BHAGWANT Vs. ARJUN

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by two persons, who allege themselves to be co-sharers, against the other co-sharers for profits for three years. It appears that the different co-sharers are recorded as the owners of certain shares. Sardar Singh and Musammat Hardei, the vendors of the plaintiffs, were recorded in respect of a one-fourth share and it is in respect of this share that they bring the present suit. It appears also that the different co-sharers were in possession of specific plots. There was some khalsa land in the hands of tenants but by an arrangement between the co-sharers two of the co-sharers, namely, Jugla and Bhagwant officiated as lambardars, collected the rent of the khalsa, paid the Government revenue and village expenses and kept the balance themselves to make up their share in the profits of the mahal. The khalsa was very much smaller than the land in the hands of the different co-sharers. Whether this arrangement was a permanent arrangement or an arrangement which depended upon the continued acquiescence of the co-sharers has not been decided in the present suit. The position was practically that the specific land in the separate possession of the different co-sharer s represented at least for the time their shares. The plaintiffs vendors were in possession of some land which was admittedly sir. They were also in possession of some khudkasht which, having; regard to the length of time that they had separately cultivated, stood on the same basis as sir. They were also in possession of some further land which did not come under the definition of sir. After the sale, the plaintiffs took steps to have their vendors assessed with rent in respect of the sir and succeeded in so doing. They neglected to have rent assessed upon that portion of the khudkasht which came under the definition of sir. They took no steps to recover possession of the remaining portion of the khudkasht, with the result that their vendors remained in possession paying rent to no one. The learned District Judge held that the plaintiffs had failed to prove that the defendants had recovered any profits in excess of their share and consequently dismissed the plaintiffs suit. It is admitted here that if in this mahal each co-sharer including the vendors of the plaintiffs were entitled to certain specific plots as their share in the mahal, the plaintiffs suit must fail, because the plaintiffs could be in no better right than their vendors and all that they could get would be the same profits as their vendors got, subject of course to the provisions of the Tenancy Act which provide for a proprietor becoming ex-proprietary tenant of sir. If in the present case the profits of the land which the plaintiffs vendors remained in possession of without payment of rent is entirely left out of count, the plaintiffs have undoubtedly failed to prove that the defendants got profits in excess of their share. If on the other hand the loss that has been sustained in whole or in part by reason of the plaintiffs vendors remaining in possession paying no rent is to be deemed a loss falling on the general body of the co-sharers, then no doubt the other co-sharers did receive more profits than the plaintiffs. The learned Judge of this Court considered that had the plaintiffs attempted to get possession of the land in the possession of their vendors after the sale, they would have failed not only with regard to the land which came under the definition of sir but also in respect of all the rest of the land, and for this reason he has partly decreed the plaintiffs claim. In our opinion it is clearly proved (if not admitted) that at the time of the sale to the plaintiffs, an arrangement existed by which the different co- sharers were entitled to possession of specific plots as representing their shares. Under the circumstances of the present case we consider that the khalsa may be disregarded. Assuming that this arrangement was not of a permanent character, it ought to be deemed to continue until such time as one or more of the co-sharers, by clear notice, intimated to the other co-sharers that the arrangement should cease. It is not pretended that this was done. The co-sharers other than the plaintiffs shall continue in separate possession of specific land. We do not agree with the view taken by the learned Judge of this Court that if the plaintiffs had brought a suit for possession against their vendors, they would have failed in respect of the land which did not come within the definition of sir. In our opinion had they brought a suit for possession in respect of that land, their vendors would have had not answer whatever. In this connection we must refer again to the arrangement which existed between the co-sharers as to separate possession of specific land. The case of Debi Pershad v. Bhagwan Din 16 Ind. Cas. 399; 10 A.L.J. 35 A. 27 was referred to on behalf of the respondents. In that case, no doubt, it was held that the ex-proprietary tenant was tenant of all the co-sharers, but it does not appear that the co-sharers were in possession of specific land as their shares either as a permanent division of the mahal or as a temporary arrangement between the co-sharers. IN our opinion under the circumstances of the present case the other co-sharers cannot be expected to bear the loss which has been occasioned partly by the failure of the plaintiffs to get rent assessed and partly by their allowing their vendors to remain in possession of land, possession of which they were not entitled to hold.

(2.) WE allow the appeal, set aside the decree of the learned Judge of this Court, and restore the decree of the lower Appellate Court with costs in all Courts including in this Court fees on the higher scale.