Robert Lindsay Ross, J.

1. This is an appeal by the Defendants, first party. The Plaintiffs are the owners of four annas share in Mauza Sarauni Kalan. The defendants, Second party are the owners of the remaining 12 annas and the Defendants first party are said to be tenants. The suit relates to u. 43 bighas of land which was formerly under water but became fit for cultivation in 1314. The present plaintiffs were not then proprietors in the village. They purchased the share of two Marwaris, Kedar Mal and Nemraj in 1321. Certain proceedings in partition were started in 1907 but were never completed. The Defendants first party are said to have taken possession of the land in suit in 1317 without any legal right so far as the Plaintiffs' share is concerned and the suit has been brought for recovery of possession or for possession jointly with Defendants first party or Defendants second party with mesne profits.

2. The defence of the Defendants first party was that settlement of the land in suit was taken from all the properties at an annual rental of Rs. 174-15-21 gandas in 1316 and that since then these Defendants have been in possession as tenants. It was further alleged that the Plaintiff's predecessors had granted a receipt for rent to the Defendants and that in the partition papers these defendants were recorded as tenants of the land. Of the Defendants second party, the owners of eight annas share in their written statement acknowledged the tenancy of the Defendants first party and the owner of the remaining four annas did not enter appearance. It may, therefore, be taken that as regards 12 annas share the Defendants first party are recognised as tenants.

3. The learned Subordinate Judge found that there had been no settlement with the Defendants first party by the Plaintiffs' predecessors. He further found that there was no proof that rent had been actually received by them and that in any case the receipt granted by their Tahsildar was not a recognition of any tenancy. He consequently held that the Plaintiffs were entitled to a decree for joint possession of a four annas share in the land in dispute with the Defendants first party and to mesne profits.

4. Two main grounds have been taken in appeal. It is contended, in the first place, that on the facts found the Plaintiffs are not entitled to a decree for joint possession, and that their only remedy is to receive rent or a partition. Reliance is placed on the decision in Watson & Co. v. Ram Chand Dutt (1890) 18 Cal. 10=17 I. A. 110=5 Sar. 535 (P. C.), Madan Mohun Shaha v. Rajab Ali (1900) 28 Cal. 223, Dakhyayani Debi v. Mana Raut (1913) 19 C. L. J. 113=22 I. C. 666=19 C. W. N. 407 and Sat Narayan Singh v. Anant Prasad (1919) 51 I. C. 31. The argument briefly is that as to the rights which one tenant in common has against another tenant in common who has taken possession, the rule is that unless there is actual ouster, no action of trespass will lie, but only an account. The principle is that the co-tenant is doing nothing but what is lawful in putting, the land to the use for which it is intended, namely, the production of crops. It is further argued that it is immaterial whether the co-tenant does this by raising the crops himself or by letting the land to a tenant.

5. Now, the Defendants first party in this case allege that they took settlement from all the proprietors. This has been found against them. It is found that they took settlement only from the 12 annas landlords. It is not alleged that the 12 annas landlords settled the land with them as 16 annas landlords. Consequently as to four annas of the holding, they have no settlement at all and there is no authority for saying that in such circumstances the four annas landlord, who has not made any settlement, is not entitled to a decree for joint possession. The decision in Watson's case (1) does not support any such proposition. In that case the essential facts were that one of the tenants in common was in actual occupation of part of the estate and cultivating it as if it were his separate property; and that the other tenant in common attempted to come upon the property in order to carry on operations inconsistent with the course of cultivation in which the former had been engaged. Neither of these elements is present here. Similarly in the case of Madan Mohun Shaha v. Rajab Ali (1900) 28 Cal. 223 the co-sharer landlord who had made the settlement had been in exclusive possession of the tank, the subject-matter of the suit, and had settled it as having been in exclusive possession. The same principle is to be found in Dakhyayani Debi v. Mana Raut (1913) 19 C. L. J. 113=22 I. C. 666= 19 C. W. N. 407 where the landlord who made the settlement had taken possession of the land, apparently without any protest by his co-sharers, and in the ordinary course of management had made the settlement with the Plaintiff. Moreover, all that was decided in that case was that the Plaintiff had the status of a raiyat and that is not disputed in the present case. On the other hand, the decision in Sat Narayan Singh v. Anant Prasad (1919) 51 I. C. 31 is against the Appellants' contention. The cases on the subject were there discussed and it was held that one remedy open to the co-tenant was a decree for joint possession. And in the case of Radha Prasad Wasti v. Esuf (1881) 7 Cal. 414=9 C. L. R. 76 it has been held that no man has a right to intrude upon Ijmali property against the will of the co-sharers or any of them. It is argued that the Defendants first party have the right to the possession of an undivided 12 annas share in the land in suit. This is true, but it is in no way inconsistent with a decree for joint possession in favour of the Plaintiffs. In my opinion, therefore, the first contention fails.

6. The second argument is on the merits of the case. It is contended that from the conduct of parties it should be inferred that all the proprietors consented to the settlement, especially in view of the facts that the Tahsildar of the Plaintiffs' predecessors granted a receipt and that the Defendants first party were in undisturbed possession for nine years. Now, with regard to this receipt, the learned Subordinate Judge has found, in the first place, that there is no satisfactory proof that any payment of rent was actually made, and this finding has not been attacked on appeal. The evidence is reduced to the uncorroborated statement of a single witness and in the circumstances of this case, in view of the relations of the parties, it is difficult to accept such evidence as sufficient. But even if this receipt is taken to be a receipt for money actually paid, it does not lead, in my opinion, to any inference that a tenancy exists between the Plaintiffs and the Defendants first party. It is argued that the Defendants do not rely upon this receipt as a recognition of their tenancy in the sense in which the transfer of a non-transferable holding is required to be recognised; but I can see no difference. The receipt is relied upon as binding the landlord through the act of the Tahsildar and preventing him from denying the relationship of landlord and tenant. New, the receipt granted by a Tahsildar cannot have that effect. In Debi Dayal Pande v. Ram Sakal Pathak A.I.R. 1921 Pat. 156=1921 P. H. C. C. 135 the law on this subject was considered and the rule was deduced that where the Tahsildar has not authority from the landlord, his act in granting a receipt cannot amount to recognition.

7. From the fact that the Defendants' occupation of the land was acquiesced in without remonstrance for nine years, it is argued on the authority of Nityanand Ghose v. Kissen Kishore (1864) W. R. Act X r. 82 that the Defendant' must be treated as tenants. That was a suit by the landlord claiming rent and the execution of a kabuliyat from a person who had occupied land within his zamindari and it was held that a tenancy existed and that the tenant must comply with the requirements of the tenancy. The ground of the decision is that it is not open to a person occupying land to plead in answer to claim for rent that he is a trespasser see In re Hallett's Estate (1880) 13 Ch. D. 696=49 L.J. Ch. 415. But there is nothing to present the landlord from taking this plea. Consequently no tenancy can be inferred here.

8. Much was made of the failure of the Plaintiffs to produce their collection papers. Evidence was given that these papers had been stolen, and it was contended that the evidence was insufficient. That may be so, but it is for the Plaintiffs to say what papers they will produce. The Defendants never sought discovery of these papers and no inference can be drawn against the Plaintiffs from their non-production.

9. The entries in the Batwara papers are referred to in the written statement and it was argued that these raise a presumption of a tenancy. But evidence has been given by Plaintiffs' witness Bachu Lal Das, tashildar, that the name of Balgobind Mandar is not in these papers and that the lands in suit are recorded as Gair Mazrua on the maliks. The Batwara Khesra itself is not produced and there is no evidence to support the allegation in the written statement. Indeed it seems doubtful on the whole evidence whether the defendant No. 1 is a bona fide tenant at all. He is related to one of the Defendants second party Mohan Mandal. There is evidence on both sides that for all settlements made since 1314 Kabuliyats have been executed but in the present case no Kabuliyat is produced. The crops are left at Madan Mandal's Cutchery and in all probability Balgobind is merely his nominee. Therefore on the merits also it seems to me that the appeal must fail.

10. I would dismiss this appeal with costs.

11. W.S. Coutts, J.

12. I agree.