1. This second appeal arises out of a suit in which the plaintiffs-respondents originally claimed damages against certain persons for appropriating a crop in certain fields and also an injunction restraining these people from interfering with their possession. At a later stage there, was a further prayer for possession over the property. The plaintiffs-respondents claimed as mortgagees in possession on the basis of a mortgage deed executed in their favour on 23rd September 1929, by Madan Gopal and Radha Raman. This deed purported to create a mortgage over 5 plots, viz., 160-1, 160-2, 160-3, 160-4, and 160-5 comprising a total area of a little over 5 acres in khewat Pahalwan Singh. It appears that the mortgagors had a share of 1 anna 6 pies in this khewat and had sir rights in the 5 plots which they purported to transfer by the deed which they executed in favour of the plaintiffs. The whole area of land in the mohal was 65.8 acres, so that the area which corresponded with the share of the mortgagors was about 7 acres. In addition to the plots transferred under the mortgage the mortgagors were also in possession of certain other sir plots, the total area of their sir being 13.77 acres.
2. The plaintiffs alleged that they had obtained actual possession over the 5 plots mortgaged to them because their mortgagors had given up their ex-proprietary rights and that they had been in possession and had sown crops and that these crops were appropriated by some of the defendants by force in the absence of the plaintiffs. The persons in pleaded as defendants were originally Mukta Rai, Partaju Rai and Jangi Rai, but as these persons stated that they had nothing to do with the matter, three others, namely Udit Rai, Deanarain Rai and Sahdeo Rai were impleaded later. The trial Court decided that the mortgage was invalid and dismissed the suit. The lower appellate Court came to the conclusion that the plaintiffs were entitled to a decree against Udit Rai, Deonarain Rai and Sahdeo Rai for damages and to a decree for possession against, all the defendants.
3. The first argument which has been addressed is in support of the proposition accepted by the trial Court that the mortgage was invalid and created no rights in favour of the plaintiffs. The suggestion is that the-mortgagors were not the sole owners of the plots which they purported to. transfer and that, therefore they could not transfer them. It is no doubt true where there are several cosharers in a mohal and some one or other of those co-sharers have sir rights, that all the co-sharers are the proprietors of the area comprised in the sir and consequently, that the person whose sir it is, is not entitled to transfer the whole of the proprietary title in the land. It does not seem to me however that it necessarily follows from this proposition that the mortgage was an invalid document. It failed no doubt to transfer such part of the title as did not vest in the mortgagors, but I cannot see why it should be invalid in respect of such part of the title as did vest in them. Madan Gopal and Radha Raman had a share of 1 anna 6 pies in the mohal in which the disputed plots were situated. A co-sharer has a. share in every part of the land of which the mohal consists. As these plots were in the mohal it must be held that Madan Gopal and Radha Raman had a 1 anna 6 pies share in each of them and indeed in every part of each of them. There was no reason why Madan Gopal and Radha Raman should not transfer their shares in these specific plots.
4. It has been argued that a co-sharer may transfer his share in the mohal or a part of his share in the mohal but that he cannot transfer a specific plot and I gather that it is further suggested that he cannot transfer his share in a specific plot. Part of the argument is based on the inconvenience which would arise at a partition if a cosharer was allowed to transfer his share in any specific plot in the mohal. It may be that such inconvenience may arise but the other co-sharers cannot set up a possible inconvenience to them to prevent a person from transferring something which vests in him and which he is otherwise entitled to transfer. One may conceive of a case where two sons may inherit two identical houses from their father. No doubt if they immediately entered into a partition it would be very convenient for them each to receive one of the houses, but that would not prevent one of the sons prior to a partition from transferring his half share with the result that the other son at any subsequent partition might not obtain a whole house. By analogy it seems to me that there was nothing to prevent Madan Gopal and Radha Raman from transferring their 1 anna 6 pies share in the specific plots which they purported to transfer. They could not transfer the whole and in respect of a 14 annas 6 pies share, doubtless, their transfer was invalid, but in respect of a 1 annas 6 pies share the transfer was perfectly valid. It is not necessary to go any further in this case. What I mean is that it seems quite certain to me that a 1 anna 6 pies share in these plots did pass from Madan Gopal and Radha Raman to the plaintiffs-respondents, their mortgagees, and it is unnecessary for me to decide definitely one way or the other whether the remaining share in the plots vested in the plaintiffs or did not vest in them.
5. If a 1 anna 6 pies share vested in the plaintiffs, they were co-sharers in the plots in suit with the defendants-lappellants. It has been argued that the mortgagors could not transfer their sir rights. That is a self-evident proposition. It was not necessary for them to do so and nobody, could hold that the plaintiffs-respondents had any sir rights in the plot in suit. Another argument is that the mortgagors could not relinquish their ex-proprietary rights in favour of the plaintiffs-respondents alone. About this there can also be no doubt, It is however not a question of these rights being relinquished in favour of any particular co-sharer. It has been found on the evidence that the rights were relinquished in the sense that the mortgagors never attempted to enforce them. If those rights were relinquished, they simply disappeared. There was no question of relinquishing them in favour of any particular person. The land simply became like any other land in the mohal to which no particular rights of tenancy occupation attached.
6. It is necessary to have a clear conception of what sir rights really, are. The land over which the sir rights exist is the property of all the co-shares in the sense that they are all owners of it in accordance with their shares. The sir rights are something separate from the proprietary rights. They are an addition to them. The sir holder has certain rights against persons to whom he may lease the land and he has certain rights against the other proprietors, i.e., he is en-entitled to occupy the land personally and to cultivate to the exclusion of the other co-sharers who can do no more than claim their share of the profits from him. If the person who has the sir rights transfers his share as a proprietor, he becomes the ex-proprietary tenant of the land. He is of course the tenant of the whole body of co-sharers because he is a tenant and they are in accordance with their shares the land-holders. If he relinquishes his ex-proprietary rights in the land, that land becomes ordinary land which may be held by a tenant or which may be cultivated by any of the proprietors as his khudkasht. That is the position in the present case. The plaintiffs-respondents are at least co-sharers in the area in dispute with the other proprietors in the mohal. No proprietor has any particular right to occupy the land. The position is explained in the case of Midnapor Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy 1924 P.C. 144.
7. Where there are several co-sharers in the pohal and one of them happens to be in the actual occupation of the land, the other co-sharers are not entitled forcibly to eject him. Similarly, if there is a piece of land which is unoccupied by any co-sharer or tenant, any one of the co-sharers may go into possession and cultivate it. If he does so, the others cannot forcibly eject him. It has been argued in the present case that the mortgagees, i.e., the j plaintiffs, were not entitled to exclude the other co-sharers'. I do not think that this is strictly a case of exclusion. It is a case of actual enjoyment for the time being. If a room is in the possession of tenants-in-common, all the tenants are entitled to every portion of it. But if at any particular time, one of the tenants happens, for example, to be sitting in a chair in the room, it is not open to any of the other tenants to eject him and occupy the chair. The same principle applies to fields in a, mohal. All the co-sharers have a right to use the fields, but if at any time any of them has sown a crop, he is entitled to reap it and the others cannot eject him. They can of course claim profits from him. This is the principle set forth in the case to which I have referred above.
8. The finding of fact in this case is that the mortgagees were peaceably let into possession of the plots in suit upon their exproprietary rights. The mortgagees, i.e., the plaintiffs, were co-sharers and they were in peaceful possession. They sowed a crop and the defendants-appellants forcibly entered the fields and appropriated part of the produce. This they were not entitled to do and it is obvious that they must pay damages, although they in their turn can doubtless get their share of profits, if they institute a suit in the proper Court. It has been suggested that no decree for possession should, be passed in favour of the plaintiffs on the principle which I have enunciated. The essence of the matter however is that a co-sharer is entitled to continue in possession if he has entered peaceably. This does not mean that any other co-sharer who forcibly ejects him is in his turn entitled to retain possession over the plots in dispute. I have no doubt in these circumstances that the decree for possession and damages was rightly granted.
9. There has been a subsidiary argument that the plaintiffs cannot claim to be co-sharers, because the mortgage deed has not been proved. The argument is based on the provisions of Section 68. Evidence Act. It appears that the execution of the mortgage was proved, but not by the production of a marginal witness. Under Section 68 as it now runs, it is not necessary to prove or to produce a marginal witness unless the mortgage is specifically denied. It is obvious that there would be no necessity to prove the deed at all if it was admitted and consequently the section contemplates a distinction between the position where execution is not admitted and a position where execution is specifically denied. In the present case the plaintiffs in the first paragraph of the plaint stated that they were mortgagees under the deed dated 23rd September 1929, and that they had been in possession of the plots in question. The defendants said in their written statement that they did not admit this paragraph. But it is clear from the additional pleas that what they were questioning really was not the execution of the deed but the fact of possession. No issue was framed clearly on the question of execution. In these circumstances it cannot be held that the execution of the mortgage was specifically denied. The mortgage was therefore sufficiently proved. I have been referred to the case of Mansa Ram v. Ancho 1933 All. 521, but this is a case which turned upon a construction of Order 8, Rule 5, Civil P.C., and is no authority for the proposition that a marginal witness must be produced to prove the execution of a mortgage if the execution is not admitted but is not specifically denied.
10. On the question of damages, it has been argued that the plaintiffs are not entitled to any decree. The reason is that they originally alleged that the crop had been appropriated by Mukta Rai, Partaj Rai and Jangi Rai and it was only afterwards that they alleged that it had been appropriated by Udit Rai, Deonarain Rai and Sahadeo Rai. It has been alleged that the three later persons never admitted that they had taken the crop. There is no force in this argument because it is clear enough from the written statement where these persons pleaded that they were in possession of the field that they must have meant that they had taken any crop which was growing upon it because they were the owners thereof. One of them even entered the witness-box in order to give evidence about the value of the crop. It was never contended that there was no crop in the field or that any crop that there may have been was appropriated by other persons. There is no force in the appeal and I dismiss it with costs. Permission to appeal is granted.