JUDGMENT

Bennett, J - This second civil appeal arises out of a suit by the plaintiff, Pt. Shambhu Ratan, against the respondents for joint possession of a plot No. 2703, removal of certain trees planted thereon by the respondents, and for damages amounting to Rs. 71-3-3. The suit was decreed by the trial Court as regards joint possession and removal of the trees and a sum of Rs. 80 was awarded to the plaintiff by way of damages. In first appeal the Civil Judge of Unao accepted the findings of the trial Court, but upheld only the decree for joint possession, setting aside the decree for removal of the trees and for damages.

2. The facts of the case are not in dispute. The plaintiff appellant is a cosharer to the extent of four annas. Of the two respondents, one is a cosharer to the extent of eight annas, and the other to the extent of four annas. The plot was formerly in the cultivation of a man named Mahabir Kachchi on an annual rent of Rs. 63 and the parties realised rent according to their shares. Mahabir vacated the plot in 1338 Fasli, and defendant 1 thereupon took it into his exclusive cultivation. He planted a large number of mango and kathal trees upon it. The map which is appended to the decree of the trial Court shows that the trees were planted on rather more than half of the whole plot. It appears that the appellant first of all brought a suit for rent in the revenue Court. That suit was decreed by the trial Court, but dismissed in appeal to the Deputy Commissioner on the technical ground that the plaintiff should have sued for accounting and for profits and not for rent.

3. The only questions which I have to consider in this second appeal are whether the first appellate Court was right in holding that the appellant was not entitled to the removal of the trees or to damages. On the first question I have been referred to cases in which it has been held that a cosharer is not entitled to alter the nature of the land of which he is in possession by building upon it. This was held by the Allahabad High Court in Inderjit Rai v. Gajadhar Rai, AIR1935All967 and in Bir Ahir v. Bhagwant Prasad, 1935 R.D. 450, It was held in both these cases that the cosharer had a right to sue in the civil Court for joint possession and for demolition of the building. No question of damages arose in these cases.

4. On the second point I was referred first of all to a case of the late Court of the Judicial Commissioner, of Oudh, namely, Sri Ram v. Ram Pargash, A.I.R. 1916 Oud 316 Here the parties were under-proprietors holding specific shares in a certain area within the mohal and it was held that a suit between them for joint possession or for mesne profits in respect of khudkhasht land wrongfully withheld was not excluded from the jurisdiction of the civil Court. In that case the defendants were not holding possession over the land in dispute as cosharers, but as the representatives of mortgagees whose rights were determined by a previous decree for redemption. Reference was made in that case to Clauses (6) to (13) of Section 108, Oudh Bent Act, as applicable to suits by under, proprietors, and to Clauses (15) to (18) of the same section as applicable to cosharers and muafidars. It was said that a suit for damages against a mortgagee, who retains possession over the mortgaged property in spite of redemption, albeit he be a cosharer of the mortgagor in the under-proprietary rights forming the subject-matter of the mortgage, is therefore cognizable by the civil Court. It is clear that this case can be distinguished from the case under consideration where I have merely to consider whether one cosharer can claim damages against another cosharer. It is not disputed that the plaintiff -appellant could have sued for profits under Clause (15) of Section 108, and I think therefore that a claim for damages on the basis of profits cannot be made by him in the civil Court. Another case on which the learned Counsel for the appellant relies is, 26 All. 5