1. The facts of this case as found by the lower Court, are as follows: The land in suit about 1 1/2 bighas in area appertains to a Revenue free Mahal bearing Touzi No. 237 of the Birbhum Collectorate. The plaintiff, known as the Raja of Hetampur, is the patnidar of 12 1/2-annas share of that Estate and the defendants are owners of the remaining 3 1/2-annas share of the Zemindari. On the 6th Pos 1320, corresponding to December 1913, a hat was opened on this land. It was the plaintiff's case that he alone opened this hat, but the finding is that it was established both by the plaintiff and the defendants. At first some thatched huts were erected from materials collected by the plaintiff's manager and the defendants from their joint tenant. About a month later it was proposed to build corrugated iron sheds in place of the thatched huts. The defendants were asked to pay their share of the expenses of erecting these iron sheds and they expressed their inability to do so. Thereupon the plaintiff had the iron sheds built at his own cost. The plaintiff also at this time set up a marble slab describing the bazar as Brahma Bazar after his son Brahma Narain Chakravarti. In the year 1325 the defendants attempted to levy tolls and there was dispute which led to proceedings under Section 145, Criminal Procedure Code, being instituted. These proceedings were dropped and to prevent future disputes the plaintiff instituted the present suit for declaration of his right to take the 16-annas share of the profits arising from the hat. On these findings of fact the lower Court has granted the plaintiff a decree declaring his exclusive title to that portion of the hat on which the corrugated iron sheds stand and to the exclusive profits arising therefrom. The remainder of the claim has been disallowed.
2. We are unable to agree with the learned Subordinate Judge that on the facts found the plaintiff is entitled to a decree declaring his rights to the whole of the profits arising from any portion of the hat. The law to be applied in a case when one co-sharer takes exclusive possession of joint land is laid down in the cases of Watson & Co. v. Ramchand Dutt 18 C. 10 : 17 I.A. 110 : 5 Sar. P.C.J. 535 : 9 Ind. Dec. (N.S.) 7 (P.C.) and Lachmeswar Singh v. Manowar Hossein 19 C. 253 : 19 I.A. 48 : 6 Sar P.C.J. 133 (P.C.) and our attention has also been drawn to the case of Madan Mohan Saha v. Rajab Ali 28 C. 223. But the principles laid down in these cases are not applicable to the facts as found in the present case. Since the hat was started on joint land by both the plaintiff and the defendants, it is not a case of one co-sharer taking possession to the exclusion of the other. The fact that after the hat had been established the plaintiff made improvement in the hat at his own expense would not give him the right that he claims in this suit to exclude his co-sharer from the hat that had been started for their joint benefit.
3. On behalf of the plaintiff is filed a cross-objection to this appeal and it is contended that the finding of fact should be reversed and it should be held that the plaintiff established the hat after purchasing the rights of the tenants in occupation of the land. In support of this he relies on the deeds of sale Exhibit. I executed by one Katifan Bibi in 1903 in favour of Ishan Mudi conveying 10 cottas of rent free land, Exhibit 3 a deed of sale by which Ishan Mudi sold this land and an additional 5 cottas of rent paying land to the plaintiff on the 3rd February 1919, and also Exhibit 4 a deed of sale by which the widow of Gadadhar sold some land to the plaintiff on the 2nd March 1919. These two last deeds recite that the land was actually sold to the plaintiff before the establishment of the hat. But the evidence given to prove these deeds does not support the recitals in them. Ishan Mudi himself says that the land was forcibly taken from him by the zemindar, and it was not until he threatened to bring a suit that the sale, deed was executed. The witness who proves Exhibit 4 says nothing about any purchase prior to the date of the deed. It is also suggested that the witnesses for the plaintiff who support the defendants' story that the hat was started by both the plaintiff and defendants have been induced to give false evidence because the defendants have considerable influence in the locality. We cannot reject the evidence of the plaintiff's own witnesses on this ground. Not one or two but practically all the plaintiff's witnesses agree that the hat was started by both parties. We cannot believe that if the land had really been bought by the plaintiff before the hat was started he would have asked his co-sharer defendant to join with him in starting the hat. We have no doubt that this fact is true and this is fatal to the case for the plaintiff.
4. The result is that the plaintiff's suit fails. We accordingly decree this appeal, reverse the decree of the lower Court and dismiss the suit. The defendants-appellants will get their costs in this and in the lower Court.
5. The cross-objection is disallowed. We make no order for costs in the cross-objection.