1. These two appeals arise out of two suits which were numbered 1068 and 1069 of 1917 in the Court of the Second Munsif at Howrah. In the first of the suits the plaintiffs were four Muhammadans who sued as representing the Muhammadan community in Makordaha village in the Hooghly District. They sued for a declaration that a certain tank and its four slopes or bagchars were pirathar property and for confirmation or, in the alternative, for recovery of possession of the same. The defendants in the suit are described generally as the Kundu Ohaudhurys and are sued as Zemindars of the village, in which the tank is situated. In Suit No. 1069 there are seven plaintiffs and six of these are defendants in Suit No. 1068. These plaintiffs sued for a declaration of their Zemindari right to 11-annas, 10 gundas share of the western bank of the same tank and also for the demolition of a pucca structure erected thereon. The defendants in that suit are the four plaintiffs in Suit No. 1068 and three other Muhammadans and these defendants are sued as representatives of the Muhammadan community of Makordaha. The two suits ware tried together and were both dismissed by the Munsif. On appeal to the Subordinate Judge of Hooghly the dismissal of the suit brought by the Muhammadans was confirmed, but the suit brought by the Kundu Chaudhurys was decreed. Against these decisions the plaintiffs in Suit No. 1068 and the principal defendants in Suit No. 1069 have appealed.
2. In arguing the appeals, the learned Pleader for the appellants concedes that on the findings of fact arrived at by the lower Appellate Court he cannot dispute the decision on the merits. His contention is that Suit No. 1068 should not have been entirely dismissed, since three of the defendants in that suit filed written statements supporting the claim of the plaintiffs; and in the appeal arising out of Suit No. 1069 his contention is that the decree should be set aside so far as it directs the demolition of the structures on the land. The three defendants who filed written statements in Appeal No. 1866 supporting the plaintiffs' claim were defendants Nos. 10, 12 and 14. In their written statements they set out that they were co sharers of the Zemindari containing the lands in suit. Defendants Nos. 10 and 12 stated that they believed that the property in suit did not belong to the mal land of the Zamindari Makordaha Mahal and that they had heard from their predecessors that the owners of the 16 annas Zemindari had given up their claim to the tank in dispute, Defendant No 14 stated more clearly that though he was a co sharer owner of the Zemindari containing the lands in suit, ha had no connection with it and was never in possession thereof. On these admissions we see no reason why the suit should have been dismissed so far as these defendants alone were concerned. We are asked to remand the case in order that there may be a farther investigation to determine what is the share in the Zemindari of these defendants, but in the lower Courts no issue was raised on this point and it is too late to ask at this stage for a further enquiry into the case. All that the plaintiffs can get is a mare declaration of their title as against these defendants.
3. The result is that, so far as the other respondents in Appeal No. 1866 are concerned, the appeal will stand dismissal and the decree of the lower Appellate Court dismissing the suit will be confirmed. As against defendants Nos. 10, 12 and 14 the suit will be decreed and the title of the plaintiffs as against these defendants declared, As these respondents did not appear in this Court, we make no order as to their costs. As regards the respondents against whom the appeal is dismissed, they will get their costs from the appellants. The two sets of respondents who appear will divide their costs equally.
4. In Appeal No 55 of 1919 the only point taken is that the plaintiffs who only claim 11 annas, 10 gundas, 3-krants interest in the land in suit are not entitled to a decree for demolition of the pucca structure on the land. We think this contention is correct. From the plaint it appears that the plaintiffs do not claim to be possession of the whole of the land. In paragraph 3 of their plaint their allegation was that after the land had been leased to the tenants, it was held in khas possession by the plaintiffs and the pro forma defendants. One of these pro forma defendants, it appears, is one of those defendants who in the other suit are siding with the Muhammadan plaintiffs. Co-sharer landlords who are in possession of their shares only are not entitled to a decree directing demolition of structures on lands belonging to all the co-sharers, unless the other co-sharers join with them in asking this relief. That being so, Appeal No. 55 of 1919 must be decreed to this extent, that the portion of the decree directing the defendants to remove their pucca structures in the disputed land within three months will be set aside. In other respects the decree of the lower Appellate Court will stand. In this appeal the contesting respondents will pay the costs of the appellants.