JUDGMENT Harries, J.
1. This is a defendant's appeal against concurrent decrees of the lower Courts passed in favour of the plaintiffs. The plaintiffs filed a suit under Section 44, Agra Tenancy Act, to eject the defendant from a certain piece of land upon the ground that the latter was a mere trespasser and had no right whatsoever to be in possession of the land in question. Both the lower Courts came to the conclusion that the defendant was a co-sharer in the village to the extent of 1/32, but they found that as the defendant had not obtained the express consent of the lambardar to assume possession of this land, he could be ejected at the suit of the plaintiffs.
2. A preliminary objection was taken on behalf of the plaintiffs respondents that no appeal lay to this Court as no question of proprietary right arose in the case and therefore the appeal should have been preferred in the Court of the Commissioner. I have been referred to the pleadings and it is clear that the defendant claimed title to the land in question by adverse possession as zamindar and therefore there was obviously a question of proprietary right in issue in the case. Counsel for the respondents after having seen the pleadings very properly did not press this objection.
3. It is contended on behalf of the appellant that the decree of the Court below cannot possibly stand in face of the findings. There being a question of proprietary right involved in this case, the Revenue Court framed an issue and sent it for determination by a competent Civil Court. That Court held that the defendant was a co-sharer with 1/32 share in the village and that finding was accepted by the Revenue Court. The lower Appellate Court has also found as a fact that the defendant had been in peaceful possession of the land in question for 5 or 6 years and that during that time no one had objected. In other words this is a case of a co-sharer taking possession of land not in the possession of other co-sharers and cultivating it without any objection from the lambardar or the general body of co-sharers for a number of years.
4. In Midnapur Zamindari Co. Ltd. V. Naresh Narayan Roy A.I.R. 1924 P.C. 144 their Lordships of the Privy Council laid down that where lands in India are held in common by co-sharers, each co-sharer is entitled to cultivate in his own interests in a proper and husband like manner any part of lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary right as co-sharers in the lands. When co-sharers cannot agree as to how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands.
5. In Sarabjit Singh v. Raj Kumar Rai A.I.R. 1922 All. 162 a Bench of this Court held that no co-sharer who had been in physical or actual possession of any part of the joint land was liable to be ejected by any of the other co-sharers except by means of a partition lawfully obtained in a separate proceeding. If these cases apply, then it is clear that the defendant could not be ejected from this land as he had taken peaceful possession of it and cultivated it for at least five years if not longer without objection from anyone. Where a co-sharer has taken possession of land and been permitted to cultivate it for five or six years, the inference is irresistible that he was occupying the land and cultivating it with the consent of the co-parcenary body and of the lambardar. It has been argued however on behalf of the respondents that this case clearly falls within Section 44, Agra Tenancy Act. That section reads:
A person taking or retaining possession of a plot or plots of land without the consent of the landholder and in contravention of the provisions of this Act, shall be liable to ejectment on the suit of the landholder and also to pay damages which may extend to four times the annual rental value at the rates applicable to statutory tenants under Section 59.
6. In my view the defendant was not a person who took or was retaining possession of the land in question in contravention of the provisions of the Agra Tenancy Act. The cases which I have cited show that he as a co-sharer was entitled to take possession of this land if the other co-sharers did not object. There was no objection of any kind and that being so this land became land in his possession and cultivation in excess of his share in the village, that is, his khudkasht land. He can of course be made to account to his other co-sharers for the rental of this land, but on the other hand he cannot be treated as a trespasser and ejected. In my judgment this is not a case which falls within Section 44, Agra Tenancy Act, 1926 and that being so the claim for ejectment was bound to fail and was wrongly decreed by the Courts below. The result therefore is that this appeal is allowed and the decrees of the lower Courts are set aside and the plaintiffs' claim is dismissed in its entirety. Leave to appeal under Letters Patent is granted.