Hill and Rampini, JJ.
1. The appellants in this Court are, it appears, co-proprietors with the plaintiff in a certain taluk, the former holding a two-anna and the latter a fourteen-anna share thereof.
2. It also appears that the appellants obtained a money decree against one he tenants holding under the talukdars as a body, and in execution of that they brought the holding to sale, purchased it themselves, and obtained possession. The holding in question was an occupancy holding; an' it has been found, as a matter of fact, that in that particular locality occupancy holdings are not transferable without the consent of the landlord.
3. The plaintiff brought the present suit for the purpose of regarding joint possession along with the appellants of the lands comprised in the holding in question.
4. Both the Courts below have decreed in his favour, and have restored the plaintiff to joint possession of the land.
5. In this Court it is contended that the form of the suit was misconceived, and that the plaintiff, if entitled to any relief whatever, is entitled only to a partition of the estate. No authority has been cited for this proposition, but reliance has been placed upon a remark made in the judgment which was delivered in the case of Palakdhari Rai v. Manners (1895) I.L.E., 23 Cal., 179 (185), which possibly, so far as it goes, may tend to sustain the contention, that, however, is merely an obiter dictum; and there is no doubt that the view in this Court has beep, so far as we are aware, for a long series of years to the contrary effect. Reliance has also been placed upon the well-known cases of Watson and Co. v. Ramchund Dutt (1890) I.L.R., 18 Cal., 10: L.R., 17 I.A. 110, and Lachmeswar Singh v. Manowar Hossein (1891) I.L.R., 19 Cal., 253: L.R., 19 I.A., 48. These cases are, however, in our opinion, clearly distinguishable from the present. Upon the findings of fact arrived at by the Courts below, the present case might thus be stated: A two-anna sharer in the taluk has, without the consent of his co-sharers, expelled (for it comes to that) one of the common tenants of the talukdars, and has possessed himself to the exclusion of his co-sharers of the lands held by him. But this is not a case such as is contemplated by either of the decisions cited. For there are in this case no considerations whatever of an equitable kind, so far as we can perceive, to sustain the claim brought forward by the appellants to retain possession of the land from which they have expelled the tenants to the exclusion of their co-sharers.
6. As to the question of abandonment, it has been held by the Courts below (and we think correctly) that, as a matter of fact, there has been an abandonment on the part of the occupancy tenant; that abandonment has been acquiesced in by the landlords, and consequently, there having been consent to the termination of the tenancy on the part of both the tenants and the landlord, the tenancy must be taken to have determined.
7. Then the question of mesne profits was raised. Apparently the Courts below have given the plaintiff a decree for mesne profits, not on the footing of the rent previously received from the tenant who was in occupation of the land, but on the footing of the profits which might have been realized from the land, if properly used and cultivated. It is contended here, however, that all that the plaintiff is entitled to is mesne profits at the rate paid previously by the occupancy tenant by way of rent. We see no reason, however, for dissenting from the view of the lower Courts on this question. The defendants have possessed themselves wrongfully of these lands to the exclusion of the co-sharer, and we therefore think, so far as that question is concerned, they are liable for mesne profits, and we think they ought to pay them, not merely at the rate of rent paid by the tenant for the holding, but upon the ordinary footing of the profits which might have been derived in the course of cultivation from the land.
8. These being our views, we dismiss the appeal with costs.