A co-owner in possession of joint property is not liable to pay compensation to other co-owners for use and occupation in the absence of an agreement or illegal possession.

1. - These are two connected appeals directed against the appellate judgment and decree by the Civil and Additional Sessions Judge No. 3, Jaipur City dated 9.1.1967.

2. The property in dispute which is situated in Ramganj Bazar, Jaipur originally belonged to one Abdul Rehman, who mortgaged it in favour of Mohammad Saddiq in consideration of a sum of Rs. 500/- on 22.4.1907. Both Abdul Rehman as well as Mohammad Saddiq died and after their death Abdul Latif and two others claiming to be the heirs of Abdul Rehman filed a suit for redemption of the property against the heirs of the mortgagees. That suit was decreed on 29.9.1939. The property was in possession of Mohammad Ibrahim and Mohammad Ismail-defendants at the time of the said decree as tenants of the mortgagees. Consequently in the course of execution Abdul Latif was not able to obtain actual possession of the property, but was granted symbolical possession on 27.1.1941. However, before the symbolical possession was ganted to Abdul Latif, Mohammad Ibrahim and his brother Mohammad Ismail also filed a suit which was registered as Civil Suit No. 204 of Samvat 1998 in the Court of Munsiff (East), Jaipur against Abdul Latif & others for declaration that as heirs of the deceased-mortgagor Abdul Rehman they were entitled to get a share equal to annas five in a rupee in the suit property. This suit was decreed on 30.9.1942 by the trial court (vide judgment Ex. A. 6) The appeal filed by Abdul Latif was dismissed, but in the second appeal a compromise was arrived at between the parties, a copy of which has been placed on the record and marked Ex. 9. On the basis of this compromise a decree was passed on 21.4.1949 by which the share of the defendants in the disputed property was determined as annas five and that of Abdul Latif and other was annas eleven. Thus the share of Mohammad Ibrahim and Mohammad Ismail in the redemption money was determined as Rs. 166.25 paisa. For about 9 years Abdul Latif-plaintiff in the present case did not take any steps for getting possession of the property from the defendants, but gave a notice on 7.10.1958 to the defendants calling upon the latter to pay to him compensation for use and occupation of the property in dispute. This notice was repudiated by the defendants by their reply dated 17.10.1958. Thereafter the present suit was filed by Abdul Latif on 4.12.1958 claiming Rs. 900/- on account of compensation for use and occupation of the property in dispute at the rate of Rs. 25/- per month for a period of three years, i.e. from 4.12.1955 to 4.12.1958.

3. The suit was resisted by the defendants, who pleaded that the plaintiff was entitled to get Rs. 166.25 paisa only as the defendants' share of the redemption money paid by the plaintiff. During the pendency of the suit the defendants deposited the said amount of Rs. 166.25 paise in the court on 1.3.1962 but the plaintiff did not accept the same.

4. The learned Munsiff dismissed the suit holding that the plaintiff was entitled only to share worth annas eleven in a rupee. But there was no evidence that the defendants had ever agreed to pay rent to the plaintiff and further that the defendants were in possession of the suit property as co-owners and were consequently not liable to pay any rent or damages for use and occupation of same.

5. Aggrived by the judgment and decree by the trial court Abdul Latif filed appeal. He died during the pendency of the first appeal and consequently his legal representatives were brought on the record. The learned Civil and Additional Sessions Judge No.3, Jaipur City by his judgment dated 29.1.1967 set aside the decree and judgment of the trial court and decreed the plaintiff's suit to this extent that the plaintiff would be entitled to rent for the premises in dispute at the rate of Rs. 10/- per month and a decree for Rs. 360/- was granted on this basis upto the date of the suit.

6. Both the parties are dis-satisfied with the judgment and decree by the learned Civil