JUDGMENT : Stanley, J.:— The facts of this case are very few and simple. One Chhedi Barhai, who was a tenant of the parties to the suit, died without heirs. After his death the defendant-appellant, Jaganath Singh, one of the co-sharers, took possession of the tenant's holding and proceeded to cultivate it. The plaintiffs-respondents who are co-sharers with the defendant-appellant, brought this suit to recover possession of three-fourths of Chhedi Barhai's holding, by which I understand that they seek to obtain physical possession of three-fourths of the holding, and they also claimed mesne profits of the land. In effect they ask a Civil Court to partition land paying revenue amongst the co-sharers. It is to be noted that Jagannath Singh did nothing illegal when he entered into possession of derelict land which belonged to him and his co-sharers. He was entitled to do so and to cultivate the lands, but for the benefit of himself and his co-sharers. The Court of first instance did not grant the relief which the plaintiffs claimed as stated above, but passed a decree which was not asked for, namely, a decree for joint possession of the land and for mesne profits. Upon appeal the learned Subordinate Judge confirmed the decree of the lower Court 2. Now it was decided by my learned colleague in the case of Rahman Chaudhri v. Salamat Chaudhri : [1904] A.W.N., 48 that where co-sharers in an undivided mahal come into Court, complaining that other co-sharers having a like interest with themselves, have taken possession of part of the joint property the only relief which a Civil Court can give, is a decree declaring the plaintiffs to be entitled to possession jointly with the other co-sharers, A Civil Court cannot give a decree in favour of co-sharers under which a co-sharer may be ejected from any portion of the common property. I am surprised to find that this case has not yet appeared in the Indian Law Reports as it is a decision of importance. I have had occasion in several cases to consider this question, and I am entirely in accord with my learned colleague in his decision upon this question. I am surprised to find that this case has not yet appeared in the Indian Law Reports as it is a decision of importance. I have had occasion in several cases to consider this question, and I am entirely in accord with my learned colleague in his decision upon this question. It appears to me that if co-sharers desire to sue a co-sharer who is in occupation of joint property and who has not obtained possession illegally, the only course open to them is to apply for and obtain partition. It is true that the co-sharer in possession must account to the other co-sharers for the profits of the land of which he is in exclusive physical possession. The decision of a full Bench of this Court in the case of Bhairon Rai v. Saran Rai is not as it appears to me in conflict with this view. 3. I was a member of the Bench which decided that case and it was determined upon the ground that the defendant in the suit had illegally ousted a co-owner from joint possession. In that Full Bench case my brother BANERJI referring to the judgment of my brother BURKITT in the case of Rahman Chaudhri v. Salamat Chaudhri, says; “I must confess that with some of the observations contained in that judgment, I am hot prepared to agree.” The learned Judge does not specify what those observations are, but they cannot, I think, refer to any observation made in regard to the substantial question before the Court, for I find that my brother BANERJI was a party to the decision in the case of Bhola Nath v. M. Buskin : [1894] A.W.N. 137, the facts of which are on all fours with the case now before the Court as also with the case of Rah man Chaudhri v. Salamat Chaudhri. In the former case it was decided that where one co-sharer in a thok sued the lessee of other co-shares in the thok, the lessee being in actual physical possession of a portion of the land comprised in the thok, for joint possession and for mesne profits, the only decree which could be given was a declaration that the plaintiff was entitled to an undivided share in the thok and for a proportionate share of rents and profits, and that the plaintiff was not entitled to get a decree for mesne profits against the lessee defendant. There is even a stronger expression of opinion upon this question of the same learned Judges, who decided the last mentioned case, in the case of Ram Jatan Shukul v. Jaisar Shukul : [1894] A.W.N. 166. As regards profits it is clear that the plaintiffs are entitled to have the profits taken into consideration and an account rendered by the defendant-appellant when the village accounts are settled. For these reasons it appears to me that the decrees of the lower Courts cannot stand, and that the proper decree is to declare that the defendant-appellant and the plaintiffs respondents are joint owners of the holding in dispute, and that the plaintiffs-respondents, as such, are entitled to an account of the profits of the land so long as it is in the possession of the defendant-appellant. Burkitt, J.:— I concur in the order proposed by the learned Chief Justice and in the reasons by which it is supported. But as I am the Judge responsible for the decision in the case of Rahman Chaudhri v. Salamat. Chnudhri : [1901] A.W.N., 48, I desire to add a few words. The facts of that case are exactly on all fours with and undistinguishable from the facts of the present case. In that case, as in this, we have as parties co-sharers in an undivided mahal. We have one co-sharer taking possession of some derelict land which has been abandoned by the tenant. The facts of that case are exactly on all fours with and undistinguishable from the facts of the present case. In that case, as in this, we have as parties co-sharers in an undivided mahal. We have one co-sharer taking possession of some derelict land which has been abandoned by the tenant. We have also a suit by the other co-sharers against the co-sharer who so took possession, claiming in the present case actual physical possession, but in the case reported in W.N., 1901, p. 48, joint possession with the co-sharer in possession, in that case I held that the only decree to which the plaintiffs co-sharers were entitled, was a decree declaring them to be with the defendant's joint owners of the land in question, and, as such, entitled to receive from the co-sharer in possession their proper share of the profits of that land at the annual settlement of the village accounts. I see no reason whatsoever to resile from any proposition of law stated by me in that judgment. I have had frequently to consider it since that judgment was delivered, and the more I have turned over the matter in my mind, the more convinced I am that the law I laid down there is correct. For these reasons, concurring with the learned Chief Justice, I would partially allow this appeal and restrict the decree in favour of the plaintiffs-respondents to that I have just mentioned. By The Court : The order of the Court is that this appeal be partially allowed, and that instead of the decree for joint possession given to the plaintiffs-respondents, a decree in their favour be passed, declaring that they, as co-sharers in an undivided Mahal, are joint owners with the defendant of the land in question, and as such, entitled to receive their proper share of the profits of the land. We allow no costs to either side.