A cosharer in separate possession of the common land without objection from, or ouster or exclusion of, the other cosharers, is under no obligation either to account or to pay compensation to such cosharers 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.

Ramaswami, J.

1. These appeals are presented against the judgment of the Addl. Subordinate Judge, Patna.

2. The question to be examined in these appeals is whether the pltfs. are entitled to recover compensation for their share of the produce of the land in dispute for the years 1348 to 1350 Fasli from the various defts. To enable this question to be considered, it is necessary to state the material facts so far as they are proved or admitted. The pltfs. alleged that 00.28 acre of khata No. 4, 01.50 acres of khata No. 27 & 29.83 acres of khata No. 3 were undivided bakasht land which belonged to the sixteen annas maliks ; that the defts. were to cultivate the land & to divide to (sic) the pltfs their share of the produce. Defendants 1 to 7 contested the suit on the ground that khata No. 4 was not the bakasht land of the sixteen annas landlords. As regards khata No. 3, the defta. asserted that excepting 00.95 acre the entire area was divided amongst the maliks before the survey & the possession of the different maliks was noted in the record-of-rights. As regards .95 acre of khata No. 3 & 1.64 acres of khata No. 27, it was stated that these lands were also divided amongst the maliks before the survey had taken place. The defts. therefore, denied that the pltfs. were entitled to compensation representing any share of the produce. The learned Munsif, upon a consideration of the evidence, held that the pltfs. were entitled to a decree for compensation.

3. In appeal, the learned Subordinate Judge reversed the decree of the Munsif holding that the pltfs. were not entitled to recover any compensation from the defts. The learned Subordinate Judge found (1) that khata No. 4 was not the bakasht land of the sixteen annas landlords, but defta. 12 to 14 alone were entitled to cultivate it; (2) that as regards khata Nos. 3 & 27, there is no complete partition, but the maliks were cultivating the land separately by some kind of mutual arrangement and (3) that defts. 1 to 7 were in possession of more than 14 acres of bakasht land, though, as a matter of fact, they were entitled to hold about 12 acres according to their sixteen annas milkiat share. After reaching at this finding of fact, the lower appellate Ct. considered that the pltfs. were not entitled to a decree for compensation because there was no proof that the defts cosharers had excluded the pltfs. or ousted them from their possession or had challenged their title to the joint possession of the land of which they were tenants-in-common.

4. In support of these appeals, learned counsel for the appellants stressed the argument that since defts. 1 to 7 were found in possession of more than their proper share of the bakasht land, the pltfs. were entitled to a decree, though there was no ouster or exclusion alleged in the plaint. Learned counsel referred to the cases of the Midnapur Zamindary Co. Ltd. V/s. Naresh Narayan, 29 0. W. N. 34 : (A. I. R. (11) 1924 P. C. 144) & Watson & Go. V/s. Bamchund Dutt, 18 Cal. 10 : (17 I. A. 110 P. C.) in supporb of his argument. But the facts of these cases are manifestly different from those of the present ease. In case of those cases the cosharer was held entitled to a decree for compensation or mesne profits because the defts. cosharers had excluded him or ousted him from possession or had impeached his title to the joint possession of the land of which they were cosharers. Learned counsel referred to the following passage in The Midnapur Zamindary Go. Ltd. V/s. Naresh Narayan, 29 C. W. N. 34 at p. 40 : (A. I. R. (ll) 1924 P. C. 144) :

"Where the lands in India are so held in common by cosharers, each cosharer is entitled to cultivate in his own interests in a proper & husband-like manner any part of the lands which is not being cultivated by another of his coaharers, but he is liable to pay to his cosharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a cosharer is not an ouster o