Page, J.:— This is a suit brought by co-sharers against another co-sharer of immovable property to recover compensation for the occupation by the defendant of more than his share in the land of which all the co-sharers are tenants-in-common. The appeal depends upon an issue of fact, for when that issue has been decided the Court will be enabled to determine whether this particular case falls within the ambit of decisions such as Watson and Company v. Ram Chund Dutt(2), Robert Watson & Co., Ltd. v. Ram Chand Dutt(3), Midnapur Zamindary Company, Limited v. Naresh Narayan Roy(4), or within the principles laid down in Lachmeswar Singh v. Manowar Rossein(5), Mahesh Narain v. Nowbat Pathak(6), Debendra Narayan Singha v. Narendra Narayan Singha. Now, it has been found or admitted that the defendant was in possession of land in excess of the share that he would receive on partition; that the plaintiffs have never sought joint occupation of the land; and that no objection has been raised by the plaintiffs to the occupation of the land by the defendant. The defendant has not claimed any exclusive right of possession, or any title by adverse possession as against the plaintiffs. In the circumstances it cannot be pretended that the defendant has been in occupation of this land after excluding or ousting the plaintiffs from their right to joint possession thereof with him. Nevertheless, the plaintiffs claim that, inasmuch as the defendant admittedly is receiving profits by reason of his occupation of the land, he is bound to account to the other co-sharers for such portion of the profits arising from his separate occupation as the Court deems to be fit compensation to them for not being in actual, joint occupation of the land. Now, where co-sharers are entitled to joint possession of immovable property as tenants-in-common each of such co-sharers is entitled to be in possession of each and every part of the common land. But for the purpose of the profitable occupation of the joint property it usually happens that some of the co-sharers are found to be in occupation of some portions of the land, and other co-sharers of other portions; and it is. I think, clearly established that where one co-sharer is in separate possession of the common land (whether or not the portion of the land which he is occupying is in excess of the area that would fall to him upon partition) without objection from, or ouster or exclusion of, the other co-sharers, he is under no obligation either, to account or to pay compensation to such co-sharers in respect of the profits which have accrued to him by reason of the skill or industry which he has employed in making good use of the property while he was in possession. If the law were otherwise it would put a premium upon sloth, and all that a co-sharer need do would be to allow a more industrious co-sharer to spend time, money, and energy upon the land of which they we tenants-in-common, and, having lain by until the profits of his industrious co-sharer have been gathered, to claim a share of the profits for the accrual of which he can claim no credit, and which in no way are due to any skill or labour on his part. Upon what principle of fairness or common sense is such a co-sharer entitled to claim compensation from the co-sharer in occupation? I can think of none. And I am fortified in this view when I look at the other side of the picture. Suppose an industrious co-sharer, while in separate occupation of the common land with the consent express or tacit of the other co-sharers, suffers a reversal of fortune, and notwithstanding all his efforts a loss accrues to him as the outcome of his occupation; can he claim from his co-sharers a proportionate contribution towards the loss that he has suffered? Clearly not. On the other hand, if a co-sharer, notwithstanding an objection from the other co-sharers, claims an exclusive right to occupy a portion of the land of which they have a common right of possession, or excludes or ousts from possession the other Co-sharers, it is equally clear, in my opinion, that he will have to pay compensation to the other co-sharers for any profits that they may be held to have lost by reason of his exclusive occupartion of the common land. In Henderson v. Eason.
Parke B. laid down that
“If one tenant-in-common occupied, and took the whole profits, the other had no remedy against him while the tenancy-in-common continued unless he was put out of possession, when he might have his ejectment, or unless he appointed the other to be his bailiff as to his undivided moiety, and the other accepted that ???, when an action of account would lie, as against a bailiff of the owner of the entirety of an estate.”
His Lordship further observed that
“There are obviously many cases in which a tenant-in-common may occupy and enjoy the land or other subject of tenancy-in-common solely and have all the advantage to be derived from it, and yet it would be most unjust to make him pay anything. For instance, if a dwelling house, or barn, or room, is solely occupied by one tenant-in-common, without ousting the other, or a chattel is used by one co-tenant-in-common, nothing is received; and it would be most inequitable to hold that he thereby, by the simple act of occupation or use, without any agreement, should be liable to pay a rent or anything in the nature of compensation to his co-tenants for that occupation or use to which to the full extent to which he enjoyed it he had a perfect right.”
Parke B. also stated that
“There are many cases where profits are made, and are actually taken by one co-tenant, and yet it is impossible to say that he has received more than comes to his just share. For instance, one tenant employs his capital and industry in cultivating the whole of a piece of land, the subject of the tenancy, in a mode in which the money and labour expended greatly exceed the value of the rent or compensation for the mere occupation of the land; in raising hops, for example, which is a very hazardous adventure. He takes the whole of the crops and is he to be accountable for any of the profits in such a case, when it is clear that, if the speculation had been a losing one altogether, he could not have called for a moiety of the losses, as he would have been enabled to do had it been so cultivated by the mutual agreement of the co-tenants”?
It is necessary, however, to appreciate the meaning of the terms “exclusion” and “ouster” in this connection. To exclude is to “keep out”, to oust is to “put out”, of possession. But it is not essential to prove physical dispossession in order to establish an ouster. For ouster and exclusion may be actual or constructive, and whenever a co-tenant remains in separate occupation in defiance of a claim to joint, possession asserted by his co-sharers, and thus prevents them from obtaining possession, he is deemed to have excluded or ousted his co-sharers. Separate occupation by one co-sharer, therefore, is not necessarily exclusive occupation; it may, or may not, be according to the circumstances that are proved, and each case will turn upon its own facts. In Watson & Co. v. Ram Chund Dutt, Robert Watson & Co., Ltd. v. Ram Chand Dutt, Midnapur Zamindary Company, Limited v. Naresh Narayan Roy, a co-sharer who claimed a right to compensation or mesne profits was held to be entitled to a decree because the defendant co-sharers had excluded or ousted him from possession, or had challenged his title to joint possession of the land of which they were tenants-in-common. The learned vakil for the respondents placed much reliance upon the following passage in the judgment of the Privy Council in the Midnapur Zamindary Company, Limited v. Naresh Narayan Roy.
“Where lands in India are so 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 the 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-shavers from their proprietary right as co-sharers in the lands”.
But when the facts of that case are ascertained it is found that for many years the Midnapur Zamindary Company or their predecessors-in-title had repudiated the title of the plaintiff co-sharers to joint possession of the land in dispute; and in that suit had resisted the plaintiffs' claim, and had challenged the plaintiffs' title, both upon the ground of adverse possession, and also because they had purchased in execution of a decree a jote which they themselves had granted in respect of a part of the land of which they were entitled to joint possession with the plaintiffs. The passage to which we have been referred must be read in connection with the facts of that particular case, and, in my opinion, is not to be taken as in any way conflicting with the principles of law that we have endeavoured to restate. When these principles are applied to the facts of the present case the solution of the problem presents no difficulty, for the plaintiffs, have not asserted a claim to joint occupation of the land in dispute; they have not objected to the defendant being in occupation of such land; and they have neither been excluded nor ousted from possession of the land by the defendant. What they claim is a share of the profits which have resulted from the defendant's occupation of the land. In the circumstances obtaining in this case it is, in my opinion, clear that the plaintiffs' claim is misconceived, and, if they are not content with the manner in which the co-sharers are enjoying and occupying the land of which they all are entitled to possession as tenants-in-common, their remedy is to proceed by way of partition.
The result is that the appeal is allowed, and the plaintiffs' suit is dismissed with costs in all the Courts.
Graham, J.:— I agree.
B.M.S
Appeal allowed.