JUDGMENT Mulla, J. - This is a Second Appeal by one of the Defendants in a suit for joint possession of a plot of land. The suit has been brought by three Plaintiffs who claim a half share in the plot. The plot in question is a sir plot and it is situated in a patti jointly owned by the parties. It appears that it was in the occupation of a tenant named Chitanki Chamar up till about 1932. Chitanki died without leaving any heir and thereupon the Appellant Jainti Prasad and his brother Sheo Mangal Prasad took exclusive possession of the plot. The three Plaintiffs thereupon filed a suit (No. 466 of 1932) alleging that Jainti Prasad and Sheo Mangal Prasad had taken exclusive possession of the plot though the Plaintiffs were entitled to a half share in it. That suit ended in a decree for joint possession in favour of the Plaintiffs on the 29th of January, 1934. Now a decree for joint possession can be executed only as prescribed by Order XXI, Rule 35(2) which runs as follows: Where a decree is for the joint possession of immoveable property such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. 2. It must be presumed and nothing is alleged to the contrary, that the decree for joint possession which was passed in favour of the Plaintiffs in suit No. 466 of 1932 was executed in the manner prescribed by the law. It is evident therefore that the Plaintiffs did not and could not have obtained actual possession over any part of the plot in dispute. It appears that this joint possession was given to the Plaintiffs in May, 1934. Having obtained that joint possession they presumably tried to take actual possession of a portion of the plot but were resisted by the Appellant Jainti Prasad and Sheo Mangal Prasad. Thereupon they filed another suit for joint possession and it is out of this suit that the present appeal arises. 3.
Having obtained that joint possession they presumably tried to take actual possession of a portion of the plot but were resisted by the Appellant Jainti Prasad and Sheo Mangal Prasad. Thereupon they filed another suit for joint possession and it is out of this suit that the present appeal arises. 3. The suit was dismissed by the trial Court on the ground that the Plaintiffs had already obtained a decree for joint possession and were not entitled to get actual physical possession of any portion of the plot in dispute without suing for partition of their share. The first Court accordingly held that there was no cause of action for the suit. It may also be mentioned here that the Plaintiffs also claimed mesne profits but the trial Court rejected the claim on the ground that they could claim profits by means of a properly framed suit in the Revenue Court. 4. The matter went up in appeal before Mr. Kali Das Banerji the learned Civil Judge of Jaunpur. He has taken the view that the joint possession decreed in the previous suit does not mean more symbolical possession which is at its best an airy nothing unloss followed by affective physical possession. 5. Taking that view he has decreed the Plaintiffs' suit in the following terms: Actual physical joint possession of the property must be delivered by the Defendants to the Plaintiffs. 6. He has not considered the question of mesne profits at all but has apparently decreed the Plaintiffs' claim in that respect also. 7. Having heard the learned Counsel for the parties I think the question in issue is a very simple one and I entirely agree with the view taken by the trial Court. It is evident that a decree for joint possession can be executed only in the mode provided for by Order XXI, Rule 35(2) of the CPC which I have set out above. Such possession cannot be actual physical possession. There must be some difference between a decree for exclusive possession and a decree for joint possession. In the former case the party who obtains such a decree is entitled to oust any other person who might be in possession of the property.
Such possession cannot be actual physical possession. There must be some difference between a decree for exclusive possession and a decree for joint possession. In the former case the party who obtains such a decree is entitled to oust any other person who might be in possession of the property. In the latter case all that the law provides is that possession shall be delivered to him by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum or other customary mode at some convenient place the substance of the decree. It is quite evident that the Plaintiffs misconceived their remedy. Their grievance can be remedied only by a properly framed suit for partition of their share. It is and then that they can obtain actual physical possession over their share of the plot in dispute. A decree for joint possession cannot entitle them to take actual physical possession to the ouster of the persons in actual possession of the plot in dispute. The title of the Plaintiffs to the plot in dispute is not disputed by the Appellant. If the Plaintiffs wish to obtain actual physical possession in accordance with their share in pursuance of their title they have to bring a suit for partition. The first Court rightly held that the Plaintiffs having once obtained a decree for joint possession and their title not having been denied by the Appellant they had no cause of action for the suit. As regards mesne profits also the trial Court took the correct view that the Plaintiffs had to file a suit for profits in the Revenue Court. In my judgment the view taken by the learned Civil Judge is not correct. 8. The result therefore is that I set aside the decree passed by the Court below and restore that of the trial Court. The Plaintiffs' suit is consequently dismissed with costs throughout. 9. Leave to appeal by way of Letters Patent is refused.