed.
4. Mr. Justice Mullick upheld the decree so far as it concerned the title, but held that the plaintiffs were not entitled to joint possession with their co-sharers. The issues in the case were:
First: Is the suit barred by limitation? Seconds--Is the suit bad for defect of parties?
Third: Is the suit bad for misjoinder of parties and causes of action?
Fourth: Does the land in suit appertain to Mauza Mukshadpur and Zemindary No. 5557?
Fifth: What relief, if any, are the plaintiffs entitled to?
Sixth: Have the plaintiffs their alleged right to the lands in suit?
5. In the Court of first instance, one of the material points in dispute between the parties was as to whether the land in dispute belonged to Zemindari No. 5557 or to Estate No. 2540, the defendants alleging that they admitted that the plaintiffs were entitled to 5/6th share in Zemindary No. 5557, and. that they, the defendants, were entitled to 1/6th share in that zemindary. But they also alleged that the land in question did not belong to No. 5557 at all but belonged to No. 2540. Their case was that the owner of Estate No. 2540 grafted to these defendants Nos. 18 and 19 a lease by reason of which they settled the land with the tenants in the year 1896, so that the defendants were alleging that the plaintiffs had no interest whatsoever in the land in question but that, on the contrary, the land belonged to the owner of Estate No. 2540 and that they wore tenants of the land.
6. The questions stated by the learned Judge of the first Court of Appeal were in substance the same as what, they were in the first Court but they were stated rather differently. The first issue was whether the plaintiffs' claim was barred by limitation. The second was whether the disputed land was within the plaintiffs' zemindary in Mauza Mukshadpur and whether the defendants had the alleged right. That right is one which I have just now referred to, namely, the right of lessees under the owner of No. 2540. The third issue was whether the plaintiffs were entitled to get hhas possession and wasilat.
7. Now the learned Judge of the first Appellate Court held that the land in question was part of Estate No. 5557 as the plaintiffs alleged, and thereby decided that point against the defendants. He also held that the case was not barred by limitation.
8. Then, when the case came to the High Court, the1 defendants Nos. 18 and 19 shifted their ground. They realized that they must now approach the case from the point of view that the land in question was part of No. 5557, although all along they, the defendants, had asserted that it belonged to No. 2540 and they urged that inasmuch as they, the defendants Nos. 18 and 19, were co-sharer with the plaintiffs in that Estate No. 5557, and they had been in occupation thereof, they could not be deprived of possession, placing reliance upon the cases which have been referred to in the course of Mr. Justice Mullick's judgment., The first of these cases was Watson and Co. v. Ram Chund Dutt 18 C. 10 : 17 I.A. 110 (P.C.) the second was Lachmeswar Singh v. Manowar Hossein 19 C. 253 : I.A. 48 (P.C.) and the third was Mohesh Narain v. Nawbut Pathak 1 C.L.J. 437 : 32 C. 837 in which Mr. Justice Harington and my learned brother Mr. Justice Mookerjee gave the decision. In my judgment, none of those cases covers this case. The defendants Nos. 18 and 19 asserted all along that their right to the land in question depended upon the title of a third person, namely, the owner of Estate No. 2540, and that they were, in possession of the land under that person. They disputed the plaintiffs' allegation that this land was part of the zemindary of which the plaintiffs and the defendants were co-sharers, and consequently this case does not come within the decision of Watson & Co.'s case 18 C. 10 : 17 I.A. 110 (P.C.), which is the basis of all these cases, for this reason. In that case the land was held by the persons in common, one of whom was in actual occupation of part, cultivating it as if it had been his separate property. The other co-sharer attempted to enter on the land. The co-sharer in occupation resisted and it was held that as the resistance was made for the object of protecting himself in the profitable use of the land in good husbandry and not in denial of the other's title, such resistance was no ground for proceedings on the part of the other to obtain a decree for joint possession. In this case, defendants Nos. 18 and 19, although as a matter of fact it turns out now that they were co-sharers of the land in question, had in fact all along been setting up the interest of a third party, and were denying the title of the plaintiffs. For this reason I think that this case in no way comes within the decision in Watson & Co.'s case 18 C. 10 : 17 I.A. 110 (P.C.). The passage is the subsequent case Lackmeswar Singh v. Manowar Hossein 19 C. 253 : I.A. 48 (P.C.) which was read at my request by Ms. Dtvarka Nath Mitter, shows that that decision was based upon the reason that although the co-sharer had set up the ferry and at one time had disputed the right of his co-sharers to have anything whatever to do with it, it was held that, although he had taken up that position, he did not interfere with the plaintiffs', the co-sharers' possession o the river and he, in fact, did not exclude any co-sharers. In the present case the defendants did exclude the co-sharers. Through their tenants they occupied the land not as co-sharers, but, as already pointed out, setting up the title of a third party and denying the plaintiffs' title and by so doing they excluded the co-sharers, the plaintiffs. For these reasons the cases to which I have referred do not cover this case. The learned Judge, I think with great respect to him, was misled when he thought, there was any similarity between the facts of this case and those of the above-mentioned cases.
9. With regard to the last point which was urged by Dr. Dwarka Nath Mitter, namely, that this case should be remitted to the Court of first instance, in order that an issue should be tried between the plaintiffs and the defendants treating them both as co-sharers, and in order that the defendants might be allowed to set up the defence that they had been in occupation as co-sharers and were cultivating the land as co-sharers with the consent of the plaintiffs, although personally I am always most anxious that the real issues between the parties should be investigated, especially if that can be done by making proper provision as regards costs, I do not think that this is a case in which we should do that. It has been pointed out by my learned brother Mr. Justice Mookerjee that this litigation has been going on for the last ten years and it was not until the last moment, when the case came before Mr. Justice Mullick in the High Court, that this point apparently was ever thought of. Besides it was quite inconsistent with the case set up in the Courts below. I do not think we should be doing justice to the plaintiffs in this case if we were to accede to this argument of the learned Vakil. For these reasons I think this appeal should be allowed, the judgment of Mr. Justice Mullick set aside and that of the first Appellate Court restored. The plain; tiffs are entitled to their costs of this appeal and the appeal before Mr. Justice Mullick.
Asutosh Mookerjee, J.
10. I agree that the judgment of Mr. Justice Mullick cannot be supported.
11. The plaintiffs instituted this suit on the 23rd February 1906 for recovery of possession of a parcel of land upon declaration of title. Their case, shortly stated, was that the disputed land was comprised in Estate No. 5557 an the revenue rolls of the Collector of Faridpur; that they, along with the eighteenth and nineteenth defendants, were proprietors of that estate in the proportion of five to one; and that on the 18th February 1897 their co-sharers and the other defendants had unlawfully taken exclusive possession of the land. They prayed accordingly for recovery of joint possession on declaration of the aforesaid title to a 5/6th share of the land in suit. The defence in Substance was that the disputed land was not comprised in Estate No. 5557; that it did not constitute the joint property of the plaintiffs and their co-sharer defendants; that it was the property of two other defendants who were proprietors of another Estate No. 2540 on the revenue rolls of the Collector of Faridpur; and that the defendants were lawfully in possession as lessees under the proprietors of that estate. The defendants further pleaded that the suit was barred by limitation, inasmuch as neither the plaintiffs nor the defendants as their co-sharers had been in occupation of the land as included in Estate No. 5557 within 12 years antecedent to the institution of the suit. The Court of first instance found upon the questions of title and limitation against the plaintiffs and dismissed the suit. Upon appeal the Subordinate Judge came to the conclusions, first, that the land Was included in Estate No. 5557 as alleged by the plaintiffs and not in Estate No. 2540 as asserted by the defendants, and secondly, that the plaintiffs had been in possession within 12 years of the institution of the suit. The Subordinate Judge accordingly made a decree in favour of the plaintiffs, which entitled them to recover possession to the extent of their 5/6th share, jointly with the co-sharer defendants. Oh appeal to this Court, the decree of the Subordinate Judge was assailed principally on two grounds, namely, first, that the decision was erroneous in respect of the question of title; and secondly, that even if the question of title was deemed concluded by the decision of the Subordinate Judge, the plaintiffs were not entitled to a decree for joint possession of the land. Mr. Justice Mullick has held that the plaintiffs are not entitled to joint possession, and he has placed reliance upon two decisions of the Judicial Committee, namely Watson and Co. v. Ram Chund Dutt 18 C. 10 : 17 I.A. 110 (P.C.) and Lachmeswar Singh v. Manowar Hossein 19 C. 253 : I.A. 48 (P.C.).
12. This decision has now been assailed on behalf of the appellants upon two grounds, namely, first, that the defendants should not be allowed, at this stage of the case, to fall back upon their position as co-sharers and to defeat the claim for joint possession of the land on the ground that they were entitled as co-sharers to take exclusive possession of the disputed land, and secondly, that even if the defendants be permitted to rely upon their status as co-sharers, the decisions mentioned are of no assistance to them. In my opinion, these contentions are well founded. It is plain that the defendants, even in their appeal to this Court, sought to maintain the position that they had entered upon the land as lessees under the proprietors of the Estate No. 2540. It was not until after they had failed upon that point, that they turned round and relied upon their position as co-sharers of the plaintiffs in respect of Estate No. 5557.
13. Now, the rule laid down by the Judicial Committee in Watson and Co. v. Ram Chund Dutt 18 C. 10 : 17 I.A. 110 (P.C.) which is a rule of justice, equity and good conscience, must be applied with reference to the circumstances of the individual case before the Court; Prima facie, co-owners are entitled to hold joint possession of joint property. Consequently, if one co-sharer seeks to defeat the claim of another co-sharer to joint possession of joint property, special circumstances must be alleged and established, so as to justify exclusive occupation of the joint property by one of the co-owners. No foundation for such a case has been laid in the pleadings, in the issues or in the evidence. The Court cannot now, after the matter has been fought for over ten years upon entirely different lines, allow the defendants to make a new case wholly inconsistent with what they had made before, and to have a remand and retrial. Besides it is perfectly plain, upon the admitted facts of this case, that the defendants cannot possibly resist the claim for joint possession. The principle deducible from the cases is that a co-sharer who has been ousted from joint property is entitled to recover joint possession. Mohesh Narain v. Nawbut Pathak 1 C.L.J. 437 : 32 C. 837; Lokenath Singh v. Dhwakeshwar Prosad Narayan Singh 27 Ind. 465 : 21 C.L.J. 253 : 20 C.W.N. 51. In the present case, there is no room for doubt that the plaintiffs were ousted by that defendants. No other effect can possibly be attributed to the acceptance by the contesting defendant of a lease of the disputed land from an adverse claimant and to their entry upon the land in assertion of the title so derived, from the adverse claimant. Biseswar Gangooly v. Bhagabati Charan Banerjee 35 Ind. Cas. 26 : 24 C.L.J. 38 decided by Mr. Justice Roe and myself on the 13th May 1915. Reliance has been placed, however, upon a passage from the judgment of the Judicial Committee in Lachmeswar Singh v. Manowar Hossein 19 C. 253 : 19 I.A. 48 (P.C.) to show that the mere fact that a co-owner has setup an adverse title in himself doe9 not disentitle him to the benefit of his position as a co-sharer. That case is clearly distinguishable on the ground that there the co-owner had not been excluded from the enjoyment of the joint property. In the case before us, on the other hand, the plaintiffs have been excluded from the enjoyment of the joint property by the defendants in assertion of a hostile title. To constitute ouster, a physical eviction is not essential; if a co-owner is in possession on behalf of or under an adverse claimant wider such circumstances as to evidence a claim of exclusive right and title and a denial of the rights of the other co-owners, there is an ouster in law. When a co-owner accepts, as here, a deed of the whole property from one who has no title, and claims and exercises the rights of sole' ownership under a denial of any other person's right in the premises, he is obviously in adverse possession to the exclusion of his co-sharers. In these circumstances, the plaintiffs are clearly entitled to a decree for joint possession.
14. In my opinion, the judgment of Mr. Justice Mullick is erroneous and cannot be supported; his decree must accordingly be reversed and that of the, Subordinate Judge restored with costs.