The possession of one co-owner is deemed to be possession of all co-owners.

S.B. Sinha, J.

This first appeal arises out of a judgment and decree dated 23.2.1980 passed by Sri Jiwan Tigga, Addl. Sub-Judge, 2nd Court, Dhanbad, in Title Suit no. 60/35 of 1968-79, whereby and whereunder the said learned court dismissed the plaintiff/appellants suit inter alia, on the ground that the same was not maintainable.

2. The plaintiff/appellants filed the aforementioned suit for a declaration to the effect that the plaintiffs no. 1 to 3 have 2/5th share and plaintiffs no. 4 and 5 have 1/5th share in the properties in suit which are tanks and as have been described in details in the schedule appended to the plaint.

3. The plaintiffs/appellants filed the aforementioned suit alleging inter alia, there that the two tanks in question namely Bara Bandh Joria Bandh and Ojha Bandh @ Geruabandh were recorded under Khewat Nos. 19/6 and 47/6 of Mouzas Bagmara and Ranipokha respectively. The plaintiffs alleged that one Nilmani Ojha and Ors. of Ranipokhar had been in possession of the suit tank in their permanent Brahmottar right. Nilmani Ojha and Ors. made permanent settlement of the said tanks with heritable right with Raju Dhibar, Mahindi Dhibar, Kirtan Dhibar, Sadu Dhibar and Kamini Jelani for rearing and catching fish by reason of a registered deed of Patta dated 6.6.1922 and the lessees also executed a registered Kabuliyat in favour of the lessees and thereafter the said lessees came in possession thereof. It is alleged that all the co-sharers had equal share and that Mahindi Dhibar had 1/5th share therein as Mahindi Dhibar predeceased his father, upon death of Raju Dhibar 2/5th share was inherited in relation to the said tanks by the plaintiffs no. 1 to 3. It is further alleged that Raju Dhibar died 30 years ago and since then the plaintiffs had been in possession of the said tanks with other co-sharers. It is further alleged that Kamini Jelani died 28 years ago and her 1/5tn share was inherited by her husband's brother's sons, who are plaintiff nos. 4 and 5 and they are also in possession jointly with other co-sharers. It is further alleged that Sadu Dhibar died 25 years ago and his 1/5th share was inherited by his daughter Nishada, who also died 3 years ago and her 1/5th share was inherited by her son Mathna Dhibar defendant no. 15 and her daughter Kamala Dhibarani, defendant no. 16.

4. It is further the case of the plaintiffs that Kirtan Dhibar died on 20.2.1968 and his 1/5th Share was inherited by his son defendant no. 13 and daughters defendants nos. 18 to 20.

5. It was further alleged that the defendant nos. 1 to 3 in collusion with the aforementioned Kisto Dhibar filed a suit being Title Suit no. 150 of 1962 against Kirtan Dhibar and others in the court of Munsif 2nd court, Dhanbad for declaration of title to the extent of 12 annas share in the tanks in question.

6. The said suit was dismissed and the plaintiffs thereof preferred an appeal which was registered as Title Appeal no. 92/65. In the said appeal a compromise petition was filed on 8.6.1967. By reason of the said compromise petition, the defendant no. 6 thereof admitted 12 annas share in the plaintiffs/appellants of the said suit/appeal who are defendant nos. 1 to 3 in Title Suit no. 60/68. According to the plaintiffs, the compromise decree passed in the aforementioned Title Appeal no. 92/65 was not binding upon them and as such they filed the aforementioned suit for declaration.

7. The contesting defendants filed separate written statements infer alia taking the plea that as the plaintiffs had not been in possession of the tanks in suit, the same was not maintainable.

8. Mr. T.K. Das, learned counsel appearing on behalf of the plaintiffs/appellants drew my attention to the judgment of the trial court and submitted that learned court below had accepted the fact that Kirtan Dhibar had all along been in possession of the tanks in question. He, therefore, submitted that in view of the fact that the learned trial court has arrived at a finding that Kirtan Dhi