JUDGMENT : K.S. GOVINDA PILLAI, J. 1. Defendants 2, 4, 7 and 9 are the appellants. The plaint property 4 acres and 30 cents in extent, originally belonged to the plaintiff’s tarawad which became divided into three branches under a partition deed of 1043. The plaint property was then left in common for the three branches of the tarawad. The common Karanavan was put in possession of the same. Krishnan Parameswaran who was the senior-most male member of the tarawad was in possession of this property till 1080. The next Karanavan Parameswaran Govindan was in possession thereafter but he executed Ext. A Melvaippa deed on 14.12.1080 to the 5th defendant and one Varghese the deceased father of defendants 1 to 4. Parameswaran Govindan subsequently instituted O.S. 24 of 1082 for a declaration of his exclusive title to the property. This suit was dismissed by the District Court of Alleppey and in appeal by the High Court. One Krishnan Raman who was the representative of one of the three branches filed a suit O.S. 684 of 1085 in the Munsiff’s Court of Alleppey for partition of this property after setting aside Ext. A to the extent of his 1/3 share. In that suit the Melvaippa holder were defendants 5 and 6. The remaining two branches were represented by defendants 1 to 4. The Melvaippa deed was set aside but the relief for partition was denied as all the properties left in common had not been included in this suit for partition. Exts. C and I are the judgment and decree in that case. Then Krishnan Raman’s branch instituted O.S. 37 of 1091 in the District Court of Alleppey for partition of all the properties left in common. The Melvaippa holders were also impleaded in the case. Ignoring the Melvaippa deed Krishnan Raman was given among other properties 1/3 of the plaint property with past and future mesne profits 56 cents out of the plaint property were however excluded as the same had already been sold in revenue auction for arrears of tax. The present plaintiff who is a member of another branch stated that in a partition in his branch the right over the plaint one third of Survey Number was allotted to his share. Similarly the 6th defendant who was the member of the remaining branch obtained the right over the balance in a partition in his branch. The present plaintiff who is a member of another branch stated that in a partition in his branch the right over the plaint one third of Survey Number was allotted to his share. Similarly the 6th defendant who was the member of the remaining branch obtained the right over the balance in a partition in his branch. Thus the plaintiff and the 6th defendant were entitled to the plaint property which was the remaining 2/3 share after meeting the claims of Krishnan Raman’s branch. He had no objection to the 6th defendant if willing be added as a plaintiff. At any rate he stated that he was entitled to recover possession of the entire property with past and future mesne profits. He also stated that in case his contention, that Ext. A was not binding on him or the plaint property was not upheld he might be allowed to recover possession of the property on payment of a proportionate amount charged under Ext. A on his share. He claimed mesne profits for the 2/3 share in the property at the rate of 139 Paras and 1½ Edangalies of paddy a year. Court fees had been paid on the market value of the property. 2. The appellants had filed two joint written statements. Their main contention was that since Parameswaran Govindan had asserted his exclusive title to the property in Ext. C suit the present suit was barred by limitation and adverse possession, that the present plaintiff was entitled only to 2/9 share in the plaint property, that he could not get possession of anything more than that, that he was not to be allowed to recover possession of the 6th defendant’s share, that they were not liable to pay the Sirkar tax due on the property that from 1087 they were paying such tax, that before redemption they were to be given the tax thus paid by them till now, that with the execution of the decree in O.S. 37 of 1091 (Ext. III is the judgment in that case) they lost 1/3 of Ext. A property, that they were therefore to be compensated for the loss of that 1/3 before the plaintiff was allowed to recover possession of the property on payment of the mortgage amount and that the plaintiff was not entitled to any relief. 3. III is the judgment in that case) they lost 1/3 of Ext. A property, that they were therefore to be compensated for the loss of that 1/3 before the plaintiff was allowed to recover possession of the property on payment of the mortgage amount and that the plaintiff was not entitled to any relief. 3. The plaintiff replied by saying that he was entitled to recover possession of the plaint property without paying any amount as Ext. A had been set aside in Ext. C case, that Ext. C decision was binding on the defendant and the plaint property, that his branch was entitled to 1/3 of the entire property for Parameswaran Govindan, to whom 1/9 of the property was according to the defendants said to belong, was only a member of his branch, that whatever right Parameswaran Govindan had over the property lapsed to his branch, that all the members of the tarawad had conceded the rights of the plaintiff’s branch to 1/3 of the property that the defendants were never accounting for the mense profits, that they were liable to pay the tax and that the mortgage amount, the Sirkar tax said to have been paid and the mesne profits claimed as damages by the defendants on account of the loss of 1/3 of the property were not allowable to the defendants. 4. The trial Court found that the suit was not barred by limitation, that the findings in Ext. C case were binding on the defendants, that the plaintiff and the 6th defendant were not liable to pay any amount under Ext. A before they asked for the recovery of possession of the property, that the defendants had paid tax from 1087 to 1119 that they were entitled to get the tax paid for 3 years, that the plaintiff’s claim for mesne profits at 139 Paras and 1½ Edangalies of paddy per year was sustainable and that the suit was to be decreed in terms of the plaint, subject to the modification that the plaintiff was to pay the defendants 328½ fanams towards the tax for 3 years. The lower Court however directed that the plaintiff would get the whole of the plaint property, i.e., 1/3 share belonging to the 6th defendant also only in case the 6th defendant did not apply for execution within three months of the decree and obtain delivery of possession. 5. The lower Court however directed that the plaintiff would get the whole of the plaint property, i.e., 1/3 share belonging to the 6th defendant also only in case the 6th defendant did not apply for execution within three months of the decree and obtain delivery of possession. 5. The appellants attacked the entire decree. The plaintiff-respondent has filed a cross appeal relating to the direction as regards the payment of tax for three years. 6. The first question argued before us related to the binding nature of Ext. C decision as regards the validity of Ext. A Melvaippa deed. The parties are agreed that the plaint property originally belonged to the plaintiff’s tarawad became divided. The plaint property was left in common for the enjoyment of the senior-most male member of the tarawad. Parameswaran Govindan who was a member of the plaintiff’s branch obtained possession of the property in 1080. In the plaint it had not been stated that the obtained possession as the senior-most male member of all the branches put together. But the plaint was worded in such a way as to induce us to draw the inference that the plaintiff proceeded on the assumption that in 1080 Parameswaran Govindan was the senior-most male member. When the plaintiff was examined as PW1 this question was put to him in more places than one and he had sworn in clear terms that Parameswaran Govindan was the common Karnavan in 1080. The basis on which the parties proceeded in Ext. C suit would also show that there was no dispute between them as to the status of Parameswaran Govindan as the common Karanavan of the three branches. When properties were left to the enjoyment of the common Karnavan and when one member of the tarwad without any dispute from other members came to possession of that property, it was usual to infer that this person came into possession rightly in exercise of his powers as the common Karnavan. The plaint property was a Viruthi land. It had been enfranchised and Patta was given to one Krishnan Parameswaran who was the common Karnavan. Subsequently at the time of the Settlement started in 1060 Patta for this property was given to the representatives of the three branches. Parameswaran Govindan wanted to have this Patta decision set aside. He had filed a suit for that purpose but he was unsuccessful in the same. Subsequently at the time of the Settlement started in 1060 Patta for this property was given to the representatives of the three branches. Parameswaran Govindan wanted to have this Patta decision set aside. He had filed a suit for that purpose but he was unsuccessful in the same. He had also executed Ext. A Melvaippa deed in 1080 for 2500/- Razis. One of the representatives of the branches therefore filed a suit in 1085 to set aside Ext. A so far as the share of his branch was concerned and to divide the property into three shares. Parameswaran Govindan was the 1st defendant. Another member of his branch Kunjan Narayanan was the 2nd defendant. Defendants 3 and 4 appeared to represent the remaining 1/3 branch. Defendants 5 and 6 were the mortgagees under Ext. A. Kunjan Narayanan put forward a contention there that his branch was entitled to 2/9 of the property under a partition deed of 1054 and that Ext. A should be set aside so far as his share also was concerned. 7. Defendants 5 and 6 there contended that the present Ext. A was supported by consideration and necessity and that it was binding on the entire tarwad. Definite issues were raised regarding the binding nature of this Melvaippa. It was found that it was not supported by consideration and tarward necessity. The Court in that case did not however allow the plaintiff a partition of his share as it was considered to be one for partial partition and hence not maintainable. The question is, how far this decision is binding on the parties and whether the mortgagees under Ext. A are barred by res judicata by reason of Ext. C decision in agitating the validity of Ext. A. 8. It was stated by the appellant’s learned Advocate that since Ext. C suit was dismissed the decree was in favour of the mortgagees, that it was not open to them to appeal against the findings which overruled their contentions and that therefore the decision in that case would not operate as res judicata. He referred to the ruling in Midnapur Zamindari v. Naresh ( AIR 1922 PC 241 ) for this position. There is no doubt or dispute about the position taken by him and that position had been accepted as correct by the Travancore High Court in several of its rulings. He referred to the ruling in Midnapur Zamindari v. Naresh ( AIR 1922 PC 241 ) for this position. There is no doubt or dispute about the position taken by him and that position had been accepted as correct by the Travancore High Court in several of its rulings. We would only refer to 27 TLR 70, 40 TLR 222 and 30 TLJ 145 for the purpose. But as contended by him Ext. C suit had not been dismissed. In the decretal portion we do not find any expression to indicate that the suit was dismissed. The plaintiff in that case had prayed for two reliefs, viz., to set aside Ext. A so far as his share was concerned and to divide the property by metes and bounds. The Court allowed one of the reliefs setting aside Ext. A but refused the other prayer for partition. There was thus a decree which was clearly against the mortgagees. Besides the decree would show that their possession as mortgagees was terminated and that they were allowed to continue in possession under Parameswaran Govindan. That portion of the judgment regarding this matter stood thus: “with regard to the Melvaippa deed executed to defendants 5 and 6. I hold that it is not valid and is not binding on the schedule property. Defendants 5 and 6 will continue to be a possession of the schedule property under the 1st defendant. In the circumstances of the case I direct the parties to bear their respective costs”. 9. The decree relating to the validity of Ext. A was therefore against the mortgagees. They had also been asked to suffer their costs. Thus, there was a decree against them and this they could have taken up in appeal. The finding therefore entered there regarding the validity of Ext. A was binding on the mortgagees and the plaint property. 10. The next argument was that if at all it could be deemed that Ext. A was set aside only as regards Krishnan Raman’s 1/3 and Kunjan Narayanan’s 2/9 share so that Ext. A would be valid as regards the remaining 4/9 share. In this also the defendants are not entitled to succeed. Ext. C put an end to their possession as mortgagees. They were allowed to hold on under the common Karnavan apparently as his tenant. A would be valid as regards the remaining 4/9 share. In this also the defendants are not entitled to succeed. Ext. C put an end to their possession as mortgagees. They were allowed to hold on under the common Karnavan apparently as his tenant. In the subsequent partition suit in O.S. 37 of 1091 filed by Krishnan Raman and others it had been held in Ext. III judgment that the present Ext. A which was Ext. J in that case, had no consideration and necessity so as to bind the plaintiff there. There was a misreading of the present Ext. C in Ext. III as it was stated that that decision had held that the Melvaippa was binding on the branch of Parameswaran Govindan. There was no such finding any where in the judgment. At any rate it would be seen from Ext. C judgment that the Melvaippa was not allowed to stand in the way of one of the co-shares in obtaining his share. This would enure to the benefit of all the co-sharer for as held in AIR 1932 Cal. 869 and ILR 3 Cal. 551, a decree for partition was a joint decree in favour of all the share-holders so that execution proceedings taken by one of them were sufficient to keep the decree alive in favour of all. Thus the finding secured by one of the shareholders relating to the invalidity of a particular transaction would enure to the benefit of the other shareholders also even though that shareholder had paid the Court fees only for his share. There is also the ruling in Ramaswamy Iyer v. Avira (17 TLR 122) in support of that position. In that case there was five brothers each holding 1/5 share in the property involved in that case. One of the brothers paying court fees for his share filed the suit for division. One of the brothers set up special rights over the property. The plea relating to the special right was overruled and the suit was decreed. Subsequently the purchaser from another brother filed a similar suit for partition of the share he got. The brother who set up the special right in the previous suit repeated his contentions. It was held that this brother was precluded from putting forward such special rights as he was concluded by the first decision. Subsequently the purchaser from another brother filed a similar suit for partition of the share he got. The brother who set up the special right in the previous suit repeated his contentions. It was held that this brother was precluded from putting forward such special rights as he was concluded by the first decision. It was therefore evident that even though the plaintiff in Ext. C suit paid the Court fees for his 1/3 share the finding entered relating to the validity of Ext. A would enure to the benefit of all the co-sharers. Thus the mortgagees are not entitled to put forward the contention that Ext. C is not binding on them or that they are to get the amounts paid under Ext. A. Ext. C decision concludes the matter and it is not open for the parties to reagitate the matter once again. 11. The next argument was that Parameswaran Govindan who executed Ext. A was entitled to 1/9 of the property under a partition deed of 1054 and that the whole Melvaippa amount was to be charged on that 1/9 share. In the first place there is no such contention put forward in the written statement. Secondly the document of 1054 by which Parameswaran Govindan was said to have obtained 1/9 share had not been produced in this case. Thirdly there is the finding in Ext. C case that the Melvaippa deed is not binding on the plaint property as a whole. This finding had not been got modified by the parties affected by the same in appropriate proceedings. This contention could not therefore be allowed to prevail. 12. The next argument related to the question of limitation and adverse possession. It was true that Parameswaran Govindan had set up exclusive right to the property by filing a suit to set aside the Patta issued in favour of all the branches. That suit was dismissed. It would appear in Ext. C suit that he practically gave up this contention for in paragraph 6 of Ext. C the summary of his contention was given. That suit was dismissed. It would appear in Ext. C suit that he practically gave up this contention for in paragraph 6 of Ext. C the summary of his contention was given. He stated that if it was found that the property belonged to the common tarwad he was not willing to give his consent for a division, that there were other properties also left in common in the division of 1043, that the plaintiff’s suit for partition of this property alone was not maintainable and that the suit for partition without all members of the tarwad was to be dismissed. There was a clear declaration in Ext. C that the property belonged to the main tarwad. He could not therefore be holding the property against that tarwad unless and until there was clear evidence of an overt act of which all the sharer had notice that he intended to hold the property against them. There was no such act. On the other hand, in 1091, when one of the branches filed the suit for partition it was allowed a share in the property. After the death of Parameswaran Govindan, the senior-most male member in the common tarwad, the Melvaippa holders should be deemed to have continued in possession under the next common Karnavan. No question therefore of adverse possession or limitation would arise. This argument is therefore not accepted. 13. Another argument was as regards the Sirkar tax paid from 1087. There is no doubt that defendants had paid the tax. But they were in possession of the property from 1087 without accounting to any one for the mesne profits until the suit was filed by one of the sharers in 1091. While allowing the plaintiff in that case mesne profits in the property the question of payment of Sirkar tax had also been taken into account. In paragraph 6 of Ext. III judgment it was mentioned thus:- “The Pattom due on the property also must be proportionately reduced. (This was on account of 56 cents in the property sold in revenue auction). The Pattom on 4 acres and 30 cents is 281 paras. (Vide Ext. J). Out of this the Sirkar tax namely 35 paras should be deducted. In the plaint only 240 paras were claimed. The proportionate Pattom on 3 acres and 74 cents comes to 208¾ paras only. The Pattom on 4 acres and 30 cents is 281 paras. (Vide Ext. J). Out of this the Sirkar tax namely 35 paras should be deducted. In the plaint only 240 paras were claimed. The proportionate Pattom on 3 acres and 74 cents comes to 208¾ paras only. The plaintiff is entitled to get only 1/3 of it, viz., 60 paras and 5¾ Edangalies of paddy.” In assessing the mesne profits the tax due to Sirkar had been deducted. The plaintiff in this case had adopted the mode of calculation given in Ext. III and claimed only 69 paras and 5¾ Edangalies of Paddy as mesne profits for 1/3 share. The defendants were therefore not entitled to get the Sirkar tax paid by them for they wereappropriating the whole Pattom from 1087 and 2/3 of the Pattom after Krishnan Raman’s branch got its 1/3 share. The lower Court allowed them the tax for 3 years. They are not even entitled to get this and the cross appeal filed by the plaintiff is allowed. 14. One other argument was that in any event the plaintiff would not be entitled to get the 1/3 share which belonged to the 6th defendant. The 6th defendant who was the only person interested in opposing this claim has not come forward. The plaintiff himself had stated that he had no objection to take the 6th defendant also as a co-plaintiff provided he was willing for the same. According to him the defendants who were only in the position of permissive tenants could not be allowed to hold on the property. The plaintiff was perfectly justified in asking for possession of the share of another tenant-in-common. In Philipose v. Thoma (31 TLR 193) the eminent Chief Justice Raman Menon had enuciated the principle that one of several tenants in common is entitled to recover exclusive possession from a tresspasser. The reasoning for this is given in paragraphs 4 and 5 of his judgment which are quoted below:- “It is argued that the plaintiff being only one of the co-owners of the plaint property which is admittedly owned by the plaintiff and his brothers, defendants 2 to 4, he cannot maintain a suit for exclusive possession but can only claim joint possession with the first defendant. It must be noted that this contention is urged not on behalf of defendants 2 to 4 the other co-shares, but on behalf on first defendant, the tresspasser. In our view, the ground is clearly untenable. “We are stating the law on the assumption that the plaintiff and his brothers are, as contended by the appellant’s Vakil, tenants-in-common in respect of the plaint property, and not joint tenants. `To constitute a tenancy in common, there must be an equal right to the possession of every part and parcel of the subject-matter of the tenancy’ (Freeman on Co-Tenancy S. 87. Edition of 1874). ‘Tenants in common have a unity of’ possession similar to the unity of possession of joint tenants, (Edwards’ Compendium of Real Property, Page 136, 2 Blackstone’s Commentaries, page 195). The unity of possession of joint tenants is technically described as a seisin or possession per my et per tout, i.e., not of any separate part, but of the whole. The possession of each joint tenant is treated in law as a possession of the whole land (Edwards’ Compendium, page 128). “Joint tenants or tenants-in-common when they have not parted with possession, possess in law and may possess in fact according to their interest as owners. If a servant holds the property on their behalf, the de facto possession is exercised in the name and for the use of all of them. If one of them alone holds or occupies, his physical possession is that of an owner for his own interest and that of an agent as to the others.... In every case there is not a plural possession, but a single possession exercised by or on behalf of several persons” (Pollock and Wright on Possession, Page 21). 15. We are in entire agreement of the reasonings given and the conclusion arrived at there. The plaintiff is thus entitled to recover possession of the 1/3 share belonging to the 6th defendant also. 16. In the result the appeal fails and it is dismissed with costs. The cross appeal relating to the Sirkar tax decreed for 3 years is allowed with costs. The defendants are not to get anything on account of the Sirkar tax paid by them. The decree of the lower Court is modified to this extent and confirmed in all other respects.