JUDGMENT Mahavir Singh, J. The second appeal has been preferred by the plaintiff. The plaintiffappellant had filed a suit for permanent injunction restraining the defendantsrespondents from interfering in his possession over 7/10 the share in the grove in question and also for recovery of Rs. 525/ by way of damages. The suit was contested by the defendants. They denied that the plaintiffappellant had any share in the grove in question or that he was ever in possession thereof. The learned munsif held that the plaintiffappellant was owner of 7/1oth share and was also in possession and, therefore, the defendantsrespondents were not justified in interfering in his possession so decreed the suit for permanent injunction. He, however, dismissed the suit for recovery of Rs. 525/ for damages. On appeal the learned lower appellate court held that the share of the plaintiffappellant was only 7/24 but he held that he was not in possession and so he was not entitled to any injunction. Accordingly he allowed the appeal and dismissed the suit. The plaintiff's appeal against dismissal of prayer for damages had also been dismissed. In this second appeal the learned counsel for the plaintiff merely contends that the finding of the learned lower court that the plaintiffappellant was not in possession was vitiated as he had not considered the entire evidence on record and, therefore, his relief for injunction should not have been refused. It is pointed out that while dealing with the evidence of possession the learned lower court failed to consider two receipts, namely, exhibits 17 and 18 by which the plaintiff appellant had paid rent to the Government for a share of the grove. Of course it does appear that the learned lower court did not consider these two receipts in his judgment but these receipts do not necessarily show the possession of the person paying the same. The amount of rent is paid by a cosharer whether or not he is in possession actually ornot. So failure to consider these receipts did not vitiate the finding of the learned lower appellate court. In other respects the finding of possession is not open to challenge in the second appeal. The learned counsel for the plaintiffappellant then contends that even if V was not in possession he was still entitled to injunction because the defendantsrespondents were not justified to remain in possession of the entire grove.
In other respects the finding of possession is not open to challenge in the second appeal. The learned counsel for the plaintiffappellant then contends that even if V was not in possession he was still entitled to injunction because the defendantsrespondents were not justified to remain in possession of the entire grove. Reliance for this was placed upon Ram Prasad Tewari v. Sankoor Tewari(1). It was held in that case that a cosharer is entitled to relief for injunction if he is ousted from his possession by the other cosharers because no cosharer is entitled to remain in exclusive possession as against others. The learned lower court had observed that the plaintiffappellant had not been ousted at no particular piece of time but he was not in possession at all. As such that ruling did not apply. There is a force in this contention. In Ram Narain v. Ram Kishan(1950 A.W.R. 541) it was held that "if a cosharer takes up exclusive possession of some joint property peacefully and without any objection on the part of the other cosharers and has remained in such peaceful possession for a considerable time, then the other cosharer is not entitled to disturb his possession." Here in this case the plaintiffappellant had not been found to be in possession and the other cosharers remained in peaceful possession thereof. This was fortified by the finding that the planting of all the trees in grove was done by the remaining cosharers, i. e. defendantrespondents and not by the plaintiffappellant at all. So that shows that this case is not covered by the earlier ruling. Further it has been held in Clihedi Lal v. Chhotey Lal(A.I.R. 1951 Alld. 199) that the question of the right of cosharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a cosharer,whose right in respect of joint land has been invaded by the other cosharers either by exclusively appropriating and cultivating land or by raising constructions thereon." It depends upon the circumstance of each case as to what particular relief may be granted to a cosharer who has been deprived of or is being deprived of his share in the joint property.
In the present case as found by the learned lower court the plantation of the trees in the grove in question has been done only by the defendantsrespondents. If the plaintiffappellant is allowed the relief of injunction, it will permit him to appropriate or to take his particular share therein. It may not be equitable to the remaining cosharers who had taken the trouble of planting trees and nursing the grove. Therefore, the relief for injunction is not proper and the plaintiffappellant can be properly compensated in a partition suit. Accordingly the appeal has no force and it is dismissed. However, in the circumstances of the case parties shall bear their own costs.