1. The defendants Nos. 1 to 4 are the appellants in this appeal. The appeal arises out of a suit instituted by the plaintiff for joint possession of the lands in suit with the defendants Nos. 1 to 4 to the extent of the plaintiff's share. The suit was dismissed by the Court of first instance but on an appeal preferred by the plaintiff the Subordinate Judge has reversed that decision and decreed the suit.
2. The facts shortly stated are these. The plaintiff alleges that there is a Niskar named Amar Prasad Choudhury and Jai Narayan Choudhury in which he was a malik to the extent of 3 annas 15 gandas share. The owners of the other shares are the pro forma defendants Nos. 7 to 29. Another pro forma defendant in the suits namely, one Aisali, had under this Niskar a non-transferable occupancy holding which consisted of the land in suit. On the 5th Magh, 1324, Aisali transferred the holding to the defendant No. 4. On the 18th Bhadra, 1328, the defendant No. 1 purchased a share in the maliki right in respect of this Niskar and became a co-sharer of the plaintiff. Thereafter on the 11th Aswin, 1328, the defendant No. 1 purchased the disputed holding from the defendant No. 4 who, as I have already stated, had purchased it from Aisali on the 5th Magh, 1324. Thereafter the plaintiff instituted the present suit. His case was that the defendants Nos. 1 to 4 who were in possession of the lands under the aforesaid purchasers had no right to remain there as the holding was non-transferable. The learned Munsif found that the plaintiff as well as the other co-sharers of the Niskar, with the exception of the defendant No. 1, each possessed some nal lands exclusively, that the plaintiff himself is in khas possession of 5 kanis of Niskar lands, that neither the plaintiff nor his co-sharers pay any rent for these khamar lands to the other co-sharers to whom such rent is due, that the plaintiff's wife is in possession of some lands of the raiyats in the niskar and pays no rent for those lands, that the disputed land is at some distance from the plaintiff's Bari and that although the defendants are, in possession of the disputed lands they never denied the plaintiff's title and in fact are willing to pay rent to the plaintiff. On these findings he came to the conclusion that the plaintiff and his co-sharers were in possession of different plots of land in this joint Niskar according to their convenience. He was of opinion that under the circumstances of the case and having regard to the findings to which I have referred the principle laid down in the case of Basanta Kumari Dasya v. Mohesh Chandra Shaha 21 Ind. Cas. 621 : 18 C.W.N. 328 was applicable and in that view of the matter he dismissed the plaintiff's suit holding that the plaintiff may bring a suit for partition on which the rights of the parties to such plots of land as they may be exclusively entitled to, on such partition, will be determined. The Subordinate Judge was of opinion that the case on the authority of which the Munsif proceeded was not applicable and the point of difference which appeared to him as most prominent was that whereas in the case of Basanta Kumari Dasya v. Mohesh Chandra Shaha 21 Ind. Cas. 621 : 18 C.W.N. 328 the point of time at which the cause of action arose to the plaintiff was one posterior to the point of time when the plaintiff and the defendants had become co-sharers, in the present case the purchase made by the defendant No. 4 on the 5th Magh, 1324, was really a purchase on behalf of all the defendants and the sale by the defendant No. 4 to the defendant No. 1 on the 11th Aswin, 1328, was colourable one and was effected merely for the purpose of showing that it was after the purchase of the maliki right by the defendant No. 1 on the 18th Bhadra, 1328, that the defendants came to be in exclusive possession of these lands. [B] In my opinion, this distinction that exists between the facts of the two cases is not one which may be said to be at all material and in any event it is proper that on a question as to whether the equitable principle laid down in the case of Basanta Kumari Dasya v. Mohesh Chandra Shaha 21 Ind. Cas. 621 : 18 C.W.N. 328 should be applied of not one has got to see the state of facts as they existed at the time when the suit was instituted. [B] Whether the defendant No. 1 or the other defendants are holding the land in suit under a title which may be said to be good as against the plaintiff or not is not really the question which we have got to determine. The position is that the plaintiff now asks to have joint possession with the defendants under the following circumstances that he and the defendants are co-sharers of the taluk with the exception of the defendant No. 1 and each of them has been holding exclusively possession of separate plots of land without payment of rents due therefor, and that the defendant No. 1 who is also a co-sharer is holding this particular plot of land and is willing to pay rent to the plaintiff. The real question, in my opinion, is whether it can be said that there has been an ouster of the plaintiff by reason of any adverse title set up on behalf of the defendants. In the case of Basanta Kumari Dasya v. Mohesh Chandra Shaha 21 Ind. Cas. 621 : 18 C.W.N. 328 an attempt has been made to define ouster and it has been said there that the mere fact of sole occupation by one co-sharer does not necessarily constitute an ouster of other co-sharers nor does it entitle the latter to a decree for joint possession and ouster means 'dispossession of one co-sharer by another where a hostile title is set up by the latter and when the occupation of the latter is not consistent with joint ownership.' In the case before us there is nothing to indicate that the defendant has ever denied the plaintiff's title by receiving rent in respect of the share which belonged to him or in any other way.
3. On behalf of the respondents reliance has been placed upon two decisions of this Court, one in the case of Kumud Lal Roy Chowdhary v. Jogindra Mohan Roy 22 Ind. Cas. 683 : 18 C.W.N. 639. (3) 33 C. 1201 and the other in the case of Surendra Narain Sinha v. Hari Mohan Misser (3). In the former of these two cases it was found as a fact that there was an ouster. That appears from the judgment of Mr. Justice Richardson as well as of Mr. Justice Carnduff; and Mr. Justice Carnduff in his judgment stated that the appellants at once proceeded to take entire possession by settling tenants upon the land and recovering from them the whole rent. That amounts to a denial of the plaintiff's title to receive rents in respect of the lands. The latter of these two cases is distinguishable on the ground that from the facts of that case it appears that the lands, were in possession of two tenants who held under all the co-sharers and were not waste or derelict lands when the defendants took exclusive possession, that exclusive possession of the defendants was resisted from the very outset and indeed there was violent opposition on the part of the plaintiff by proceedings taken in Court, for instance, by the institution of a suit restraining the defendants from taking possession as well as by armed resistance. [A] It is true that as a general proposition one co-sharer has no right to take exclusive possession of a joint property but the question whether such exclusive possession amounts to an ouster or not depends upon the circumstances of each particular case; and in a case where we are unable to hold that there was an ouster it would not be right to refuse the defendant who is in possession the benefit of the equitable principle which is to be found in the case of Basanta Kumari Dasya v. Mohesh Chandra Shaha 21 Ind. Cas. 621 : 18 C.W.N. 328. [A], It may be remarked also that the plaintiff waited for several years after possession was taken by the defendants, and then instituted the present suit.
4. I am clearly of opinion that the judgment of the learned Subordinate Judge is wrong and that it should be set aside, We accordingly set it aside and restore the judgment of the learned Munsif. The appeal is thus allowed with costs in this Court as well as in the lower Appellate Court,
5. In conclusion, I desire to state that I sincerely hope that the result of this appeal will not dissuade the defendant from paying such rents as may be reasonable to the plaintiff, as it appears upon the proceedings that he is willing to do, nor the plaintiff from accepting such rents from the defendant as he thinks fair and reasonable, if he feels inclined to do so.
6. I agree.