1. This appeal arises out of a suit to recover joint possession of certain lands on establishment of the plaintiff's zamindari right thereto to the extent of 3 annas 9 gundas, 1 kag share. The allegations upon which the suit was based shortly stated were that the defendants Nos. 13 and 14 were co-sharers of the plaintiff to the extent of 5 annas 3 karas 3 kags and that the remaining 7 annas 10 gundas share belonged to certain persons sailed the Parsha Zemindars who, how-over, are no parties to this litigation, The plaintiff alleged that the defendants Nos. 13 and 14 had settled the lands in dispute with the defendants Nos. 1 to 12, that the said settlement was unauthorized and that those persons were cultivating the lands and were in possession thereof. He, therefore prayed for recovery of joint possession to the extent of his share as stated above.
2. The contesting defendants, namely, defendants Nos. 13 and 14, alleged that, out of the lands in suit, 129 bighas were debuttar of Madan Mohan Thakur, that of the remaining lands, a portion was the debuttar land of Kali Thakurani and another portion was the kamat land of the Parsha Zemindars and, furthermore, that the said Thakur and Thakurani were in possession of the said lands which belonged to them respectively for over twelve years and that, therefore, the plaintiff had no right whatsoever therein.
3. The learned Subordinate Judge came to the conclusion that the right in which the defendants Nos. 13 and 14 proposed to hold the lands in suit was a right which they ware relying upon in utter denial of the plaintiff's right, and, in that view of the matter, he held that, although the said defendants were co-sharers of the plaintiff they were not entitled to the protection of the well-known principle of the equity laid down in the case of Watson & Co. v. Ramchand Dutt (1891) 18 Cal. 10. He accordingly decreed the plaintiff's suit with costs declaring the plaintiff's right to a 3 annas 3 gundas 1 kag share in the disputed land and awarding him joint possession of the same with the defendants. He also passed an order directing that the plaintiff would get mesne profits to be determined later on the plaintiff's application.
4. The defendants Nos. 13 and 14 preferred an appeal against the aforesaid decision. At the appellate stage, there was a change of point on the part of these contesting defendants and, to use the words of the learned District Judge, whereas in the whole of their pleadings the appellants, namely, the defendants Nos. 13 and 14, took up a position in denial of the plaintiff's title their learned vakil in the course of the appeal threw over-board the whole of the pleading and took stand on the position that the plaint disclosed no causa of action.' The learned District Judge, however, came to the conclusion that there was no evidence that prior to the filing of the written statement any circumstances existed to justify the assumption that the plaintiff has been excluded from the enjoyment of the joint property in consequence of the assertion of hostile title on the part of the defendants Nos. 13 and 14 and, having taken that view, he set aside the decision of the learned Subordinate Judge and, in lieu thereof, made a decree to the effect that the plaintiff would only be entitled to compensation from the defendants Nos. 13 and 14 in the shape of a proportionate share of the rent to which they were entitled. The learned District Judge also upheld the decree of the Court of first instance as regards mesne profits. Against this decision, the plaintiff has preferred this appeal.
5. Now, the principle laid down in the case of Watson & Co. v. Ramchand Dutt (1891) 18 Cal. 10, is well-known. It is an equitable principle which, however, has got to be applied very carefully, regard being had to the particular circumstances of the case which comes up before the Court. In that case, their Lordships of the Judicial Committee held: 'If there be two or more tenants-in-common and one A be in actual occupation of part of the estate and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant-in-common B attempts to come upon the said part for the purpose of carrying on operations there inconsistent with the course of cultivation in which A is engaged and the profitable use by him of the said part, and A resists and prevents such entry, not in denial of B's title, but simply with the object of protecting himself in the profitable enjoyment of the land, such conduct on the part of A would not entitle B to decree for joint possession.' Their Lordships went on to observe, in Bengal the Courts of justice, in cases where no specific rule exists, are to act according to justice, equity and good conscience, and if in a case of share-holders holding lands-in-common it should be found that one share-holder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work or to allow any other shave-holder to appropriate to himself the fruits of the other's labour or capital. Now applying these principles to the facts of the present case can it for a moment be suggested that the defendants Nos. 13 and 14 were resisting the plaintiff's right, not in denial of the plaintiff's title, but simply with the object of protecting themselves in the profitable enjoyment of the land; or can it be said that the plaintiff in seeking to get a decree for joint possession was trying to appropriate to himself the fruits of the labour and capital of the defendants Nos. 13 and 14? In the view that I take of the facts of this case, the principle relied upon by the learned District Judge does not seem p be applicable at all. It is not necessary to refer to the cases of Madan Mohan v.. Rajah Ali (1901) 28 Cal. 223 and Surendra Narain v. Hari Mohan (1906) 33 Cal. 1201, because in my judgment.-the facts of those cases are entirely distinguishable from those of the case now before us. The case which makes the nearest approach to the present one is that of Jatindra Nath Roy v. Sabidennessa Khatun (1916) 24 C.L.J. 165, where it was held that 'prima facie, co-owners are entitled to hold joint possession of joint property and 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-sharers; and further that where the defendants who appeared to be co-sharers of the plaintiffs as regards the land in dispute, had all along been denying the title of the plaintiffs and asserted that they had been in possession of the land under a third person in a suit for recovery of land upon declaration of title the plaintiffs are entitled to a decree for joint possession.' The learned District Judge in the present case distinguished the decision in that case upon the grounds that in his opinion there was no evidence that prior to the written statement there was any circumstance to show that the co-owner plaintiff had been excluded from the enjoyment of the joint property by the assertion of a hostile title. It is true that the mere setting up of a rival claim or a hostile title in the written statement would not entitle the plaintiff to allege that there was ouster and, on that footing, to seek for a decree for joint possession. But, in the present case, it is difficult to say why it should be held that there was no setting up of hostile title or ouster prior to the filing of the written statement. The fact that the lands in dispute were settled with the defendants Nos. 1 to 12 in adhi settlement upon the footing that they belonged exclusively to the defendants Nos. 13 and 14, the fact that they thus remained in occupation for about five years, the fact that when the right of the defendant Nos. 13 and 14 to settle the lands was challenged in the suit, they put forward a defence to the effect that the lands were not the joint property of the plaintiff and themselves but that they were the debuttar property of Madan Mohan Thakur and Kali Thakurani and also that a portion of the lands was khimat land of the Parsha zemindars, who, as I have said, are no parties to this litigation, all these taken together clearly show that the right under which the settlement was preferred to have been made by the defendants Nos. 13 and 14 was a right set up adversely to the plaintiff and in that view, I think the principle laid down in the case of Watson & Co. v. Ram Chand Dutt (1891) 18 Cal. 10, referred to above does not apply to the present case. I, therefore, think that the decree passed by the learned District Judge should be set aside and that passed by the learned Subordinate Judge should be restored with costs in this Court and also in the lower Appellate Court.
6. I agree.