Judgment Narayan, J. 1. This is an appeal by the plaintiffs, and it arises out of a suit in which the prayer was for the removal of certain encroachments alleged, to have been made by the principal defendant No. 2 over a tank which is said to be the joint property of the plaintiffs and the defendants and which has been recorded in the Survey as plot No. 1534. The plaintiffs also sought a permanent injunction restraining the principal defendants from filling up the tank and from further changing its character. This tank originally belonged to the common ancestors of the plaintiffs and the defendants, and though the other properties were partitioned between the plaintiffs and the defendants, this tank was left joint or ijmal. According to the plaintiffs allegation they and the defendants had been in joint possession of the tank, but the principal defendants filled up a portion of the tank and converted about 3 bighas out of it into paddy fields. The disputed portion of the tank has been shown in the plaint as schedules 2 ka and 2 kha. After the plaint had been filed a commissioner was appointed for inspecting the locality and after the commissioner had submitted his report the plaintiffs made a further prayer in the plaint, for removal of a dam constructed by the principal defendants by the side of the tank. 2. The suit was resisted by the principal defendant No. 2, and his contention was that the disputed paddy fields were outside the bed of the tank and had been prepared by him long ago. According to him these paddy fields were prepared more than 12 years prior to the institution of the suit and to the knowledge of the plaintiffs. Alternatively, the defendant contended that even if the fields were found to be within the tank, the defendant by converting a portion of it into paddy fields, had not exceeded his right. Regarding the dam, the allegation of the defendant was that because a streamlet to the east of the tank was causing considerable damage to the tank, he, with the consent of his co-sharers, constructed the dam. 3. Regarding the dam, the allegation of the defendant was that because a streamlet to the east of the tank was causing considerable damage to the tank, he, with the consent of his co-sharers, constructed the dam. 3. The Courts below have concurrently found that the dam was constructed by the defendants 15 or 16 years prior to the institution of the suit and that it had been constructed for protecting the tank from being spoilt by the now of the water of the streamlet which is to the east of the tank, and that consequently the defendant, by constructing the dam, had not acted to the prejudice of the right of the plaintiffs in the tank. They have further found that the disputed portion, namely, Schedule 2 ka and 2 kha of the plaint, had silted up long ago and that the defendants, after it had silted up, prepared paddy khets in it. The contention of the defendant that the disputed land was outside the tank has been negatived by both the Courts below. 4. Mr. Mazumdar who has appeared for the plaintiffs-appellants before me has contended that the Courts below should have passed, a decree for joint possession in favour of the plaintiffs in view of the fact that the plaintiffs title had been disputed by the defendant. I am, however, not able to agree with the learned Counsel that this should be treated as a case in which the defendant had disputed the plaintiffs title to the tank. What the defendant had averred was that the disputed paddy fields did not form part of the tank, and this allegation of the defendant has not been found Co be true by the Courts below. As already pointed out, the alternative contention of the defendant was that even if the disputed fields be regarded as included within the tank, the defendant by preparing paddy fields in this portion of the tank had not exceeded his right. It will not to my mind be correct to say that the defendant disputed the plaintiffs title to the tank. It is one thing to say that the disputed land was outside the tank and it is another thing to say that the plaintiffs had no right to the tank. It will not to my mind be correct to say that the defendant disputed the plaintiffs title to the tank. It is one thing to say that the disputed land was outside the tank and it is another thing to say that the plaintiffs had no right to the tank. It was open to the defendants to contend that the land was outside the tank and it was also open to them to take up the alternative plea that if the disputed land was found to be a portion of the tank, in that event also the plaintiffs are not entitled to a decree in this suit. It is important to note that according to the findings of both the Courts the defendants have not prepared paddy fields in an area which can be regarded as exceeding his share in the tank or in the bed of the tank. And Mr. Mazumdar did not seriously press the claim of the plaintiffs-appellants for the removal of the dam. It has been definitely found by the Courts below that the streamlet was causing great damage, and that but for the construction of this dam further damage would have been caused to the tank by that streamlet. This was undoubtedly a very prudent act on the part of the defendant, and as the learned Additional District Judge has pointed out, when the plaint was filed there was no allegation made by the plaintiffs therein as to the construction of this dam and no relief was sought on account of the defendants having constructed it. The prayer for the removal of the dam was made after the commissioner had submitted his report, though in the written statement the defendants had specifically stated about the construction of the dam. This conduct of the plaintiffs also lends substantial support to the view of the Courts below that this dam was really constructed for the benefit of all the co-sharers who have interest in this tank. 5. The case would, in my opinion, be governed by the two Division Bench decisions of this Court reported in RAJ RANJAN PRASAD V/s. KHOBARI LAL, 20 Pat 162 and DIP NARAIN V/s. BIHARI MAHTON, AIR 1951 Pat 481 . 5. The case would, in my opinion, be governed by the two Division Bench decisions of this Court reported in RAJ RANJAN PRASAD V/s. KHOBARI LAL, 20 Pat 162 and DIP NARAIN V/s. BIHARI MAHTON, AIR 1951 Pat 481 . In the former case several previous decisions having bearing on the question were discussed and his Lordship Dhavle J. who delivered the judgment of the Court agreed with the view which had been taken by a Division Bench of the Calcutta High Court in CHANDRA KISHORE V/s. BISESWAR PAL, 55 Cal 396. In the Calcutta case it was held that where co-sharers were entitled to Joint possession of immoveable property as tenants in common each of such co-sharers was entitled to be in possession of each and every part of the common land, and that for the purpose of the profitable occupation of the joint property some of them could be in occupation of some of the portions of the land and other co-sharers of other portions and that where one co-sharer was in separate possession of the common land without, objection from, or ouster or exclusion of, the other co-sharers, he was under no obligation either to account or to pay compensation to such co-sharers in respect of the profits which had accrued to him by reason of the skill or industry which he had employed in making good use of the property while he was in possession. The Judicial Committee has in LACHMESHWAR SINGH V/s. MONOWARHOSSEIN, 19 Cal 253 (PC), laid down that when the defendant as a co-owner has made use of the joint property in a way quite consistent with the continuance of the joint ownership and joint possession he has not excluded any co-sharer and that it is a proper use and the question of exclusive right in the defendant does not arise. Their Lordships, in this case, quoted the well-known observation of the Board in WATSON AND CO. Their Lordships, in this case, quoted the well-known observation of the Board in WATSON AND CO. V/s. RAMCHAND DUTT, 18 Cal 10 (PC) and I should like to quote the following passage from that observation : "In India a large proportion of the lands, including many very large estates, is held in undivided shares, and if one shareholder can restrain another from cultivating a portion of the estate in a proper and husband like manner, the whole estate may, by means of cross injunctions, have to remain altogether without cultivation, until all the share-holders can agree upon a mode of cultivation to be adopted or until a partition by metes and bounds can be effected, a work which, in ordinary course in large estate, would probably occupy a period including many seasons. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value in Bengal the Courts of justice, in cases where no specific rule exists, are to act according to justice, equity, and good conscience, and if in a case of shareholders holding lands in common, it should be found that one share-holder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other share-holder to appropriate to himself the fruits of the others labour or capital." 6. In the latter Patna case also referred to above the relevant decisions were reviewed and the same view was taken. In this present case, before me there is no claim for compensation or mesne profits, and it has been distinctly found that the defendant has not prepared paddy fields in any portion of the tank which may exceed his share. There is a further important finding to the effect that a portion of the tank which has been converted into paddy fields "silted up long ago and in the ordinary course of nature." In such circumstances, a co-sharer would be justified in converting the silted portion into paddy field in order to make proper use of it. There is a further important finding to the effect that a portion of the tank which has been converted into paddy fields "silted up long ago and in the ordinary course of nature." In such circumstances, a co-sharer would be justified in converting the silted portion into paddy field in order to make proper use of it. I have already said that it was not the defence of the defendants that the plaintiffs had no right in the tank, and the contention of the defendant No. 2 to the effect that the land was outside the tank cannot amount to a contention that the plaintiffs had no interest in the tank. There was thus no exclusion or ouster of the plaintiffs pleaded and the Courts below have come to the conclusion that the tank continues to be the joint property of the plaintiffs and the defendants. 7. The learned Counsel for the appellants referred to a decision of this Court in MATHURA SINGH V/s. RAMA RUDRA PRASAD, 16 Pat L T 484, but the facts of that case are clearly distinguishable from the facts of this present case. In that case the plaintiffs and the defendants were co-sharer landlords of a certain village and the plaintiffs share was in zarpeshgi lease or usufructuary mortgage with the defendants who did not give up possession of the plaintiffs share of the bakasht lands and asserted raiyati rights therein, and in such circumstances the plaintiffs had to sue for joint possession with mesne profits. These facts certainly bear no resemblance to the facts of this present case, in which the disputed portion Of the tank has been filled up with earth in natural course, and one of the co-sharers, the defendant No. 2, has by his own expense and skill converted the portion filled up with earth into paddy fields, 8. This appeal, therefore, appears to me to be without any merit, and I would dismiss it with costs.