JUDGMENT Kidwai, J. - The Plaintiffs-Appellants brought a suit for possession of a one pie 15 krants share in village Rannipara, district Lucknow, which corresponds to a 11 pie 4 krants share in mahal Arjun Singh of that village. They also claimed Rs. 150 as memo profits for three years preceding the suit, Subsequently it was agreed that if mesne profits were to be decreed they would amount to Rs. 90 for three years. 2. The property had originally belonged to Sarabjit Singh Defendant, and the Plaintiffs had purchased it in a Court sale in execution of their decree against the Defendant on the 20th January, 1930. Although the pale was Confirmed on the 1st May, 1930, the Plaintiffs took no steps to obtain possession of the property by means of proceedings in dakhaldehani under Order XXI Rule 96 of the Code of Civil Procedure. Since the time allowed by law for making such an application had expired the Plaintiffs instituted the present suit for possession and mesne profits. The Defendant admitted that the Plaintiffs had purchased the property in suit at Court sale but pleaded that the present suit was barred both by the law of limitation as well as u/s 47 of the CPC and that in no case was he liable to pay any mesne profits. He also pleaded that there was sir and khuakasht land in the village of which he was in possession and, in any case, the Plaintiffs were not entitled to obtaimacual possession of this, or to claim any mesne profits with regard to this, since he had become expropriator tenant of this land. It may be noticed that the whole interest of the Defendant Sarabjit Singh was rot sold at this auction sale and he continued to retain a share. Thus the position was that the Plaintiffs could only obtain a decree for joint possession, that is to say the delivery of possession would be symbolical the trial Court decreed the suit both for possession and for mesne profits. 3. The Defendant was not satisfied and appealed from the decree with regard to mesne profits only and the learned Civil Judge of Malihabad allowed their appeal and held that the Plaintiffs were not entitled to mesne profits because the possession of the Defendant was not wrongful inasmuch as he was a co-sharer is the property. 4. 3. The Defendant was not satisfied and appealed from the decree with regard to mesne profits only and the learned Civil Judge of Malihabad allowed their appeal and held that the Plaintiffs were not entitled to mesne profits because the possession of the Defendant was not wrongful inasmuch as he was a co-sharer is the property. 4. The Plaintiffs have now come up in second appeal and it is argued on their behalf that the Defendant had to right to continue in possession and, therefore, his possession was wrongful. It is further argued that in any case, even if mesne profits are not allowed, the share of the profits due to them might be allowed even by the Civil Court, since it has been laid down in Mindai v. Sajtd (1929) 6 O.W.N. 1925 that if a suit is partly tribal by a Civil Court and partly by a Revenue Court, the Civil Court may entertain the whole suit. I agree with the lower appellate Court that the case relied upon by the Appellant before it in Gray Bhagu Mian (1920) 9 Pat 621 does not have any bearing upon the present appeal, since it only lays down principles upon which mesne profits are to be determined. The Learned Counsel for the Appellants has relied upon several cases but none of them, except Ram Sewak v. Lalta (1929) 1 Luck. 206 is in point In that case it was held that where several co-sharers are in possession of property and one of the co-sharers, who was in exclusive possession of certain plots and in joint possession of other plots, gifted a share to another person but the other co-sharers took possession of the plots in the exclusive possession of the donor and did not allow the done to obtain possession, the possession was wrongful and the other co-sharers were liable to pay mesne profits or damages and that it was not necessary for the donee to bring a suit for partition or for profits in the Revenue Court. That case, however, is distinguishable from the present case in the present case the Defendant did not oust the Plaintiffs from possession. He was a co-sharer entitled to retain possession of the whole property and, in the absence of any action by the Plaintiffs to obtain joint possession, he could not in any way be blamed for continuing in possession. That case, however, is distinguishable from the present case in the present case the Defendant did not oust the Plaintiffs from possession. He was a co-sharer entitled to retain possession of the whole property and, in the absence of any action by the Plaintiffs to obtain joint possession, he could not in any way be blamed for continuing in possession. His possession was, therefore, not wrongful. 5. The Learned Counsel for the Respondent has relied upon a large number of cases, the first of which Mt. Mohankuar and Others vs. Bhagatram and Others lays down at page 317 (column 2) that mesne profits are only payable in respect of lands which were enjoyed by parties as tenants in common in case there has been an ouster and that if no ouster is proved a person not in possession cannot claim mesne profits. In Nathuram Agarwalla Vs. Abdul Latif and Others, AIR 1935 Cal 478 it has been laid down that if there are several co-sharers one of whom is in possession of property and the other co-sharers do not take steps to obtain possession, it cannot be said that the co-sharer in possession is in wrongful possession and as such liable for mesne profits. At page 481 (column 1) Mukerji J. remarked: Looking at the facts from the right angle of Vision it would seem that the Defendants who were in possession of the lands had no alternative but to be in such possession. It has been proved that the Plaintiff at any time made any attempt to take possession and it is not right that a party who does not take any steps to take possession of lands from others who are his co-sharers should be allowed a decree for mesne profits. 6. This case is fully applicable to the facts of the case before me. A similar view has been taken in Nand Kishore v. Parmeshwar AIR 1945 Pat. 80. 7. In Majid Mia Vs. Munshi Mia, AIR 1926 Cal 860 . It has been laid down that enjoyment by one co-sharer of profits in excess of his share does not amount to ouster. The learned Judge deciding the case says at page 861 (column 2): It is well settled that in case of co-sharers, if a decree for mesne profits or for compensation is to be passed, it must be found that there was dispossession. 8. The learned Judge deciding the case says at page 861 (column 2): It is well settled that in case of co-sharers, if a decree for mesne profits or for compensation is to be passed, it must be found that there was dispossession. 8. All these authorities fully support the contention of the Learned Counsel for the Respondent. It may also be noticed that in the case of Jagarnath Ojha v. Ramphal (1912) 34 All 160 upon which the learned Judge of this Court relied in Ram Sewak v. Lalta (1929) 1 Luck. 206 the claim for damages was given up in circumstances which were similar to the present case. The law is clear that the possession of one co-sharer is not wrongful, and it does not even give rise to the plea of adverse possession unless ouster is proved. In the present case it is not shown that the Defendant was in any way responsible for the Plaintiffs not obtaining possession of the property. It cannot therefore, be said that he had committed any wrongful act or had ousted the Plaintiffs. He is thus not liable for the mesne profits. 9. As to the second line of argument, viz., that this may be treated as a suit for a share of profits and a decree be passed on that basis, the difficulty would be that the considerations which apply for determining mesne profits are entirely different from the considerations which apply in order to ascertain the share of profits payable to one co sharer from another. Since the suit did not claim the share of the profits, there is no material on the record from which it may be ascertained what that share is and, therefore, the Court could pass no decree in respect of it. The decision of the lower appellate Court is, therefore, maintained and the appeal is dismissed with costs.