1. The following facts are now undisputed, Surja Kanta Chattopadhya has a 12 annas share in certain land. The other 4 annas cosharer is defendant 7. Surja Kanta purporting to be the 16 annas owner of this land accepted a kabuliat from the plaintiffs which was drafted as if it were a lease. By this kabuliat the plaintiffs were given the right of passage over a narrow strip of land forming part of the larger part of land in respect of which. Surja Kanta had a 12 annas share and' defendant 7 a 4 annas share. It is alleged by the plaintiffs that their right of way has been obstructed by defendants 1 to 7. The plaintiffs therefore brought this suit for a declaration of their right of passage over the land and for a permanent injunction restraining the defendants from interfering with this right. Both the Courts-below have decreed the plaintiff's suit. Defendants 1, 4 and 7 have appealed. It is necessary to consider only one ground of appeal and it is this:
The defendants contend that the so-called lease is really not a lease but the-grant of an easement and it is argued that one cosharer has no right to grant an easement which affects the entire land which-he possesses jointly with others. In my opinion, this ground must prevail. An examination of the kabuliat leaves no room for doubt whatsoever that it is not a lease (but the grant of an easement. The differences between a lease and an easement is well defined. By a lease the owner o land retains his ownership but parts with possession. The lessee is entitled to possess the land leased to the exclusion of all others. An easement is a different thing. By granting an easement the owner of the land retains not only his ownership but also his possession. The grantee does not get possession of the land but gets merely a right to the limited use of the land. In this case the plaintiffs have been given merely a right of passage over the land. The granter has not parted with possession of the land in any sense. He retains in himself expressly a right of passage over the land jointly with the grantee. The kabuliat therefore is not a lease. It merely peeks to create an easement in favour of the grantee over the land held jointly by the grantor and his cosharers. The right of one cosharer to grant a lease with respect to his undivided share in land jointly held 3s now well established. Where a cosharer grants a lease with respect to the joint property, as a general rule, the other co-sharers cannot interfere with the lessee's possession and their remedy would be to bring a suit for partition. This right of a cosharer to grant a lease with respect to land held jointly by him with other cosharers is based on certain well recognized principles but a cosharer can have no right to encumber the joint estate to the detriment of the other cosharer in violation of these principles. The principles are laid down in two well-known cases, namely Watson and Co. v. Ramchund Dutt (1891) 18 Cal. 10 and Mohesh Narain v. Nawbut Pathak (1905) 32 Cal. 837. The principles are these. Bach joint owner of property is entitled, in theory, to be in possession of every part and parcel of the property jointly with the other cosharers. So long as he makes a legitimate use of the property and does not exclude the other cosharers or oust them there can be no interference with such user. Where land is intended to be cultivated or leased out one cosharer is entitled to use the land by leasing it out:
As each co-tenant has at all times the right to enter upon and enjoy every part of the common estate, this right cannot be impaired by the fact that another of the co-tenants absents himself, or does not choose to claim his right to an equal and common enjoyment; it would be inequitable to compel a co-tenant in possession to account for the profits realized out of his skill, labour and business enterprise, when he has no right to call upon his co-tenant to contribute anything towards the production of these profits, nor to bear his proportion when, through bad years, failure of crops, or other unavoidable misfortunes, the UBO made of the estate resulted in a loss, instead of a profit, to the one in possession.
2. I have quoted above a passage from Ifreeman on Co-tenancy, which was quoted by Mookerjee J. in Mohesh Narain v. Nawbut Pathak (1905) 32 Cal. 837, as elucidating the principles according to which one cosharer may grant a lease with respect to the land held jointly. A cosharer is entitled to use the land in a normal, natural and businesslike manner. If in the exercise of and in accordance with this user of the land he grants a lease that lease will be a valid one and the lessee cannot be interfered with by the other cosharers. But a co-owner cannot use the land to the detriment of his cosharers. He cannot burden the land with incumbrances which will affect the rights of the other cosharers where the imposition of such a burden is not made in the course of the ordinary and businesslike user of the land. Now it cannot be said that the imposition of a servitude upon a land is necessary for the ordinary enjoyment of the land. Surja Kanta Chattopadhya had no right to burden the joint estate with a right of way. The grant of such a right in favour of the plaintiffs does not, in my opinion, constitute a natural, businesslike and normal use of the land. It amounts to an imposition of a burden upon the land made entirely for the benefit of the grantor and to the detriment of his cosharers. In such a case the cosharers can refuse to be bound by the grant and the grantee can have no remedy against them inasmuch as they are not parties to the grant. Although this point was expressly taken in the lower Appellate Court the learned Subordinate Judge does not seem to have appreciated it. If I may say so with respect he has not borne in mind the principles upon which it has been held that one cosharer can encumber the joint estate with a lease. In this view of the law the plaintiffs' suit cannot succeed and it is accordingly dismissed. This appeal is allowed with costs throughout.