A co-sharer could institute a suit for recovery of possession of land held by him along with other persons against a trespasser who dispossessed all the co-owners, and that he could obtain a decree for recovery of possession of the entire area, the judgment of the suit, however, not affecting the rights of the other co-owners which would remain intact.

S.C.Misra, J.

1. This is an appeal by the defendants-first-party. It arises out of a suit for a declaration of title and recovery of possession in respect of 7.50 acres of land equivalent to 11 bighas 14 kathas 15 dhurs. The suit was instituted by fourteen sets of plaintiffs and the lands claimed have been shown in twelve schedules. The lands comprised in schedules Nos. 1 to 9 of the plaint were claimed by the plaintiffs first party to ninth party, respectively; the land of schedule No. 10 was claimed by the plaintiffs tenth, eleventh and twelfth parties; the land of Schedule II was claimed by the plaintiff thirteenth party; and the land of schedule No. 12 was claimed by the plaintiff fourteenth party. The suit was instituted for a declaration and recovery of possession, inasmuch as an order was passed against the plaintiffs by the Criminal Court in a proceeding under Sec.145 of the Code of Criminal Procedure. The disputed lands, admittedly, were portions of cadastral survey plots Nog. 29 to 43 and 45. The plaintiffs claimed these schedule lands as aforesaid on the ground that they were portions of the lands held by them under the aforesaid plot numbers comprised in thana No. 40 of village Harnathpur Barari known also as Harnathpur Gan Bhrar.

According to the plaintiffs, the defendants lands, of which they claimed the disputed lands to be portions, were situate in village Harnathpur Taufir. The two villages, although forming part of one tauzi, No. 1323, were separated from each other by a distance of two miles. The area of the village, bearing tauzi No. 40, was 1,046 bighas 2 kathas 13 dhurs. Out of it, 289 bighas and odd were in possession of the tenants at the time of the cadastral survey, and the remaining area of 756 bighas and odd lay in the bed of the river Ganges, and was covered with sand. The area of Harnathpur taufir, tauzi No. 14, was 949.84 acres, out of which 727 acres were in possession of the tenants, while the remaining 220 acres were recorded as gairmazrua. The areas claimed by each set of the plaintiffs have been set out in the schedules to the plaint, and these were recorded, in some cases, as occupancy but generally as gair dakhalkar or non-occupancy raiyati holdings of the ancestors of the plaintiffs. The plaintiff ninth party, however, claimed that he was entitled to Schedule 9 lands on the foot of a settlement by the maliks.

The rights of the parties were specified in the manner that the names of the father of the plaintiff-first-party and the grandfather of the plaintiffs second party and third party and maternal grandfather of the plaintiff fourth party and father of the plaintiffs fifth party and sixth party and an aunt of the plaintiff seventh party and the great grandfather of the plaintiff eighth party and father of the plaintiffs tenth to twelfth parties and maternal grandfather of the plaintiff thirteenth party and uncle of the plaintiff fourteenth party were recorded in the cadastral survey khatain as non-occupancy tenants. The ancestors of the plaintiffs first, second, third, fourth, eight to twelfth and fourteenth parties were recorded as occupancy tenants for ten years standing, while the aunt of the plaintiff seventh party was recorded as a non-occupancy tenant for eight years, the maternal grandfather of the plaintiff fourteenth party was recorded as a non-occupancy tenant for five years, and the fathers of the plaintiffs fifth and sixth parties were recorded as non-occupancy tenants for one year. The plaintiffs claimed to have acquired occupancy rights by continuous possession over the lands till the year 1913, the cadastral survey proceedings having taken place in 1902. The further case of the plaintiffs was that village Harnathpur Barari diluviated near about the year 1913; but, before diluvion, the ancestors of the plaintiffs had already perfected their occupancy right over them.

The case in respect of the plaintiff ninth party was that the land claimed by him was originally rec