1. This suit relates to an old silted-up tank which has recently been improved at considerable expense by the principal defendants for the benefit of the village at large.
2. It appears that before the tank was leased to these defendants it lay practically useless, and the rank grass which grew thereon was taken by the second party defendants for feeding their elephants. Now that the silted-up tank has been improved by the principal defendants, the plaintiffs bring this suit for the purpose of obtaining hkas possession jointly with the lessors, or with the lessees as the Court may direct. Their case is that they are fractional sharers of the land in which this tank is situated. According to their own statement they are owners of a three anna eleven gunda share only, whilst the lessor defendants own more than twelve annas. It has been found by both the Lower Courts that the lessor defendants were in exclusive possession of this silted-up tank, and made use of it for their elephants, the services of which the plaintiffs sometimes obtained. Written statements were filed on behalf of both sets of defendants, in which they denied that the plaintiff had any interest in the land in suit, alleging that it belonged to another taluq They also contended that as there was a great want of drinking water for the tenants of the village, the principal defendants took a settlement of the tank on an annual jama of Rs. 4 and payment of a nazzur or bonus of Rs. 50, that they re-excavated the tank at the expense of Rs. 700, and raised embankments and improved it, and made it fit for the supply of water to the village.
3. Munsif found that the tank belonged to the plaintiffs as well as to the lessor defendants. He also found that although it was all along in the exclusive possession of the latter, such possession was with the permission of the plaintiffs. and considering that the lessee defendants had improved it at their own expense, and that the plaintiffs had not raised any objection at the time of the excavation, he made a decree, declaring the plaintiffs' right and giving possession through the tenants. The claim for khas possession was accordingly dismissed.
4. The plaintiffs appealed, and the Subordinate Judge has affirmed the judgment of the First Court.
5. In second appeal to this Court a most ingenious argument has been raised by the learned pleader for the appellant on the basis of the case of Watson and Co. v. Ramchund Dutt (1890) I.L.R. 18 Cal. 10.; L.R. 17 I.A. 110. To this contention we shall presently refer. In order to deal with this argument it is necessary however to mention the findings of fact arrived at by the Lower Appellate Court. It has been found that the silted-up tank was all along in the possession of the lessor defendants; that possession was no doubt of a permissive character so far as the plaintiffs were concerned. It has also been found that the plaintiffs never raised any objection when the lessee defendants were excavating and improving the tank. They allowed them to spend their money for its improvement, and now that the property has been improved and has become really valuable, they turn round and ask that joint possession be given to them along with the lessee defendants.
6. The silted-up tank was yielding no profit to anybody. If the lessor defendants acted beyond what they were entitled to, it was what would be called in English Law ameliorating waste. They settled the tank with the lessee defendants who improved it, and a rent of rupees 4 is now derived therefrom. The Courts below have given the plaintiffs a decree for their share of the rent.
7. Babu Lal Mohun Das, for the plaintiffs contends, however, that inasmuch as their Lordships of the Judicial Committee in the case referred to above had used the expression that when one co-sharer exercises right 'not in denial of the right' of the other co-sharer, his act cannot be impugned by the latter, it must be taken that principle laid down by their Lordships is not applicable to a case where there is a denial of the co-sharer's title as in this case; and consequently the plaintiffs are entitled to recover khas possession in respect of their share.
8. The argument is ingenious but when examined has no substance. An assertion or denial of a right in a written statement does not give rise to a cause of action. A cause of action must be antecedent to any allegation made in the pleadings. In the second place, their Lordships of the Privy Council were dealing with the facts of that case and the special expressions must be confined to those facts. We have only to concern ourselves with the principle laid down; and the principle which we gather from that and other cases is this, that when one co-sharer is holding possession of a certain land and deals with it in a particular way and in the ordinary course, if the other co-sharers are not satisfied with that dealing or with that course of conduct, their proper remedy is by partition. In a partition suit the rights of all the parties are adjudged upon a proper basis, and any loss or damage suffered by one set of partners is made good at the expense of the other.
9. It seems to us therefore that the view taken by the Lower Courts is correct, and we accordingly dismiss this appeal with costs.