JUDGMENT 1. - These are two connected appeals directed against the appellate judgment and decree by the Civil and Additional Sessions Judge No. 3, Jaipur City dated 9.1.1967. 2. The property in dispute which is situated in Ramganj Bazar, Jaipur originally belonged to one Abdul Rehman, who mortgaged it in favour of Mohammad Saddiq in consideration of a sum of Rs. 500/- on 22.4.1907. Both Abdul Rehman as well as Mohammad Saddiq died and after their death Abdul Latif and two others claiming to be the heirs of Abdul Rehman filed a suit for redemption of the property against the heirs of the mortgagees. That suit was decreed on 29.9.1939. The property was in possession of Mohammad Ibrahim and Mohammad Ismail-defendants at the time of the said decree as tenants of the mortgagees. Consequently in the course of execution Abdul Latif was not able to obtain actual possession of the property, but was granted symbolical possession on 27.1.1941. However, before the symbolical possession was ganted to Abdul Latif, Mohammad Ibrahim and his brother Mohammad Ismail also filed a suit which was registered as Civil Suit No. 204 of Samvat 1998 in the Court of Munsiff (East), Jaipur against Abdul Latif & others for declaration that as heirs of the deceased-mortgagor Abdul Rehman they were entitled to get a share equal to annas five in a rupee in the suit property. This suit was decreed on 30.9.1942 by the trial court (vide judgment Ex. A. 6) The appeal filed by Abdul Latif was dismissed, but in the second appeal a compromise was arrived at between the parties, a copy of which has been placed on the record and marked Ex. 9. On the basis of this compromise a decree was passed on 21.4.1949 by which the share of the defendants in the disputed property was determined as annas five and that of Abdul Latif and other was annas eleven. Thus the share of Mohammad Ibrahim and Mohammad Ismail in the redemption money was determined as Rs. 166.25 paisa. For about 9 years Abdul Latif-plaintiff in the present case did not take any steps for getting possession of the property from the defendants, but gave a notice on 7.10.1958 to the defendants calling upon the latter to pay to him compensation for use and occupation of the property in dispute. This notice was repudiated by the defendants by their reply dated 17.10.1958. This notice was repudiated by the defendants by their reply dated 17.10.1958. Thereafter the present suit was filed by Abdul Latif on 4.12.1958 claiming Rs. 900/- on account of compensation for use and occupation of the property in dispute at the rate of Rs. 25/- per month for a period of three years, i.e. from 4.12.1955 to 4.12.1958. 3. The suit was resisted by the defendants, who pleaded that the plaintiff was entitled to get Rs. 166.25 paisa only as the defendants' share of the redemption money paid by the plaintiff. During the pendency of the suit the defendants deposited the said amount of Rs. 166.25 paise in the court on 1.3.1962 but the plaintiff did not accept the same. 4. The learned Munsiff dismissed the suit holding that the plaintiff was entitled only to share worth annas eleven in a rupee. But there was no evidence that the defendants had ever agreed to pay rent to the plaintiff and further that the defendants were in possession of the suit property as co-owners and were consequently not liable to pay any rent or damages for use and occupation of same. 5. Aggrived by the judgment and decree by the trial court Abdul Latif filed appeal. He died during the pendency of the first appeal and consequently his legal representatives were brought on the record. The learned Civil and Additional Sessions Judge No.3, Jaipur City by his judgment dated 29.1.1967 set aside the decree and judgment of the trial court and decreed the plaintiff's suit to this extent that the plaintiff would be entitled to rent for the premises in dispute at the rate of Rs. 10/- per month and a decree for Rs. 360/- was granted on this basis upto the date of the suit. 6. Both the parties are dis-satisfied with the judgment and decree by the learned Civil Judge, and have consequently come in appeal to this Court. The defendants' appeal has been registered as Appeal No. 78 of 1967, and that of the plaintiffs as No. 208 of 1967. 7. I would first dispose of the defendants' appeal. There is no gainsaying the fact that the defendants are co-owners in the property in dispute & are in possession of the same as such. The defendants' appeal has been registered as Appeal No. 78 of 1967, and that of the plaintiffs as No. 208 of 1967. 7. I would first dispose of the defendants' appeal. There is no gainsaying the fact that the defendants are co-owners in the property in dispute & are in possession of the same as such. On the basis of Ex.8, an application dated 13.1.1941 filed by the defendants in the course of execution of the decree for redemption obtained by the Abdul Latif dated 29.9.1939, the learned Civil Judge has come to the conclusion that the defendants had admitted that they were tenants in respect of the property in dispute and were consequently liable to pay rent to Abdul Latif. I have, therefore, closely scrutinised the contents of the application Ex. 8. It is mentioned therein that the defendants Mohammad Ibrahim and Mohammad Ismail had already filed a suit in respect of their share in the suit property and that they had objection to the possession of the property being handed over to the decree-holder Abdul Latif. It has been further stated that they had been admitted as tenants since two generations and had written a rent note in favour of the mortgagee-judgment-debtor in the year 1932, whereby it was agreed that they would not be evicted for a period of 10 years. It was further stated that the decree-holders were not entitled to get possession from them and at best they may be granted symbolical possession, and they may file a suit for eviction after the expiry of the period of tenancy and after giving due notice, but that the defendants were not prepared to hand over possession nor to execute a rent note in favour of the decree-holders. There is nothing in this application from which it may be concluded that they admitted themselves to be the tenants of the plaintiff Abdul Latif. They were undoubtedly not admitted as tenants by the plaintiff, nor they admitted any subsisting tenancy between themselves and the plaintiff. On the other hand, they have clearly stated in the very beginning of the application that they had filed a suit in respect of their share in the property, and in fact their share was recognised right upto the High Court in the suit filed by them. On the other hand, they have clearly stated in the very beginning of the application that they had filed a suit in respect of their share in the property, and in fact their share was recognised right upto the High Court in the suit filed by them. In these circumstances by no stretch of imagination can the defendants be relegated to the position of tenants of the plaintiff. The theory put forward by the plaintiff that the defendants had paid rent to him has been rejected by the learned Civil Judge also and the sole basis on which he has held the defendants liable to pay rent is Ex.8 which, in my opinion, does not create relationship of landlord and tenant between the parties. Assuming for the sake of argument that it does, that relationship undoubtedly came to an end by virtue of the judgment of the High Court dated 21.4.1949 passed on the basis of the compromise Ex. 9 and by no rule of estoppel can the defendants be estopped from asserting their rights granted under the decree of the High Court. Thus the finding arrived at by the learned Civil Judge cannot be sustained. 8. The next question that arises is whether the plaintiff is entitled to get damages for use and occupation of his share of the property from the defendants who are in possession of the whole property as co-sharers. Law is well settled that a co-owner & co-sharer is entitled to every portion of the joint property as long respective shares are not specified and partition carried out by metes and bounds. The plaintiff should have filed a suit either for joint possession or for partition of the joint property by metes and bounds, but so long as that is not done the possession of the defendants on any part of the joint property cannot be said to be unauthorised or illegal so as to make him liable for payment of compensation to other co-sharers. In this view of the matter, no decree for use and occupation of the property in question can be granted in favour of the plaintiff against the defendants. 9. The result is that the decree passed by the learned Civil Judge must be vacated. Accordingly, I allow the defendants' appeal No. 78 of 1967 and dismiss the plaintiff's suit with costs throughout. 10. 9. The result is that the decree passed by the learned Civil Judge must be vacated. Accordingly, I allow the defendants' appeal No. 78 of 1967 and dismiss the plaintiff's suit with costs throughout. 10. The judgment in Appeal No. 78 of 1967 seals the fate of the plaintiff's appeal No. 208/1967, which is hereby dismissed. 11. Learned counsel for the plaintiff Abdul Rehman prays for leave to appeal to Division Bench, Leave is refused. *******