Brett and Gupta, JJ.
1. The reasons assigned by the learned Scb-Judge for allowing the defendants to retain possession of the barari lands to the exclusion of the plaintiff appear to us to be threefold. First, that there was no ouster or dispossession of the plaintiff; second, that there was acquiescence on the part of the plaintiff; and third, the defendants 'grodualy improved the land by spending some labour and capital and established a bazar and held the annual' Baruni Mela.' The Sub Judge has observed' The plaintiff or the defendants 4 to 6 were not in possession at the time and it was open to the defendant No. 1 to hold it, Here there was no forcible dispossession of any cosharer, for the land was Naya Barari or newly formed laud.' 'No suit was brought by the plaintiff for this bnrari land, though he hastened to bring the injunction suit for stoppage of the erection of the buildings for the Manoharpur factory, and for a period of seven years he by his silence tacitly acquiesced in all that the defendant No. 1 did to improve the land at the expense of labour and capital.' 'Equity must now help the defendant, who was not a trespasser from the beginning, because the land having newly reformed was not in actual and constructive possession of any cosharer.' In arriving at these conclusions the learned Sub-Judge relied on the principle of law enunciated in the Privy Council case of Watson & Co. v. Earn Chund Dutt (1890) I.L.R. 18 Calc. 10 : L.R. 17 I.A. 110, which principle he says was again approved in the Privy Council case of Lxchmeswar Singh v. Munowar Hussem (1891) I.L.R. 19 Calc. 253 : L.R. 19 I.A. 48 and was followed in the case of Madan Mohun Shaha v. Rajah Ali (1900) I.L.R. 28 Calc. 223. In the course of the arguments before us reference has also been made to the cases of Bhairon Rai v. Saran Rai (1904) I.L.R. 26 All. 588 and Jagannath Singh v. Jainath Singh (1904) I.L.R. 27 All. 88.
2. We are unable to agree with the Subordinate Judge in the reasons stated by him or in his application of the principles of law referred to by him to the facts and circumstances of the present case. We find that the lands were not waste or derelict lands, but that they were actually taken possession of and cultivated by the two persons named above, Raman and Banshi, as implied tenants of all the cosharers, to whom they were bound to pay rent. But even if it were not so we are not prepared to hold that, whenever new lands are formed by accretion to an old estate it is open to any cosharer of the estate, who appears first on the field, to grab possession of the land and hold it either as his kumat or by settling tenants thereon to the permanent exclusion of all the other cosharers. Such a principle would be subversive of the rights of joint owners and would, in the large alluvial tracts of Bengal, lead to frequent disturbances of the peace. In this very case the defendants in paragraph 9 of their written statement admit that in the year 1308 BS., which was the second year of the mela, 'there was violent opposition made on the part of the plaintiff by proceedings taken in Court as well as by armed resistance offered at the site of the mela itself.' The Lower Court has observed that in 1308 (1901) the plaintiff 'for the first time attempted to collect his share of the fees and tolls with the aid of the Police.' With reference to this it may be Observed that the bazar and the mela were started by the defendants only in 1307 (1900). Up to the year 1903 the defendants were contesting the plaintiff's suit for joint possession of the ijmali lands in Mania hairpur, on which the defendants had commenced to build a rival factory and for a permanent injunction restraining them from the building of such factory. The judgment of the High Court decreeing the plaintiffs suit in appeal is dated the 1st June 1903, and the present suit was instituted on the 14th April 1903. As stated above the plaintiff had in 1901 asserted his light to collect his share of the fees of the mela. The injunction suit promptly brought by the plaintiff was a protest against the plan of campaign adopted by the defendants. The attempted erection of a rival factory at Manoharpur, and the seizure of (he karari and barari lands in the adjoining village of Manihari were parts of the same plan of campaign, which had for its object an invasion of the plaintiff's rights. We fail to see therefore that there was any acquiescence in the legal acceptation of the term, or that any equity crises in favour of the defendants.
3. As regards the bazar it appears that there are no permanent structures of any sort and as has been stated by Ra jani Kant Dass, defence witness No. 1, 'The bazar is held near the steamer ghat; when the steamer ghat is shifted, (he bazar is also shifted.' It is well known that on the Ganges the steamer ghat or landing place has to be shifted both during the season of floods and the dry season; and it appears from paragraph 7 of the written state-inent that the bazar has been shifted many times. If the defendants pad the costs of these removals they also enjoyed the profits and if the plaintiff of tains joint possession, he will have to bear his share of the costs and will be entitled to his share of the profits. The same remarks apply with even greater force to (he annual Baruni Mela. The fair is held on open lands when crops are off the ground and the costs incurred, if any, are for the occasion only. It cannot be said that the defendants improved the lands by spending labour and capital thereon. The clearing of grass and scrub jungle, such as grows on newly formed 'chur' lands, is a trifling matter. There is no reliable evidence that the defendants did clear any jungle, and the Subordinate Judge himself has disbelieved the story of reclamation No definite facts have been proved or even alleged in the written statement in support of the allegation that the defendants improved the lands at 'the expense of labour and capital.' The accounts to which the learned pleader for the respondents referred clearly relate to expenditure on other objects, it having been incurred in, the year 1297 B.S. or ten years before the establishment of the bazar.
4. We have considered the rulings cited above and do not think it necessary to discuss them in detail. In the case of Watson & Co-v. Ram Chund Dutt (1890) I.L.R. 18 Calc. 10; L.R. 17 I.A. 110 on which the Lower Court has mainly relied, the defendants Watson & Co. had entered peacefully into possession under leases from the plaintiffs and reclaimed part of the land settling cultivators, who, grew indigo for the factory and the defendants themselves cultivated indigo on the khas or untenanted part. The plaintiffs were only co-owners of the land and the defendants had acquired rights by transfer from others owning interests in. the remaining shares, and they were growing indigo on 4,128 bighas of land for their factory under a right) which they bad derived from all the co-owners. On the expiry of the lease granted, the plaintiffs gave notice and attempted to enter upon the land in order to carry on operations inconsistent with the work already being carried on by Messrs. Watson & Co. and were resided and prevented by them in such attempted entry. It was held by their Lordships of the Privy Council> reversing the judgments of the Lower Courts, that the plaintiffs were not entitled to a decree for joint possession or for injunction because 'the resistance was made by the co-sharer in occupation simply with the object of protecting himself in the profitable enjoyment of the land, in good husbandry and not in denial of the other's title.' They also held that' where land was held in common between the parties and one of them was in the act of cultivating a part of the land, which was not actually used by the other, it would not be consistent with the rule of justice, equity and good conscience to restrain the former from proceeding with his proper cultivation.' The essential elements of that decision are absent in the present case. Here there was no peaceful letting into or taking of possession. The defendants are not cultivating any part of the land or carrying on any work thereon inconsistent with the joint possession of (he plaintiff. There is no actual cultivation by the defendants or any work carried on by them for any particular purpose. The seizure of possession amounted to an act of reprisal and was committed in defiance of the plaintiff's rights. The Subordinate Judge has found that the defendant No. 1, being ousted by the final order of the High Court from the indigo factory at Manihari in Aswin 1303,' smartly felt the ouster and in anger and revenge resolved to start another rival factory and commenced to erect it in Manohar-pur, another ijmali mouza. It is thus the month of Kartiok 1303 (October 1896), which is stated to be the period of' dispossession of the plaintiff from the lands in suit.' The Subordinate Judge has also found that the lands were formed, in 1302 (1895), and if Raman and Banshi cultivated them for one year, which he thinks not unlikely, the date of the dispossession would be Kartick 1303. Assuming that the defendant's purpose in taking possession of the land was the cultivation of indigo, that purpose having come to an end long since, there is no longer any reason why they should continue in exclusive possession of the land.
5. The case of Lachmeswar Singh Manowar Hossein (1891) I.L.R. 19 Calc. 253 : L.R. 19 I.A. 48 arose out of a dispute between the co-owners of an estate regarding a ferry established in ijmali land. Their Lordships of the Privy Council held that 'the parties are co owners and the defendant has made use of the joint property in a way quite consistent with the continuance of the joint ownership and possession. He has not excluded any co-sharer or prevented any one else from setting up a boat for the purposes of a ferry; so far from inflicting any damage upon the joint owners the defendant has supplied them gratuitously with accommodation for passage.' 'By the defendant's acts the plaintiffs have lost nothing, and have received some substantial convenience.' In their judgment in this case their Lordships explained the true reason of their [decision in the case of Watson & Co referred to above. It is hardly necessary to refer to the case of Madan Mohun Shaha v. Rajab Ali (1900) I.L.R. 28 Calc. 223, which has been cited in the Lower Court's judgment. There it was found that the disputed silted-up tank 'was all along in the exclusive possession of the defendants;' that 'such possession was with the permission' of the plaintiffs' that ''the lessee defendants had improved the tank at their own expense' and that 'the plaintiffs had not raised any objection at the time of the excavation.' Hence the Lower Courts gave to the plaintiffs joint possession through the lessees, but dismissed their claim for khas possession. The High Court on second appeal affirmed that decision.
6. For the reasons stated above we think the plaintiff in this case is entitled to obtain joint possession with the defendants Nos. 1 to 6 and not merely rents from the defendants leaving them in exclusive possession of the lands. We reverse the judgment of the Lower Court in so far as it dismissed the plaintiff's claim to joint possession with the defendants of the barari lands comprised in plots Nos. 1 to 13 of the schedule to the plaint. These lands are said to be in occupation of tenants, and where such is the case, the plaintiff is entitled to joint possession through those tenants, viz., to his 13 annas 3 pies share of the rents payable by those tenants. The plaintiff will also get mesne profits for these lands for the period in suit from the defendants Nos. 1 to 3. In calculating the mesne profits, the profits derived from the bazar and the mela should be excluded as these were organised by the defendants at the cost of some trouble and expense, and we think the plaintiff is not entitled to share in those profits derived in the past. The appeal is accordingly decreed with costs.