JUDGMENT Lindsay and Kanhaiya Lal, JJ.
1. The dispute in this appeal relates to certain plots of land, situated in the village Nemi Amna, Pargana Sylhet, The plaintiffs are some of the co-sharers of that village. The defendants are also co-sharers in the same village.
2. In the year 1898, the said village was partitioned by the Government and lots were prepared by virtue of which the plots in dispute were allotted to the mahal to which the predecessors in title of both the parties belonged. The allegation of the plaintiffs was that after the said partition the plots in question had been in the joint khudkasht cultivation of the predecessors of the parties, and that the predecessors in title of the plaintiffs and the defendants jointly cultivated the said plots till 1318 Fasli. It was also stated that after the said year a person named Thagai was put in cultivatory possession of the said plots on behalf of the above parties; that he continued in cultivation till 1321 Fasli, and that the plaintiffs thereafter resumed possession. The plaintiffs further said that after Thagai had surrendered his possession, the plaintiffs cultivated the disputed land, and that the defendants wrongfully cut the crops standing thereon. They, therefore, sued for possession of the said plots and damages.
3. The defendants denied that the disputed plots were the khudkasht land of the plaintiffs. They said that the land in question had been in the exclusive possession of the defendants; that Thagai was their tenant and had a right to surrender possession to them and that the plaintiffs were not entitled either to a decree for possession or to damages.
4. The trial court found that the land in dispute was the joint khudkasht of Sital Singh, the predecessor in title of the defendants, and the present plaintiff; that it was under the cultivation of Thagai on behalf of both, and that the plaintiffs were not entitled to possession or damages. The claim for possession and damages was accordingly dismissed. On appeal that decree was upheld. The lower appellate court similarly came to the conclusion that the parties had a right to cultivate the disputed land and that the possession of Thagai was on behalf of the plaintiffs and the predecessors in title of the defendants.
5. It is urged on behalf of the plaintiffs appellants that they were entitled to a decree for joint possession, inasmuch as, according to the courts below, the disputed land was in the joint cultivation of the predecessors of both the the parties till 1318 Fasli, and that Thagai was is possession subsequently on behalf of them. The decisions on which the plaintiffs rely in support of their contention have been considered by us in another case, Bisheshar Singh v. Hanuman Singh (1921) Supra p. 1, which was referred to a Bench along with this case, and we are of opinion that on the findings arrived at the plaintiffs are entitled to a decree for joint possession, because they had been in actual physical possession of the plots till 1318 Fasli and Thagai was thereafter cultivating the said khudkasht land on behalf of both the parties.
6. As pointed out by their Lordships in the case of Watson and Co. v. Ramchund Dutt (1890) I.L.R. 18 Calc. 10, no co-sharer, who has been in physical or actual possession of any part of the joint land, is liable to be ejected by any of the other co-sharers in the village except by means of a partition lawfully obtained in a separate proceeding. Every co-sharer has a right to the beneficial enjoyment of the joint land so long as he does not thereby disturb the actual physical possession held by another co-sharer from before; but where another co-sharer is in such possession, he can only get symbolical possession of the nature referred to in Order XXI, Rule 35, of the Code of Civil Procedure. The plaintiffs and their predecessors in title have been in actual possession of the disputed land jointly with the defendants by holding the same as their khudkasht for some years and letting it out to Thagai afterwards. The defendants had no right to oust them from the land when Thagai surrendered it, and they are entitled to a decree for joint possession in addition to a decree declaring their joint rights which the courts below have granted. The claim to profits by way of damages cannot be entertained, for such profits can be taken into consideration when the annual accounts of the village income are adjusted.
7. The appeal is, therefore, allowed and the decree of the courts below is modified in so far as we allow a decree for joint possession to the plaintiffs of the disputed land, in addition to the reliefs granted by the courts below. The parties will bear their own costs in this Court.