1. The point which I have to determine in this appeal is whether a cosharer landlord is entitled to recover compensation for use and occupation from a tenant inducted into the land by another cosharer landlord. The appellant is the two annas proprietor of a certain mahal of which the Indigo Concern at Manjhowl is also a proprietor to the extent of 3 pies share therein. The lower appellate Court says that the Factory let out the lands to the defendants at a time when the plaintiff had acquired no right. This is wrong, as the sale certificate produced by the plaintiff shows. We may take it therefore that the Factory settled the land with the defendants without the consent of the plaintiff although the Factory had only 3 pies share in the mahal. The problem that I have to cosider is, what is the plaintiff's remedy.

2. Now the plaintiff's suit is not a suit against his co-owner, the Factory, for compensation for the exclusive use of the joint land according to the plaintiff's share in such land. It is not a suit for ejectment of the defendants or for joint possession with the defendants on the ground that so far as the plaintiff's share is concerned, the Factory was not entitled to induct tenants against the will of the plaintiff. As I read the plaint, the suit is a suit against the tenants for compensation for the use and occupation of his share of the land.

3. In England it is well established that it is not trespass for one co-owner to use the common property in the natural and necessary course of use or enjoyment: see Job v. Potion(1). In the case of Jacobs v. Sewards(2) the point was investigated with great care and precision by Lord Hatherly who, in the course of his speech, said:

“The cases in which trover would lie against a tenant-in-common are reducible to this. They are cases in which something has been done which has destroyed the common property, or where there has been a direct and positive exclusion of the co-tenant in common from the common property, he seeking to excercise his rights therein, and being denied the exercise of such rights……. As long as the tenant-in-common is confining the use of that property to its legitimate purpose trover will not lie against him. But the moment he steps from the legitimate use to that which is illegitimate trover will lie.”

4. This principle of English law is founded on the doctrine that the act of one tenant-in-common is considered in law as the act of all the tenants-in-common, and this because the occupation (as is said in Co. Litt. 189a) is undivided. So strict was the rule at common law that before the Statute of Anne, the other tenants-in-common could not charge the tenant-in-common who had received the profits as bailiff, though in equity a co-owner who had received the profits was always bound to account at the suit of the others: see Strelly v. Winson(3).

5. We may therefore take it as settled law in England that, if the land is agricultural land, one co-owner would be entitled to enter upon the land and to use the common property in the natural and necessary course of use or occupation without subjecting himself to an action in trespass by the other co-owners, the only restrictions upon him being that he may not appropriate to himself more than his share. But would he be entitled to induct tenants upon the land who would, no doubt, use the common property for agricultural purpose? The case of Wilkinson v. Haygrath(4), which no doubt was decided on a question of special pleading, certainly suggests that he would be so entitled. Coleridge, J., said in that case: “it must be admitted on the part of the plaintiff that the tenant” (meaning thereby a ten-ant-in-common) “might license the doing of whatever he might do himself.” The point was expressly decided in the case of Job v. Potton, and I think it was decided by implication in the case of Jacobs v. Sewards. I cannot see on what ground it may be said that though a co-owner may himself enter the land and use it in the natural and necessary course of use or occupation, he cannot induct a tenant on the land for the purpose of using the land in the natural and necessary course of use or occupation. The test in either case is, to what use has the common property been put? If it is used in good husbandry for the proper cultivation of the land, not in denial of the title the other co-tenants but with the object of making a profit out of the land, the other co-owners would appear to have no right to maintain an action in trespass either against the co-owners or against a third party who by leave and license of the co-owner is carrying on agricultural operation on the land.

6. The question as to the right of the co-owners as between themselves was debated in the leading case of Watson & Co. v. Ramchand Dutt(5). The Judicial Committee in that case for the first time laid down the law as follows:

“It seems to their Lordships that if there be two or more tenants in common, and one A be in actual occupation of part of the estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property and another tenant in common, B, at tempts to come upon the said part for the purpose of carrying on operations there inconsistent with the course of cultivation in which A is engaged and the profitable use by him of the said part, and A resists and prevents such entry, not in denial of B's title, but simply with the object of protecting himself in the profitable enjoyment of the land, such conduct on the part of A would not entitle B to a decree for joint possession.”

7. In the result their Lordships granted B a decree for compensation for the exclusive use of the joint land by A according to B's share in the joint land. The principle of the decision was a and affirmed by the Judicial Committee in the case of Lachmeswar Singh v. Manowar Hossein(6). From the principle enunciated in these cases to the principle that when one cosharer landlord in poss session of common land leases it out to a tenant who improves it without any objection on the part of the other 3 co-sharer landlords, it is not open to the latter to obtain khas possession of the land so improved jointly with the tenant, was but a step and that step was take in the case of Madan Mohan Shahu v. Rajib Ali(7). But it was held in the case of Radha Prosad Wasti v. Esuf(8) that:

“no man has a right to intrude upon ijmali property against the will of the cosharers or of any of them. If be does so, he may be ejected without notice, either altogether, if all the co-sharers join in the suit, or partially, if only some of the cosharers wish to eject him, and the legal means by which such a partial ejectment is effected, is by giving the plaintiffs possion of their shares jointly with the intruder.”

8. At first sight it would seem as if this case is in conflict with the principle which I have deduced from the English cases and upon which, in my opinion, the cases of Watson & Co. v. Ramchund Dutt was decided. But there is in fact no conflict when the cases are closely examined. A co-owner of agricultural land has the right to enter the land or authorize somebody else to enter the land, not in denial of the rights of other co-owners, our in exercise of his own right to cultivate the land. He is en-titled to protect himself in the profitable use of the land but, apart from that, he is not entitled to exclude the other co-owners from entering the land for the purpose of cultivation. The other co-owners or their tenants are entitled to a decree for joint possession, unless such joint possession interferes with the profitable use of the land by the co-owners first in the field or unless the co-owner of his tenant has improved the land without any objection on the part of the other co-owners. The principles which I deduce from the cases are the following:

(a) It is not trespass for one co-owner A either by himself or by his tenants to use the common property in the natural a necessary course of use or enjoyment. The remedy of the other co-owner B is to sue A, but not his tenants, for compensation according to his share, for the exclusive use of the common property by A. (b) A is entitled to protect himself in the profitable use of the land as to which he is accountable to B, but he is not entitled to exclude B or his tenants from entering the land and carrying on agricultural operations in a way consistent with the continuance of the joint ownership and possession, (o) As a necessary corollary, B or his tenants is or are entitled to maintain a suit for joint possession either with A or his tenants, unless such joint possession interferes with the profitable use of the land by A or unless A or his tenants has or have improved the land to the knowledge of and without any objection by B.

9. In the case before me the plaintiff I does not ask for a decree for joint possession, nor deed he seek to recover compensation according to his share from the factory for the exclusive use of the land by the Factory. In my opinion these were the only remedies open to the plaintiff, unless indeed he chose to recognize the defendant as his tenant, in which case he could maintain an action for rent against the defendant.

10. In my opinion, an action for compensation does not lie against the defendant. An action for compensation is an action in tort and in every action in tort the plaintiff must allege a right in himself which, according to him, has been infringed, and a corresponding duty on the defendant, which duty has been broken. There is, in my opinion, no duty cast on the defendant to pay compensation to the plaintiff, but there is undoubtedly a duty cast on the factory to account to the plaintiff for the profits made by it by settling tenants on the land. It seems to me therefore that the plaintiff entirely misconceived his remedy. In my opinion this appeal fails and must be dismissed with costs.

11. This judgment will govern all the analogous appeals and also Second Appeal No. 1089 of 1917 and the appeal analogous thereto.

V.S/R.K

12. Appeals dismissed.