P L D 1952 Dacca 267 (PLP)

Syed Amjad Hossain for Opposite‑Party No. 1. CHOWDHURY, J.‑

This Revision Case arises out of a suit for damages against forcible reaping of paddy by the defendants from the plaintiffs land. Plaintiffs' case, shortly stated, is as follows :‑The disputed Cadastral Survey plot No. 416 originally belonged to one Kokil Mondal and plaintiffs got a patta from Kokil Mondal in respect of the land of suit plot and other plots. By amicable arrangement plaintiffs possessed '39 decimals of land from the middle of the Cadastral Survey plot No.

416. During the Revisional Survey operation the Cadastral Survey plot has been splitted up into two Revisional Survey plots Nos. 622 and 623 and the plaintiffs possessed the eastern half ('39) of Revisional Survey plot No. 622 from long time and grew paddy in the year in dispute, that is, 1353 B. S. Defendants Nos. 1 to 4 got a patta from the wife of Kokil Mondal and instituted a title suit against the plaintiffs and others, claiming Cadastral Survey plot No. 416 along with other lands and got a decree for joint possession of only '39 decimals of land out of the suit plot (that is Cadastral Survey plot No. 416) with the plaintiffs and others. They took delivery of possession to the extent of their decretal undivided share (that is '39 decimals of land) in and out of Revisional Survey plot No. 622 on the western half, after evicting Shama Charn Paroi but plaintiffs' possession in respect of the eastern half of Revisional Survey plot No. 622 was left undisturbed Plaintiffs grew the disputed paddy on the eastern half of that plot No. 622 which the defendants forcibly cut and took away on the 26th Kartic 1354 B. S. Hence the plaintiffs instituted the suit for damages claiming Rs. 120 as the price of 10 Mds. Of paddy and Rs. 20 as the price of straw, in all Rs.

140. The suit was contested by the defendant No. 1 who denied the allegations in the plaint and asserted that the suit was not maintainable without a suit for partition and that the plaintiffs were never in possession of '39 decimals of land as alleged by them and never grew paddy. He also denied that they have got a decree for any specific portion of land in Title Suit No. 305 of 1943 and delivery of possession only of a portion of the land after evicting Shama Charan Paroi and others. Trial Court dismissed the suit holding that the defendants being a co‑sharer by a decree of a Civil Court had right, title and interest in every inch of the suit plot so long as it was not specifically allotted to different co‑sharer's by a regular parti tion suit and the plaintiffs cannot claim damages from the defendants who are co‑sharers of the plaintiffs for use and occupation of the entire plot including the share of the plaintiffs exclusively. Trial Court also held that the plaintiffs failed to prove that they continued to be in possession even after the alleged cutting away of paddy by the defendants in Kartic 1354 B. S. and as such they were not entitled to get damages. On appeal, the lower appellate Court reversed the judg ment and decree of the trial Court and decreed the suit holding that even if the evidence of possession of the plaintiffs after the date of the alleged forcible cutting away of the paddy and on the date of the suit was not sufficient, the plaintiffs were entitled to get a decree for compensation on the principle that a co‑sharer who was in possession of a common land to the exclusion of the other co‑sharers was under an obligation either to account or to pay, compensation to them in respect of the profits earned by him by his own industry and that the nature of damages for exclusion of common properties was the nature of compensation as between the cq‑sharers and the suit was maintainable. Against the judgment and decree of the lower appellate Court, the defendants have come up before this Court in revision. Mr. Syed‑Amjad Hossain, the learned Advocate, took a preliminary objection that present revision was not maintain able because a second appeal would lie against the decision of the lower appellate Court, and, therefore, revision .under section 115 was barred. On the other hand, Mr. Azizul Islam, the learned Advocate, contends that certainly it is a suit of the nature cognizable by the Court of Small Causes contemplated in section 102, Civil Procedure Code but the suit is not main tainable in the Court of Small Causes because the suit of this nature is excepted from the Court of Small Causes under Art. 35 (ii) and had not the suit been excluded under that Article, certainly the suit would have been maintainable in the Court of Small Causes, and, therefore, section 102 would be a bar to a second appeal. I am unable to accept the contention of Mr. Islam that it is a suit of the nature cognizable by the Court of Small Causes and the nature of the suit has not been altered because it is excepted by Article 35 (ii) of the Pro vincial Small Cause Courts Act. When a suit is excluded from the Small Causes Court by the Schedule of the Act it is not a suit of the nature cognizable by the Court of Small Causes and section 102 of the Code of Civil Procedure will not be a bar for filing a second appeal and the revision application not maintainable. As regards the merit, Mr. Islam contended that the defen dants being co‑sharers they were not liable to pay compensa tion by way of damages to the other co‑sharers, the plaintiffs, because they got a right to every inch of land and to possess the same for which they were not accountable to their co sharers. I am unable to accept this contention. No doubt a co‑sharer is entitled to possess whole of the land but that does not mean that he can dispossess another co‑sharer in posses sion and is not liable to pay to his co‑sharer damagm for forcibly cutting away the paddy grown by him and compensa tion in respect of such an exclusive use of the land. Plaintiffs case is that the defendants forcibly took away the paddy grown by the plaintiffs. The defendant No. 1 also admits that they are now in exclusive possession of the same. We have seen already that the defendants were not in possession of the disputed plot for which they had to institute a suit being Title Suit No. 305 of 1943 against the plaintiff and others. In that suit they got a decree for joint possession with the plaintiffs and others to the extent of '39 decimals of land out of that plot. That shows that the defendants were not in possession of the disputed land which was in possession of the plaintiffs and others and the defendants subsequently dispossessed the plaintiffs, taking advantage of the decree for joint possession. They are not entitled to get actual possession. Their only remedy is a suit for partition. When they forcibly took away the paddy grown by the plaintiffs they are bound to pay damages. Besides, a co‑sharer in possession of common property in exclusion of the other is under an obligation either to account for or to pay compensation in respect of the profits earned by him by his own industry. Mesne profits and com pensation as between co‑sharers are both in the nature of damages for exclusion from common property. Such an exclusive use of land held in common by a co‑sharer is not an ouster of his co‑sharer from the land. In this view of the matter I must hold that the defendants are bound to pay damages for the paddy they took away and compensation to the plaintiffs for use of the land in exclusion of the plaintiffs. In support of my view reference may be made to the case of The Midnapur Zamindary Co., Ltd. v. Naresh Narayan Roy and others 29 C W N 34 besides the case reported in A I R 1941 Pat. 90 referred to in the judgment by the learned Subordinate Judge. Next point of the learned Advocate for the petitioners, is that even if the plaintiffs are entitled to get compensation from the defendants, they cannot claim compensation for more than '6 decimals of land which is the land covered by the patta Exh. (I). The learned Advocate for the opposite party pointed out that the findings of the lower appellate Court relying on Exh. I and the Revisional Survey Record, Exh. 3, are that the plaintiffs have got title to 39 decimals of land out of the Revisional Survey plot No. 622 which is equivalent to half of that plot and the plaintiffs' title to A disputed plot has been fully established. In view of this finding of the lower appel late Court, the contention of the learned Advocate that plaintiffs are not entitled to claim compensation for more than '6 decimals of land is not justified. Next contention of the petitioners is that there is no finding in either of the Courts below as to what was the actual produce of the land and the price thereof. It is quite true, the trial Court dismissed the suit on the ground that it was not maintainable and it did not think it necessary to come to any finding on that point and the appellate Court decided the case on the ground that the suit was maintainable and accepted the case of the plaintiffs as true but did not come to any specific finding as to the produce and the price thereof. The learned Advocate for the opposite party has drawn my attention to the evidence of P. W. 1 who definitely stated that 10 Mds. of paddy was grown in '39 decimals of land, and the price of the same was Rs. 120 and the price of straw was Rs.

20. There is no counter evidence in the record to which my attention has been drawn as to the amount of paddy and the price thereof. In this view of the matter, if the appellate Court decreed the suit in full, I do not think he has committed any error which can be interfered with in revision under section 115 of the Code of Civil Procedure. Besides. I have already held that revision under section 115 of the Code of Civil Procedure would not lie. The result, therefore, is that this Rule is discharged with costs. A. H. Rule discharged.